DOUBLE SALE OF REAL PROPERTY

FACTS: For his bootlegging business, Pete Castellano is renting Lipari warehouse from Turk Sollozzo. One day, Sollozzo sold the said property to Castellano and the latter paid the selling price upon the execution of their handwritten agreement. 

A few years later, Tony Soprano appeared at the warehouse demanding that Castellano leave the premises as he allegedly bought the property from Turk Sollozzo. Soprano showed Castellano a notarized deed of absolute sale and served upon the latter a notice to vacate, with a warning that any failure of Castellano to comply would result in a court action or a "friendly visit" by enforcers from the Soprano family.

As Castellano's consigliere, he seeks your wisdom on the matter.

ISSUE: Who has the better right to the warehouse?

HELD: In double sale of an immovable, the following is the established rule of preference in determining ownership:

(a)            the person acquiring it who in good faith first recorded it in the Registry of Property;

(b)            the person who in good faith was first in the possession; and

(c)             in the absence thereof, to the person who presents the oldest title, provided there is good faith .

It must be observed that the law strictly requires that before the second buyer can obtain priority over the first, he must show that he acted in good faith throughout (i.e., in ignorance of the first sale and of the first buyer’s rights) from the time of acquisition until the title is transferred to him by registration or failing registration, by delivery of possession.

It must be noted that Soprano cannot be deemed to be in good faith because when he bought the real property, it is in possession of Castellano, a person other than the seller, Sollozzo. In the case of Conspecto vs. Fuerto, the Supreme Court pronounced that, one who purchases real property which is in actual possession of others should, at least, make some inquiry concerning the rights of those in possession. The actual possession by people other than the vendor should, at least, put the purchaser upon inquiry. He can scarcely, in the absence of such inquiry, be regarded as a bona fide purchaser as against such possessions.

Bouncing Checks. BP Blg. 22 Notice of Dishonor Requirement

FACTS: Clemenza issued a check to Don Barzini in payment for some prior obligations of the family. However when Don Barzini deposited the check in the bank, the same bounced due to insufficient funds. Affronted, Don Barzini wanted to send Clemenza to go sleep with the fishes, but his consigliere prevailed upon him to file a case in for violation of Batas Pambansa Blg. 22 instead, in order to preserve peace between their families. Don Barzini assented but insisted that the case be filed right away.

ISSUE: Will the case prosper, considering that the check was indeed issued for a consideration and later bounced?

HELD: The case will be dismissed. Don Barzini failed to prove that Clemenza knows that at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment. Don Barzini did not serve a notice of dishonor to Clemenza in order that a presumption of such knowledge would arise against the latter. 

The elements of the crime are, as follows: 

(1) the making, drawing, and issuance of any check to apply on account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.

The first and last elements are relatively easier to establish as compared to the second element, which is a state of mind of the accused. It is difficult to prove that the issuer of the bounced check knows that he does not have sufficient funds for the payment of the check in full upon its presentment.

Hence, Section 2 of B.P. Blg. 22 creates a presumption of knowledge of insufficiency of funds under the following circumstances:  

Sec. 2. Evidence of knowledge of insufficient funds. — The making, drawing, and issuance of a check payment of which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has not been paid by the drawee.

   

RE-ELECTION PREVENTS REMOVAL FROM OFFICE

FACTS: During Bruno Tattaglia’s first term as elected councilor of Little Italy, he was administratively charged before the Office of the Ombudsman for violation of the anti-graft law because of certain alleged favors to the local mob. During the pendency of the case, he was again re-elected to the same position. And, during his third re-election to the same office, the Ombudsman issued an administrative decision removing him from said position. 

ISSUE: Can re-elected councilor Bruno Tattaglia be administratively removed from his post for an alleged offense committed during his first term of office?

HELD: No, he can no longer be removed from office, because his re-election has rendered the administrative offense as moot and academic. In the case of Rodolfo Aguinaldo vs. Hon. Luis Santos, et al., G.R. No. 94115, 21 August 1992, the Supreme Court declared therein, that Aguinaldo’s re-election has rendered the pending administrative case against him moot and academic.

     Clear then, the rule is that a public official cannot be removed for administrative misconduct committed during a prior term, since his re-election to office operates as a condonation of the officer's previous misconduct to the extent of cutting off the right to remove him therefor.

What to do if appeal is denied

When a judgment or final order is rendered by any court in a case, and a party thereto, by fraud, accident, mistake, or excusable negligence, has been prevented from taking an appeal, he may file a petition in such court and in the same case praying that the appeal be given due course.

·        file a Petition for Relief from Denial of Appeal

·        Grounds:

o   Fraud, accident, mistake or excusable negligence.

·        Attach: Affidavit of Merits executed by the petitioner showing:

o   the fraud, accident, mistake and excusable negligence  and

o   the facts constituting his good and substantial defense or cause of action

·        Periods (when to file):

o   within 60 days from learning of the denial of the appeal

o   Not more than 6 months after the judgment being appealed from has been recorded in the book of entries for judgments

o   These two periods are not extendible and never interrupted (Quijano vs. Tameta)

o   Both periods must be complied with (Phil. Rabbit Bus Lines vs. Arciaga)

·        Where to file:

o   Court of origin (the court which issued the assailed judgment)

Punishable Acts and the Penalties under R.A. 9262 (Anti-Violence Against Women and Children Act)

Punishable Acts

Section 6. Public Crime. – Violence against women and their children shall be considered a public offense, which may be prosecuted upon the filing of a complaint by any citizen having personal knowledge of the circumstances involving the commission of the crime.

