Zambapalooza 2012

The north swell is coming. It's not as ominous as "Winter is Coming" in Game of Thrones. In fact, it's something surfers look forward to each year cause it means bigger and more consistent swell, and, consequently, better surf. Proof of the fact that north swell is coming is the holding of surf events left and right, as jump-started by the Surf and Music Festival in La Union. And one of those events is Zambapalooza 2012 which will be held from December 21-23, 2012 at the Crystal Beach Resort in San Narciso Zambales. Zambapalooza is a skim, surf, and skate event along with other fun activities in between such as American football and nightly concerts. It is one of the most anticipated events of the year because of the high-level of talent that join the competition. But, in the end, most people go to Zambapalooza to bond with like-minded individuals who have the same passion for the sun, sand and sea.


(N.B. Zambapalooza poster appropriated for illustrative purposes under the Fair Use doctrine of the Intellectual Property Code of the Philippines)

Surf & Music Festival 2012

Surf + great bands + good vibes = perfect stoke!!

There's no storm in the Philippines but the streets are flooded and dams are overflowing. And it's unusually cold today. This kind of weather makes one sleepy and somnolent. But the moment I saw this poster in facebook, it felt like I just drank two cups of brewed coffee...oblivious to the gloomy weather outside.

I didn't attend the Surf & Summer Festival last year and I regret it to this day. Only a tsunami or the reschedule of the bar exams will make me not attend this event. 

The line-up of bands, by itself, is enough to make the road trip up north worth it -- especially Up Dharma Down, Razorback, Wolfgang, Franco and Urbandub!!! But surfing made this so much more than worth it that missing it should be considered a crime against your soul. 

I can already imagine the picturesque scene - whitewater crashing in the foreshore, the smell of salt water in the air, the sound of guitars, bass, drums, and vocals blasting from the amplifiers, beer in hand, people grooving to the music, enjoying the moment, and most of all -- surfers getting stoked!!! 

Kudos to Aloha Boardsports for organizing this event! 

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N.B. For tour packages visit: Travel Factor's website

For accommodations in Pagudpud visit the following:

Maira-Ira Beach (venue itself)

         Hannah's Beach Resort

         Agua Seda Beach Resort

Saud Beach (18 kms. from Maira-Ira)

         Evangeline Beach Resort

         Arinaya White Beach Resort

         Keahana Beach Resort

Marley In-Ear Headphones, Reviving the Warmth

The packaging alone is sure to catch your attention.
But there's more beneath the fancy facade.

Most law students find it hard to study when it's noisy. That was the case when I was still a law student. And it even finds more urgency now that I'm studying for the bar exams. One reason to shut off the noise is to plug in a set of earphones and listen to music. I do this all the time especially in the library when people talk like they're in the cafeteria. I previously used the iPhone earphones. To be honest, it isn't really that effective in isolating noise.

However, the days of settling for less is over because I recently purchased a pair of Marley In-Ear Headphones. Here are the things I like about this product:

1. You won't hear the world around you. It has noise-isolation features that is perfect for noisy environments (especially libraries!). This will allow you to focus on what you are reading instead of being distracted by the chit chat of other people. Just be conscious cause you might be the one causing the noise already!

You won't find wood in most earphones today.

2. Unique design. Most headphones nowadays are made of plastic and look the same. Marley's headphones look totally different from any other headphone in the market today not only because of its reggae-inspired design, but also because the earpiece itself is made of wood. The fabric covered cord will also get other people's attention. And most of all, the design was inspired by Bob Marley's music.

3. Bass, bass and lots of bass. You'll be surprised of how much bass you've been missing from your iPhone earphones. The amount of bass is just right for you to still hear the other instruments. In other words there is no drowning-out effect.

4. Bose-like quality. Bose prides itself in letting you hear everything that was recorded in the studio -- from the subtlest guitar effect to the faintest backup vocals. And this is not just marketing hype. I know this for a fact cause I have a Bose headphone and has confirmed it while listening to Radiohead songs. Case in point is that, in stores, Bose will let you listen to Norah Jones' songs, which has lots of subtle sounds and layers, while Beats by Dr. Dre will play Maroon 5 songs, wherein the bass almost drowns out the other instruments. Marley's headphones are not as good as Bose's but it's very near and with a more affordable price to boot.

5. It evokes emotions. Most of our gadgets today are too industrial looking. There's no warmth. Just pure functionality and Tron-like aesthetics. In this regard, this headphone is a breath of fresh air. It is mostly made of natural materials, comes in warm colors, and makes you reminisce about the days of casette tapes, walkmans, and vinyl players.

This is one of the coolest pouches I've ever seen.

6. Cool pouch. This pouch not only protects the headphone and prevents the cord from tangling, it also looks nice!

In sum, Marley's In-Ear Headphones are perfect for people who want to drown themselves in music and be oblivious to the world around them.
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For more information about Marley's products click here.

Note: This is not a paid advertisement. It is completely gratuitous!

Are Car Dealers Cheating You During Service?

We have a Mitsubishi Montero Sport. We religiously complied with the car's Periodic Maintenance Service, which means around P5k - P25k per service depending on whether it is light, regular or heavy check-up. Aside from the fact that we trusted the casa more than other repair shops, we also complied with the PMS to keep the warranty. 

With the regular PMS, we felt secure that the Montero will not encounter any breakdown or decrease in performance. However, on our way home from an out of town trip, the check engine indicator suddenly lit up. I also noticed that the exhaust emitted thick black smoke. Prior to this, I noticed that the car's acceleration was restrained and underperforming. 

I couldn't believe it. Before we went out of town, as it was a long trip, we had the Montero serviced in a mitsubishi dealer in Metro Manila. It was a heavy check up that cost around P20,000, not too mention the previous PMSs we had with this dealership. Suffice it to say that the sudden breakdown ruined our vacation.

We were still 200kms away from Manila and it was a Sunday. I pulled over and read the manual. It said: "if the check engine indicator lights up, bring the car to an authorized service center immediately". Problem is all Mitsubshi dealers are closed during sunday. 

Luckily we saw a repair shop by the road. The owner of the shop, after checking the vehicle, first thought the car lacked ATF. Then he realized that it was the fuel filter. So they pumped the fuel filter of dirt -- this time clouds of thick black smoke came out of the exhaust. As a result, the acceleration went back to normal. The owner asked us when we last changed the fuel filter. I said just recently. I checked the official receipt issued by Mitsubishi just to be sure. And I was correct, we paid for a fuel filter amounting to almost P2,500.

After a few days, when we were already in Metro Manila, we went to the Mitsubishi dealer to complain. As expected, they said they replaced it. I was half-expecting them to offer something to console us, but they didn't.

Before going to Mitsubishi, I had the car checked by an independent repair shop. The owner previously worked for Mitsubishi abroad so he pretty much qualifies as an expert. He said, from the looks of it, the fuel filter was not replaced. It looked really old and dirty, as compared to the oil filter. This was odd considering that the latter was positioned closer to the ground, thus more prone to dirt and other elements, than the fuel filter, which can be found near the windshield and the side mirror in a Montero Sport.

And then he said something that really irked me. He said that there is a conspiracy in Mitsubishi dealerships in the Philippines. The mechanics make it appear that they replaced the car's parts and they make you pay for it. The unscrupulous employees, after collecting a considerable number of "sold" parts, then sell the car parts to auto supply shops outside the dealership. Even the security guards are involved -- because without their assistance it's hard to pull out those parts. And regarding the warranty, he said that Mitsubishi doesn't really honor this. What they do is blame you for not maintaining this and that, or for putting this and that, and hence, the warranty is voided. 

But aren't they the ones maintaining the car?? It got me thinking -- is this the reason why they prohibit car owners from entering their service bays? His accusation is hard to prove or disprove precisely because you can't see their personnel changing the filter, oil, coolant, etc.

We contemplated filing civil and criminal actions against the dealership but eventually felt it would be a waste of time and money. Litigations in this country take years to be resolved. Besides, we didn't have enough evidence to win the case. (Although we could use the doctrine of res ipsa loquitur as the basis of our claim.)

So I decided to just share this story so that other car owners will have a more informed decision the next time they plan to bring their car to the casa. I'm not saying all dealerships are crooks -- but some are. It might be a better idea to bring your car, even during the warranty period, to car repair shops where they let you see them work on the car. 

N.B. I'm not out to ruin the good name of Mitsubishi. I love their brand, I like their cars. I wrote this article because I care. I hope the bosses of Mitsubishi Philippines get to read this article so that they can address this issue and instill more transparency into their services.

Peace.

(Note: This is a piece I wrote in Topgear Ph's forum. You can check out the original article at: http://www.topgear.com.ph/board/index.php?topic=6229.0)

Honda City vs. Ford Fiesta vs. Hyundai Elantra Review

Overall, the Honda City is better than the Ford Fiesta and the Hyundai Elantra

Euphoria. This is the perfect word to describe the feeling when may father told me he will buy me a car. So I quickly browsed the internet to read car reviews. I visited various websites including Topgear, and C Magazine, among others. Based on pricing, looks, and quality, I narrowed down my choices to City, Elantra and Fiesta.

If you are the observant type, you would have noticed by now that there is something wrong with my shortlist. Obviously it's not because the manufacturers are different. It's also not because one is from Japan, the other is from Korea, and the last, United States. Still no clue?

Well, it's because the City and Fiesta are from the subcompact category while Elantra is in the compact category. Their sizes are also different. Small, medium and large.

This is precisely why I wrote this piece. When I conducted my "research", I didn't come across any article that compared these cars (or maybe I didn't look hard enough).

I will keep this short and simple. I won't distinguish the displacement of their engines, the type of transmission, the car's suspension, and all other technical matters, which are beyond my comprehension. Just put the brochures side by side and compare them. Or, if you were like me who spent so much time reading the car's literature over and over again, you've already memorized them by now. What I will share to you, instead, is the subjective aspect - the emotions it stirred in me when I actually saw it in person.

Ford Fiesta

The first time I saw a Ford Fiesta I instantly liked it. It's hard not to stare at this car because of it's sporty design and fun colors. That's why it's not surprising that there's so many of them in the roads and that it's Ford Philippines' top selling vehicles, if I am not mistaken.

This was actually our first choice because of Ford's P99K All-in promo and the relatively affordable price tag. However, I changed my mind for several reasons. 

First, it's the smallest of the three. This means that you'll have lesser room to put stuff in it. It will also be uncomfortable for your passengers, if and when, you decide to go on a road trip. Aside from storage and comfort issues, it also doesn't look good for a guy to have such a small car. In other words, the Ford Fiesta doesn't add pogi points to you unless you modify the car to look like a race or rally car. 

Second, the materials in the interior look second-rate. This surprised me because the interior looked nice in the pictures but, when you actually see it in the metal and in full daylight, you'll realize that you've been fooled. The plastic looks and feels inexpensive. The tachometer is not nice to look at. The leather in the steering wheel also feels shoddy.

In sum, the Ford Fiesta lacks the oomph factor and attention to detail. The exterior looks good but the interior is disappointing. In the end, the latter is more important since you'll be spending more time inside the car than outside. A beautifully made interior enhances the driving pleasure. 

Hyundai Elantra

When I first saw this on the road, I couldn't take my eyes off it, especially the rear end. It also came in nice colors and it looked good in every one of them, except the Clean Blue.