Section 7. Acts of Violence Against Women and Their Children. – The crime of violence against women and their children is committed through any of the following acts:

a) Causing physical harm to the woman or her child;

b) Threatening to cause the woman or her child physical harm;

c) Attempting to cause the woman or her child physical harm;

d) Placing the woman or her child in fear of imminent physical harm;

e) Attempting to compel or compelling the woman or her child to engage in conduct which the woman or her child has the right to desist from or to desist from conduct which the woman or her child has the right to engage in, or attempting to restrict or restricting the woman’s or her child’s freedom of movement or conduct by force or threat of force, physical or other harm or threat of physical or other harm, or intimidation directed against the woman or her child. This shall include, but not limited to, the following acts committed with the purpose or effect of controlling or restricting the woman’s or her child’s movement or conduct:

1. Threatening to deprive or actually depriving the woman or her child of custody or access to her/his family;

2. Depriving or threatening to deprive the woman or her children of financial support legally due her or her family, or deliberately providing the woman’s children insufficient financial support;

3. Depriving or threatening to deprive the woman or her child of a legal right;

4. Preventing the woman in engaging in any legitimate profession, occupation, business or activity, or controlling the victim’s own money or properties, or solely controlling the conjugal or common money, or properties;

f) Inflicting or threatening to inflict physical harm on oneself for the purpose of controlling her actions or decisions;

g) Causing or attempting to cause the woman or her child to engage in any sexual activity which does not constitute rape, by force or threat of force, physical harm, or through intimidation directed against the woman or her child or her/his immediate family;

h) Engaging in purposeful, knowing, or reckless conduct, personally or through another,  that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to the following acts:

1. Stalking or following the woman or her child in public or private places;

2 Peering in the window or lingering outside the residence of the woman or her child;

3 Entering or remaining in the dwelling or on the property of the woman or her child against her/his will;

4 Destroying the property and personal belongings or inflicting harm to animals or pets of the woman or her child;

5 Engaging in any form of harassment or violence; and

i) Causing mental or emotional anguish, public ridicule or humiliation to the woman or her child, including, but not limited to, repeated verbal and emotional abuse, and denial of financial support or custody of minor children or denial of access to the woman’s child/children.

Section 8. Penalties – In relation to Sec. 7 hereof, the acts complained of are punishable with the provisions set forth in this Section:

a) Acts falling under Section 7(a) constituting attempted, frustrated or consummated parricide or murder or homicide shall be punished in accordance with the provisions of the Revised Penal Code. If these acts resulted in mutilation, it shall be punishable in accordance with the Revised Penal Code; those constituting serious physical injuries shall have the penalty of prision mayor; those constituting less serious physical injuries shall be punished by prision correctional; and those constituting slight physical injuries shall be punished by arresto mayor.

Acts falling under Section 7 (b) shall be punished by imprisonment of two (2) degrees lower than the prescribed penalty for the consummated crime as specified in the preceding paragraph but shall in no case be lower than arresto mayor.

b) Acts falling under Section 7(c) and 7(d) shall be punished by arresto mayor;

c) Acts falling under Section 7(e) shall be punished by prision correccional;

d) Acts falling under Section 7(f) shall be punished by arresto mayor;

e) Acts falling under Section 7(g) shall be punished by prision mayor;

f) Acts falling under Section 7(h) and Section 7(i) shall be punished by prision mayor.

If the acts are committed while the woman or child is pregnant or committed in the presence of her child, the penalty to be applied shall be the maximum period of penalty prescribed in this section.

In addition to imprisonment, the perpetrator shall (a) pay a fine in the amount of not less than One hundred thousand pesos (P100,000.00) but not more than Three hundred thousand pesos (P300, 000.00); and undergo mandatory psychological counseling or psychiatric treatment and shall report compliance to the court.

Barangay Protection Order

pertinent provisions of the Implementing Rules

Section 13. Barangay Protection Orders.– Barangay Protection Orders (BPOs) refer to the protection order issued by the barangay ordering the perpetrator/respondent to desist from committing acts under Section 7 (a) and (b) of these Rules. These are causing

(a) physical harm to the woman or her child; and

(b) threatening to cause the woman or her child physical harm.

The reliefs that may be granted under the BPO are the following:

a) Prohibition of the respondent from threatening to commit or committing, personally or through another, any of the following acts mentioned in Section 7 (a) and (b) of these Rules; and

b) Prohibition of the respondent from harassing, annoying, telephoning, contacting or otherwise communicating with the victim-survivor, directly or indirectly.