But just like the Fiesta, I was disappointed with its interior. Its only saving grace is the topnotch tachometer. But overall the materials look cheap. The steering wheel lacks that premium feel. The dashboard fails to evoke any emotion. In other words, it's too plain. I don't hate it. But I also don't like it. It's like the title of Dishwalla's song, Somewhere in the Middle.

As I said, Elantra's exterior is very appealing. But, at the end of the day, its interior lacks passion and attention to detail. Plus, this car is the priciest of the three.

Honda City

When Honda redesigned the City several years ago, they already made it good looking. But with the 2012 model, they made it even better looking, inside and out.

Exterior-wise, the Hyundai Elantra is the overall winner. But the City is not too far away. I particularly like the tail lights and the chrome grille.

 Interior-wise, the Honda City leads by miles. The moment you step in, you'll instantly notice the attention to detail in this car. The material of the steering wheel feels premium. The plastics look like they were meant for high-end European cars. The tachometer is looks great with its white LED backlight. The dashboard is stunning. To put it simply, the Honda City feels and looks sophisticated. It feels like you're driving a high-end car but without the expensive price tag. If that isn't value for money, I don't know what is.

The Honda City is also competitively priced. Its top of the line variant, the 1.5E, is only P2000 more expensive than the Ford Fiesta's.

****

To be honest, every time I see a Hyundai Elantra, it makes me think if I made the right decision. The Elantra just looks too good in the outside. But overall, I'm happy that I chose the Honda City.

*** N.B. Honda Cars Rizal's service is excellent. They called me to check up on the unit given to me, whether I had complaints, and whether their personnel assisted me well, among others. They also reminded me about the periodic maintenance service of my City. Mitsubishi has a lot to learn from Honda. They're poles apart when it comes to after-sales service. I know this because we previously owned a Montero and was the one who always brought it to Mitsubishi for PMS.

How to Keep Your Sanity in Law School

Law school is hard. Ateneo Law is beyond hard. It's almost an impossible obligation that should be held void for sheer unreasonableness in terms of readings, expectations and standards. Professors don't expect you to know the basics. They expect you to be experts in it. That would be okay if, say, law school is eight years, instead of four, and you only had one subject to study per today. But it isn't. You have three or more subjects in one day but each professor believes his subject is the only one. You have to read so many books and cases per subject but there's not enough time to even finish 1/4 of it. Plus, by the time you do finish the 1/4, your brain is already too stuffed with information that it just wants to shut down and delete the "temporary" files in the hard drive.

So, when you are called for recitation, you end up mixing the facts of one case to another (sometimes they are so similar!). You end up citing the ratio decidendi of Abakada Guro Party List vs. Ermita for Tolentino vs. Secretary of Finance. The professor looks at you, stares for a while, then grabs the class cards in the table and calls one of your classmates to recite the true ratio of the case. That's your cue to sit down and tell yourself how dumb you are to mix up the cases. Your seat mate will then tell you not to worry...that you all have bad recit days, and all other shit just to make you feel better. But you become more embarrassed. You flip through the pages of the SCRA desperately wishing that the professor was the idiot, not you, only to find out that you're stupid for even thinking it was possible.

The class ends. The professor leaves. Another professor enters. You're still in shock. Your hard work did not pay off. You skipped your friends birthday bash just to finish the assigned cases. You only slept for two hours and spent all your allowance in the coffee shop. And yet, all it gave you was five minutes of infamy. But it didn't stop there. By some twisted fate, you get called again for the next class. It doesn't take long for the professor to notice that you are just muttering nonsense, and lots of uhmms and  errs. So, you sit down once again and experience the torment all over again.

This would be the typical day for most law students. Law school is tough. It's meant to be this way so that you'll be ready by the time you go to court and argue your case. Some have lost their sanity because of the tremendous pressure of law school. Some chose to end their lives cause they couldn't deal with the stress and expectations.

But it doesn't have to be that way. The secret to law school is so simple. Don't take it too seriously! At the end of the day, your health and your sanity is more important than having high recitation grades or being highest in the midterms exam. Believe me, the latter will only make you feel good for a very short span of time you'd actually wish you didn't feel it at all. So, without further ado, the following are ways to keep your sanity in law school.

1. Get a life. Study intensely from Monday to Saturday afternoon and reserve the rest for leisure. Go out on a date. Binge on alcohol. Get stoned. Walk pointlessly in the mall. Start a hobby. Just don't study anymore, please! But don't drink on Sunday night because it will be hard to study the next day because of your hangover.

2. Get out of Metro Manila! Part of the reason why law school is stressful is because Metro Manila is a stressful environment. Your lungs deserve fresh air every once in a while. It's food for your brain too. And it's also relaxing to see fields of green instead of the fields of billboard in EDSA.

3. Go to your block's party. As they say, misery loves company. Collectively drown your miserable lives with lots of alcohol and loud music. It's a good feeling to know that you're not the only one having a hard time in law school. Plus, it's a good chance to talk the person you've been eyeing in class.

4. Watch a gig. There are so many talented bands in the underground music scene right now that could take away your stress in an instant. Watching live musical performances is a good way of forgetting about bad recits, low midterm grades, and the unbearable pressure of law school.

5. Go surfing! This is related to number 2 above. As there are no surfing spots in Metro Manila (unless you count Manila bay), you have no choice but to get the hell out of this urban hell to experience the pure joy of surfing. There are many surf spots near Manila such as San Felipe in Zambales, San Juan in La Union, and, of course, Baler in Aurora! Believe me, you won't dwell on bad recits anymore after you ride your first wave!

Albano vs. Reyes (digest)

Albano vs. Reyes

175 SCRA 264 | Paras, J.

Facts:

The Philippine Ports Authority (PPA) board directed the PPA management to prepare for the public bidding of the development, management and operation of the Manila International Container Terminal (MICT) at the Port of Manila. A Bidding Committee was formed by the DOTC for the public bidding. After evaluation of several bids, the Bidding Committee recommended the award of the contract to respondent International Container Terminal Services, Inc. (ICTSI). Accordingly, Rainerio Reyes, then DOTC secretary, declared the ICTSI consortium as the winning bidder.

On May 18, 1988, the President of the Philippines approved the same with directives that PPA shall still have the responsibility for planning, detailed engineering, construction, expansion, rehabilitation and capital dredging of the port, as well as the determination of how the revenues of the port system shall be allocated for future works; and the contractor shall not collect taxes and duties except that in the case of wharfage or tonnage dues.

Petitioner Albano, as taxpayer and Congressman, assailed the legality of the award and claimed that since the MICT is a public utility, it needs a legislative franchise before it can legally operate as a public utility.

ISSUE: Whether a franchise is needed for the operation of the MICT?

Held: No. While the PPA has been tasked under E.O. No. 30 with the management and operation of the MICT and to undertake the provision of cargo handling and port related services thereat, the law provides that such shall be “in accordance with P.D. 857 and other applicable laws and regulations”. P.D. 857 expressly empowers the PPA to provide services within Port Districts “whether on its own, by contract, or otherwise”.

Even if the MICT is considered a public utility, its operation would not necessarily need a franchise from the legislature because the law has granted certain administrative agencies the power to grant licenses for or to authorize the operation of public utilities. Reading E.O. 30 and P.D. 857 together, it is clear that the lawmaker has empowered the PPA to undertake by itself the operation and management of the MICP or to authorize its operation and management by another by contract or other means, at its option.

Doctrine: The law granted certain administrative agencies the power to grant licenses for the operation of public utilities. Theory that MICT is a “wharf” or a “dock”, as contemplated under the Public Service Act, would not necessarily call for a franchise from the Legislative Branch.

©2012. Fair use is permissible but proper attribution is required. 

Luzon Stevedoring vs. Public Service Commission (digest)

Luzon Stevedoring Co. Inc. and Visayan Stevedore Transportation Co. vs. Public Service Commission

93 Phil. 735 | Tuason, J.

Facts: Petitioners are engaged in the stevedoring or lighterage and harbor towage business. They are also engaged in interisland service which consist of hauling cargoes such as sugar, oil, fertilizer and other commercial commodities. There is no fixed route in the transportation of these cargoes, the same being left at the indication of the owner or shipper of the goods. Petitioners, in their hauling business, serve only a limited portion of the public.

The Philippine Shipowners’ Association complained to the Public Service Commission that petitioners were engaged in the transportation of cargo in the Philippines for hire or compensation without authority or approval of the Commission. The rates petitioners charged resulted in ruinous competition.

The Public Service Commission restrained petitioners from further operating their watercraft to transport goods for hire or compensation between points in the Philippines until the commission approves the rates they propose to charge.

Issue: Whether the petitioners fall under the definition in Section 13 (b) of the Public Service Law (C.A. Act No. 146)?

Held: Yes. It is not necessary under said definition that one holds himself out as serving or willing to serve the public in order to be considered public service. It is not necessary, in order to be a public service, that an organization be dedicated to public use, i.e., ready and willing to serve the public as a class. It is only necessary that it must in some way be impressed with a public interest; and whether the operation of a business is a public utility depends upon whether or not the service rendered by it is of a public character and of public consequence and concern.

It can scarcely be denied that the contracts between the owners of the barges and the owners of the cargo at bar were ordinary contracts of transportation and not of lease. Petitioners’ watercraft was manned entirely by crews in their employ and payroll, and the operation of the said craft was under their direction and control, the customers assuming no responsibility for the goods handled on the barges.

C.A. No. 146 clearly declares that an enterprise of any of the kinds therein enumerated is a public service if conducted for hire or compensation even if the operator deals only with a portion of the public or limited clientele. Public utility, even where the term is not defined by statute, is not determined by the number of people actually served.

The Public Service Law was enacted not only to protect the public against unreasonable charges and poor, inefficient service, but also to prevent ruinous competition.

Just as the legislature may not declare a company or enterprise to be a public utility when it is not inherently such, a public utility may not evade control and supervision of its operation by the government by selecting its customers under the guise of private transactions.

Doctrine: An enterprise of any of the kinds enumerated in the Public Service Law is a public service if conducted for hire or compensation even if the operator deals only with a portion of the public or with limited clientele.

People v. Elesterio; Fe Cruz v. Ex-Judge Enrique Agana (Digest)

Facts: After a brief pursuit operation, policemen found a .32 caliber revolver and two rounds of live ammunition in the person of Ricardo Elesterio. They also recovered the holster Elesterio dropped while attempting to escape. The Assistant City Fiscal filed an information against him in the Court of First Instance of Pasay City for violating General Order No. 6 in relation to Presidential Decree No. 9.

Elesterio pleaded not guilty during arraignment. During the trial on 14 August 1981, Patrolman Nepomuceno narrated the arrest and search while Elesterio testified that the gun was passed to him by one Ray Arong minutes before the patrol car passed by. Judge Agana asked if the defense had any more witness. The defense counsel said other witness would corroborate the testimony that Elesterio had earlier gone to several discotheques but the judge said such would only be cumulative evidence. The defense rested their case. Judge Agana then dictated his decision in open court finding the accused guilty and sentencing him to life imprisonment. Elesterio appealed.

Elesterio, after being committed in Bilibid prison, was able to escape on October 1981. He was recaptured on March 1983. Fe Cruz, his aunt, filed a petition for habeas corpus. The SC dismissed the habeas corpus case.

ISSUE: Whether the trial court erred when it 1) dispensed with other testimonies, 2) concluding the case in one sitting, 3) dictated the decision in open court immediately after trial?

Held:

1) No. Judge Agana had the right to control the proceedings and to bar unnecessary testimony that are merely intended to delay the case.

2) No. If all the evidence needed by both parties could be presented in one single session, there is no reason why any resetting could be made.

3) Yes. Judge Agana was exceptionally careless, if not deliberately high-handed. It seemed that he had prejudged the case and had a prepared decision even before the submission of the case. What is worse is that the decision is wrong. Elesterio cannot be convicted of violating General Order No. 6 in rel. to PD No. 9 because the second element (motive for carrying firearm is in furtherance of rebellion, subversion, insurrection, lawless violence, criminality, chaos or public disorder) is not alleged at all. All that is alleged is that Elesterio possessed an unlicensed firearm with two live bullets outside his residence. It is a wonder that Judge Agana did not see this very obvious omission. Perhaps he chose not to see it.

However, Elesterio is not entirely guiltless. He can be convicted for illegal possession of firearms under the provision of Section 2692 of the Revised Administrative Code. Under this provision, mere possession of an unlicensed firearm is malum prohibitum and is punishable regardless of lack of criminal intent or proof of the ownership of the firearm by another person. 

SSSEA vs. Bathan-Velasco

Social Security System Employees Association vs. Bathan-Velasco

Petitioner: Social Security System Employees Association (SSSEA)(PSLINK-TUCP)

Respondent: Perlita Bathan-Velasco, Officer in Charge, Bureau of Labor Relations, Alert and Concerned Employees for Better SSS (ACCESS), Social Security System

313 SCRA 250

Date: 08/27/1999

FACTS:

·      ACCESS filed with the Bureau of Labor Relations a petition for certification election to determine the sole and exclusive bargaining representative of the rank and file employees of SSS.

·      The Bureau of Labor Relations ordered the certification election among the rank and file employees of the SSS in its main office.

·      On October 11, 1991, ACCESS garnered 1,378 votes while SSSEA obtained 1,116 votes in the certification election.

·      SSSEA filed with the Bureau of Labor Relations an election protest and/or motion to annul the certification election. The protest and motion was denied.

·      Bathan-Velasco, Officer in Charge, Bureau of Labor Relations, also denied the Election Protest and/or Motion to Nullify Certification Elections in the Regional Offices After October 11, 1991. She also declared ACCESS as the sole and exclusive bargaining representative of all the rank and file employees of SSS.

·      Bathan-Velasco denied SSSEA’s motion for reconsideration.

·   SSSEA filed special civil action for certiorari with the Supreme Court. SSSEA argues that no certification election was held in the regional offices of respondent SSS. They also argue that the certification election should not have proceeded because of the pendency of a formal charge of a company-initiated union with the Bureau of Labor Relations.

ISSUE:

(1)  Whether or not SSSEA failed to exhaust all administrative remedies before resorting to the courts? YES!

HELD/RATIO:

·      SSSEA failed to take an appeal from the order of Bathan-Velasco to the Secretary of Labor, pursuant to Article 259 of the Labor Code.

·      When a party fails to exhaust all administrative remedies, a premature resort to the courts would result in the dismissal of the petition.

·      Moreover, the issues raised by SSSEA in its special civil action for certiorari involve a review of the factual findings of the Bureau of Labor Relations.

·      Factual issues are not proper subjects of an original petition for certiorari before the Supreme Court, as its power to review is limited to questions of jurisdiction, or grave abuse of discretion of judicial or quasi-judicial tribunals or officials. Judicial review does not extend to an evaluation of the sufficiency of the evidence upon which the proper labor officer or office based his or its determination.

Nazareno vs. City of Dumaguete

Nazareno vs. City of Dumaguete

527 SCRA 509

·       Agustin R. Perdices won over incumbent Mayor Felipe Antonio B. Remollo for the mayoralty post. He was to assume office on June 30, 2001.

·      Before Perdices’ assumption, Remollo made fifteen (15) promotional appointments, and seventy-four (74) original appointments for various positions in the city government.

·       July 2, 2001: Remollo dishonored the appointments made by Remollo.

·       Leah M. Nazareno, et al, filed with the RTC of Dumaguete City a Petition for Mandamus, Injunction and Damages against the City of Dumaguete, represented by Mayor Remollo.

·       Aug. 1, 2001: Director Abucejo of the Civil Service Commission Field Office (CSCFO) invalidated and revoked the questioned appointments as they were issued in violation of the guidelines set forth by the CSC.

·       Aug. 3, 2001: RTC issued a writ of prelim injunction against the City Government pending the final adjudication of the case. The court reversed Director Abucejo’s on the ground that the questioned appointments may only be invalidated by the Regional Office upon recommendation by the CSCFO.

·       City of Dumaguete claimed that Director Abucejo’s decision already became final after petitioner’s failed to move for reconsideration of the same. They moved for the dismissal of the injunction case. RTC denied the motion to dismiss but agreed with the finality of the decision. It permanently lifted the preliminary injunction.

·       Nazareno et al, appealed to the CA. The appeal was denied and dismissed by the court.

ISSUE:

(1)    Whether or not the petition for injunction filed by Nazareno et al. is premature? YES!

HELD/RATIO:

·      Nazareno et al. prematurely filed the injunction because there was still no invalidation of their appointments. The filing was only prompted by Mayor Perdices’ announcement that he was dishonoring the appointments made by former mayor Remollo. The invalidation only took place on August 1, 2001.

·      After the invalidation, they could still file an appeal with the CSC Regional Office. Thus, they had ample administrative remedies under the law to protect their rights but they chose to go straight to the regular courts.

·      Injunction is not designed to protect contingent or future rights, and as such, the possibility of irreparable damage without proof of actual existing right is no ground for injunction.

·      The Court refused to rule on the validity of the appointments since it was the subject of a separate petition for review before the Court of Appeals.

·      Thus, it held that there was no need for the separate case of injunction since Nazareno et al. are given by law and related rules adequate remedies to protect their rights and interests. 

Spec Pro Midterms Reviewer (Atty. Chua)

RULE 72

Q: What are the cases covered by special proceedings?

A:   1) Settlement of estate of deceased person

       2) Escheat

       3) Guardianship

       4) Change of name

       5) Habeas corpus

       6) Hospitalization of insane persons

       7) Adoption

       8) Rescission and revocation of adoption

       9) Trustees

       10) Voluntary dissolution of corporations

       11) Judicial approval of voluntary recognition of minor natural children

       12) Constitution of family home

       13) Declaration of absence and death

       14) Cancellation or correction of entries in the civil registry

Q: Distinguish special proceedings from ordinary proceedings.

A: A special proceeding is an application to establish the status or right of a party or a particular fact. An ordinary proceeding concerns the prevention or redress of a wrong or the enforcement or protection of a right.

A special proceeding is not adversarial while an ordinary proceeding is. Courts that hear special proceedings are of limited jurisdiction. In ordinary proceedings courts are of general jurisdiction.

Q: Is the question of residence determinative of jurisdiction of the court?

A: No. It is determinative only of the venue. Hence, the institution of the proceeding in the province wherein the decedent neither had residence nor estate does not vitiate the action of the probate court. As venue may be waived, the submission of all affected parties to said proceeding is a waiver of objection to this error.

However, if objection to venue is seasonably raised, the petition should be dismissed and the proceedings should be instituted in the proper court.

Q: What if the proceedings were instituted in two courts and the question of venue is seasonably raised?

A: The court in which the proceeding was first filed has exclusive jurisdiction to resolve the issue.

Q: Can the probate court be divested of jurisdiction?

A: No. The probate court acquires jurisdiction over the proceeding from the moment the petition for settlement is filed with said courts. It cannot be divested of such jurisdiction by the subsequent acts of the interested parties such as by entering into an extrajudicial partition of the estate or by filing another petition for the settlement in a proper court of concurrent venue.

Q: Will an action for recovery of a debt of the conjugal partnership prosper against the surviving spouse?

A: No. Upon the death of a spouse, no action can be maintained against the surviving spouse for the recovery of a debt chargeable against the conjugal partnership, as the claim should be filed in the settlement proceeding of the estate of the deceased spouse.

Q: As a general rule, the probate court cannot determine title to property. In what instances may it pass upon the question of title to property?

A:  a) Where the interested parties who are all heirs of the deceased consent thereto and the interests of third parties are not prejudiced;

    b) In a provisional manner, to determine whether said property should be included in or excluded from the inventory, without prejudice to the final determination of title in a separate action;

     c) If the question is one of collation or advancement;

Q: What are the matters that the probate court has the power to determine?

A:  a) Who are the heirs of the decedent;

      b) The recognition of a natural child;

      c) The validity of disinheritance effected by the testator;

      d) The status of a woman who claims to be the lawful wife of the decedent;

      e) Validity of a waiver of hereditary rights;

      f) Whether the property in the inventory is conjugal or exclusive property of the deceased spouse.

Q: As a general rule, the probate courts cannot issue writs of execution. What are the exceptions?

A:  a) To satisfy the contributive shares of the devisees, legatees, and heirs in possession of the decedent’s assets;

      b) To enforce payment of the expenses of partition;

      c) To satisfy the costs when a person is cited for examination in probate proceedings.

     These exceptions are EXCLUSIVE.

RULE 74

Q: What are the distinctions between extrajudicial settlement and summary settlement?

A: a. Extrajudicial settlement does not require court intervention while summary settlement involves judicial adjudication although in a summary proceeding.

b. In the first, the value of the estate is immaterial, while the second applies only where the gross estate does not exceed P10,000.

c. Extrajudicial settlement is allowed only in intestate succession, while summary settlement is allowed in both testate and intestate estates.

d. The first is proper only where there are no outstanding debts of the estate at the time of settlement, while the second is available even if there are debts, as the court will make provisions for the payment thereof.

e. Extrajudicial settlement can be resorted to only at the instance and by agreement of all the heirs, while summary settlement proceedings may be instituted by any interested party and even by a creditor of the estate, without the consent of all the heirs.

RULE 75

Q: Does the doctrine of estoppel apply in probate proceedings?

A: No. The presentation and probate of a will are required by public policy and they involve public interest.

Q: As a general rule, the probate court can only pass upon the extrinsic validity of the will. The exception is when the defect is apparent on its face. Give examples of apparent defect of a will.

A: 1) Complete preterition of the heirs

2) The will stated that the devisee was the paramour of the testator

RULE 76

Q: What are the jurisdictional facts required to be alleged in the petition for probate:

A: a) That a person died leaving a will;

   b) In the case of a resident, that he died in his residence within the territorial jurisdiction of the court, or, in case of a     nonresident, that he left an estate within such territorial jurisdiction.

    c) That the will has been delivered to the court.

Q: Which of the following statements is false? 

a) A creditor of the decedent may file a petition for the settlement of the latter’s estate.

b) The executor may file a petition for the settlement of the testator’s estate.

c) An heir who has assigned or renounced his hereditary rights may file a petition for the settlement of the estate.

d) A devisee may file a petition for the settlement of the testator’s estate.

ANSWER: C

An heir who has assigned or renounced his hereditary rights has no legal interest as would authorize him to initiate such proceedings.

Q: Which of the following statements is true?

a) The probate of a will is a proceeding in rem and the publication provided for by Rule 76 is a jurisdictional requirement.

b) The personal service of notice upon the heirs is a jurisdictional requirement.

c) There should be a lapse of 21 days between the first publication and date of hearing.

d) If the testator asks for the allowance of his own will, notice must be sent to his compulsory heirs, legatees and devisees.

ANSWER: A

See In re Estate of Johnson, 39 Phil 156 cited in Regalado, p. 31.

Q: What must be established to prove a lost or destroyed notarial will?

A: 1. The due execution and formal validity of the will;

    2. The existence of the will at the time of the death of the testator or its fraudulent or accidental destruction in the lifetime  of the testator without his knowledge;

    3. The provisions of said will, to be testified to by at least two credible witnesses.

RULE 77

Q: What must the proponent prove at the proceedings for the re-probate of the will in the Philippines?

A: a) That the testator was domiciled in a foreign country;

b) That the will has been admitted to probate in such country;

c) That the foreign court was, under the laws of said foreign country, a probate court with jurisdiction over the proceedings;

d) The law on probate procedure in said foreign country and proof of compliance therewith; and

e) The legal requirements in said foreign country for the valid execution of the will.

RULE 78

Q: Which of the following statements is false?

a.     A party indebted to the decedent’s estate cannot compatibly perform the duties of an administrator and should not be appointed as such.

b.     Clerks of court and other court personnel of probate courts should not be appointed as administrators or receivers of estates of deceased persons.

c.      The order of preference in the appointment of an administrator cannot be disregarded.

d.     Administration is granted when no executor is named in the will, or the executor or executors are incompetent, refuse the trust, or fail to give bond or a person dies intestate.

Answer: C

It may be disregarded for valid cause. (See Sec. 6, Rule 79; Capistrano vs. Nadurata, 46 Phil. 726)

RULE 80

Q: Which of the following statements is false?

a) A special adminstrator may be appointed when the regular administrator or executor has a claim against the estate.

b) The order of preference in the appointment of regular administrators applies to the appointment of a special administrator.

c) The order appointing a special administrator is an interlocutory order and is not appealable.

d) The special administrator has also the duty to submit an inventory and to render an accounting of his administration as required by the terms of his bond.

Answer: B

See Roxas vs. Pecson, et al., 82 Phil 407

Q: As a general rule, a special administrator cannot be sued by a creditor for the payment of a debt of the deceased. What are the instances when the special administrator can be made a defendant?

A: 1) When the creditor would suffer the adverse effects of the running of the statute of limitations against them if the appointment is delayed;

2) A mortgagee may bring an action for the foreclosure of a mortgage of a property of the estate against a special administrator.

RULE 82

Q: Should the administrator be removed if it is subsequently discovered that he was indebted to the estate?

A: No. It is not a ground for removal absent any other circumstance indicative of bad faith or lack of integrity on his part.

Q: What if the administrator is later held to be without right intervene as heir in the settlement of the estate?

A: It is still not a ground for removal since even a stranger can be appointed as an administrator.

RULE 85

Q: Give examples of items that have been held NOT to be proper expenses of administration, and therefore, not chargeable against the estate.

A: a) The services rendered by an administrator in favor of an heir which services were not beneficial to the estate;

b) Premiums for his bond;

c) Expenses for the repair of property of the estate being occupied and used by him;

d) Expenses for the keeping of ordinary records and receipts involved in his administration work;

e) Losses incurred in the conduct of business with the use of the funds of the estate.

Q: Is the administrator or executor liable for the services rendered by an attorney to the administrator or executor personally to aid in the execution of the trust?

A: Yes. However, the administrator or executor can move for reimbursement and charge such fees as expenses of administration where the same is reasonable and proved beneficial to the estate.

Where, however, the attorney’s services were rendered in a litigation involving such administrator or executor in his capacity as trustee of the estate and for the protection of the interests of such estate, the attorney’s fee is directly chargeable to the estate.

Q: How should the attorney recover his fees?

A: He may either bring an independent action personally against the executor or administrator, or file a petition in the administration proceedings for the probate court to allow the same and to direct the payment of his fees as an expense of administration.

RULE 86

Q: Are claims by the government for unpaid taxes covered by the statute of non-claims?

A: No. They are monetary obligations created by law. Claims for taxes due and assessed after the death of the decedent need not even be presented in the form of a claim; the probate court may just direct the executor or administrator to pay the same. In fact, even after the distribution of the estate, claims for taxes may be enforced against the distributes in proportion to their shares in the inheritance.

Q: How about claims based on quasi-contract?

A: Yes. It should be deemed included in the concept of claims under sec. 5 which speaks of “implied” contracts. (Regalado, p. 75)

Rule 87

Q: Can a legatee bring an action against the executor to compel the payment of the legacy?

A: Yes. According to Regalado, the Del Rosario ruling still appears to be valid up to the present since Sec. 3 of Rule 87 only prohibits an action against the executor or administrator by an heir or devisee with respect to lands.

Rule 89

Q: The sale of real property may be allowed by the court if the petition avers: a) that the personal estate is not sufficient to pay the debts, expenses of administration and legacies, or that the sale of such personally may injure the business or interests of the persons interested in the estate; b) That the testator has not otherwise made sufficient provisions for the payment of such debts, expenses of administration and legacies; and c) That such sale or encumbrance would be beneficial to the parties interested in the state. Name another requisite in the petition.

A: There must be averment as to the value of the personal estate. Without such averment, the court has no jurisdiction to authorize the sale of realty. If the court should authorize the sale of real property despite such defect in the petition, the sale of such real property is null and void.

Q: Can the probate court validly order the sale of a mortgaged property?

A: No. It has no authority to do so as that would be equivalent to a foreclosure action being adjudicated in the settlement proceeding.

Rule 90

Q: What must be paid first before distribution is ordered?

A: Debts, funeral charges, expenses of administration, allowance to the widow and estate tax. Regalado believes that Sec. 1 also include the allowances to the children of the deceased as payment of such allowances during the pendency of the administration proceedings is specifically authorized by Sec. 3, Rule 83. Also, the legacies must have been paid as this is directed by Sec. 15, Rule 88.

He also notes that an advance or partial distribution may be allowed provided the foregoing obligations are secured by a bond.

Rule 92

Q: What is the rule when there is an issue as to who has a better right or title to properties conveyed in the course of the guardianship proceedings?

A: The controversy should be threshed out in a separate ordinary action as the dispute is beyond the jurisdiction of the guardianship court. However, where the right or title of the ward to the property is clear and indisputable, the guardianship court may issue an order directing its delivery or return.

Rule 97

Q: Which court should decide the petition for restoration to capacity?

A: The court which appointed the guardian is also the court competent to decide the petition for restoration capacity which is merely a continuation of the original guardianship proceeding. Also, the petition for the removal of the guardian must be filed in the same guardianship proceeding. It must be based only on the grounds in Sec. 2 of this rule which must be satisfactorily proved.

Rule 98

Q: Does this rule apply to all types of trusts?

A: No. This rule applies only to express trusts as these are understood in Arts. 1443 to 1446 of the Civil Code, and does not apply to implied trusts which arise by operation of law.

Q: Distinguish executors and trustees regarding bond.

A: An executor will not be exempted from posting a bond even if such exemption is provided in the will, but a trustee appointed in the will may be exempted from such bond when so directed in the will.

Q: Distinguish executors, trustees, and guardians regarding accounts.

A: Accounts of trustees must be under oath and shall be filed annually. The latter is also true for guardians, except that they need not be under oath. Administrators or executors are not required to be under oath, and except for the initial and final submission of their accounts, they shall be filed only as such times as may be required by the court.

Rule 101

Q: When should the Secretary of Health petition for the hospitalization of insane persons?

A: It should be filed by the Secretary of Health if the person in custody or having charge of said insane person refuses to do so and where it is required for the welfare of the insane person or the public.

Q: What is the rule on the discharge of the insane?

A: Where the insane person was judicially committed to the hospital or asylum, the SOH cannot order his release without the approval of the RTC which ordered the commitment. Also, the said court cannot order his release without the recommendation of the SOH.

Rule 102

Q: Habeas corpus is the remedy in all cases of illegal confinement or detention or where the rightful custody of a person is withheld from one entitled to such custody. Give other instances when the writ is available.

A: It may be availed of where, as a consequence of a judicial proceeding, a) there has been a deprivation of a constitutional right resulting in the restraint of a person, b) the court had no jurisdiction to impose the sentence, or c) an excessive penalty has been imposed, such sentence being void as to such excess.

It is also available to give retroactive effect to a penal provision favorable to the accused pursuant to Art. 22 of the RPC.

Q: Does the writ lie against the order of the Deportation Board?

A: No. While section 4 refers to restraint of a person under process of a court of record, such process may also be issued by a governmental agency authorized to order his confinement, as in the case of the Deportation Board, and the courts have no authority to release the party thus committed even in habeas corpus proceedings.

Q: What is a preliminary citation?

A: Where the person is detained under governmental authority and the illegality of his detention is not patent from the petition for the writ, the court may issue a citation to the government officer having the person in his custody to show cause why the writ of habeas corpus should not issue.

Q: What is a peremptory writ?

A: It is issued when the cause of the detention appears to be patently illegal and the non-compliance therewith is punishable.

Q: Discuss the burden of proof after the writ has been returned.

A: If the detention is by reason of public authority, the return is considered prima facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the restraint is illegal. On the other hand, if the detention is by reason of private authority, the return is considered only a plea of facts asserted therein and the person responsible for the detention has the burden of proof to establish that the detention is legal and justified.

Q: Can the person released by virtue of the writ avail of the privilege again?

A: Yes. When the person so released continues to be denied one or more of his constitutional freedoms, where there is present a denial of due process, or where the restraints are not merely involuntary but appear to be unnecessary, the person

Rule 103

Q: What have been held to be valid grounds for a change of name?

A: 1. The name is ridiculous, dishonorable or extremely difficult to write or pronounce;

2. When the change results as a legal consequence, as in legitimation;

3. It will avoid confusion;

4. Having continuously used and been known since childhood by a Filipino name, unaware of her alien parentage;

5. A sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody.

Q: Can legal separation be a ground for change of name?

A: No. A married woman’s status is not affected by a decree of legal separation as the vinculum is not severed, hence she must continue to use her married name.

Q: What is the requirement as to aliases in the title of the petition?

A: It must be set forth in the title of the petition otherwise, although the petition has been duly published, such defect would be fatal even if said other aliases are contained in the body of the petition.

Q: Who is affected by the grant of the change of name?

A: A change of name granted by the court affects only the petitioner. A separate petition for change of name must be filed for his wife and children.

RULE 108

Q: Can substantial errors in the registry be corrected under this rule?

A: Yes, provided the parties avail themselves of the appropriate adversary proceeding; and that the proceeding under Rule 108 ceases to be summary in nature and takes on the character of an appropriate adversary proceeding when all the procedural requirements therein are complied with.

*** I made this reviewer for our Spec Pro class under Atty. Chua in Ateneo Law. Please share and spread the word about this blog. Thanks! And good luck!