Section 14. How to Apply for a Barangay Protection Order.

a) The application for a BPO shall be in writing, signed by the victim-survivor/petitioner, and in a language understood by her/him. It shall be attested before the Punong Barangay who has jurisdiction over the application. The Punong Barangay or Kagawad shall assist the victim-survivor/ petitioner in any application for a BPO. The ex parte determination on the application for a protection order shall have priority over all proceedings.

b) The Punong Barangay or Kagawad must issue the BPO on the same day of application, immediately upon the conclusion of the ex parte proceedings. The BPO shall state the last known address of the respondent, the date and time of issuance, and the protective remedies prayed for by the victim-survivor/petitioner pursuant to Section 13 hereof. If the Punong Barangay is unavailable to act on the application for a BPO, the application shall be acted upon by any available Barangay Kagawad. In such a case, the order must be accompanied by an attestation by the Barangay Kagawad that the Punong Barangay was unavailable at the time of the issuance of the BPO.

A BPO is granted ex parte, without notice and hearing to the respondent. The victim-survivor/petitioner may be accompanied by any non-lawyer advocate in the proceedings before the Punong Barangay. The Punong Barangay or kagawad, law enforcers and other government agencies shall not mediate or conciliate or influence the victim-survivor/petitioner for a protection order to compromise or abandon the relief sought.

c) The BPOs shall be effective for fifteen (15) days. Immediately after the issuance of an ex parte BPO, the Punong Barangay or Barangay Kagawad shall personally serve a copy of the same to the respondent, or direct any barangay official to effect its personal service. The BPO is deemed served upon receipt thereof by the respondent or by any adult who received the BPO at the address of the respondent. In case the respondent or any adult at the residence of the respondent refuses, for whatever cause to receive the BPO, it shall likewise be deemed served by leaving a copy of the BPO at the said address in the presence of at least two (2) witnesses.

The barangay official serving the BPO must issue a certification setting forth the manner, place and date of service, including the reasons why the same remain unserved.

d) The BPO shall be issued free of charge. Within twenty four (24) hours after a BPO is issued, the Punong Barangay, or in her/his absence or inability, any available Barangay Kagawad shall assist the victim-survivor/ petitioner in filing for an application for a TPO or PPO with the nearest court in the place of residence of the victim-survivor. If there is no Family Court or Regional Trial Court, the application may be filed in the Municipal Trial Court, the Municipal Circuit Trial Court or the Metropolitan Trial Court. For indigent petitioner, the barangay shall ensure that transportation and other expenses are provided for in filing for an application for a protection order with the courts.

e) The Punong Barangay or Kagawad, or the Barangay Secretary, shall record all BPOs in a logbook specifically for cases of VAWC. This logbook is confidential and must be kept from the public especially the media. They shall submit a quarterly report of all BPOs issued to the local office of the Department of the Interior and Local Government (DILG). The DILG shall submit a summary report of the BPOs issued to the Secretariat of the Inter- Agency Council on ViolenceAgainst Women and Their Children (IAC-VAWC). The BPO and the Compliance Monitoring Forms are herein appended.

f) All BPOs shall be enforceable within the barangay that issued the BPO. The Punong Barangay shall furnish a copy of all BPOs to the Philippine National Police-Women and Children Protection Desks (PNP-WCPD) who has jurisdiction in the city or municipality and shall be entered in a logbook for that purpose.

g) The issuance of a BPO or the pendency of an application for a BPO shall not preclude the victim-survivor/petitioner from applying for, or the court from granting, a TPO or PPO. However, where a Temporary Protection has already been granted by any court, the barangay official may no longer issue a BPO.

Section 15. Where to Apply for a BPO. – Applications for BPOs shall follow the rules on venue under Section 409 of the Local Government Code of 1991 and its implementing rules and regulations. Hence, it may be filed in the barangay where the victim-survivor/ petitioner is located or resides.

If the parties reside in different municipalities or cities, the Punong Barangay or any kagawad of the barangay where the victim-survivor resides shall assist the victim-survivor/applicant in filing an application for a Protection Order from the court within two (2) hours from the request.

The place of residence or location of the victim-survivor/ petitioner may include the place where the victim-survivor temporarily resides or where she sought refuge/sanctuary to escape from and avoid continuing violence from the respondent.

Section 16. Violation of a Barangay Protection Order.– A complaint for a violation of a BPO issued under the Act must be filed directly with any Municipal Trial Court, Metropolitan Trial Court, or Municipal Circuit Trial Court that has territorial jurisdiction over the barangay that issued the BPO. Violation of a BPO shall be punishable by imprisonment of thirty (30) days without prejudice to any other criminal or civil action that the offended party may file for any of the acts committed.

A complaint for a violation of a BPO shall be initiated by the Punong Barangay or Kagawad who issued the BPO and if he/she is no longer in office or is incapacitated, a complaint for a violation of the BPO may be filed by any barangay official. It shall be the primary responsibility of these barangay officials to initiate complaints for violations of BPOs.

In the event that the Punong Barangay or Kagawad or barangay official referred to in the preceding paragraph refuses to initiate a complaint for a violation of a BPO, the victim-survivor/ applicant shall have the right to file such complaint, without prejudice to the right to file appropriate administrative, civil or criminal action against the barangay official concerned.

A judgment of violation of a BPO may be appealed according to the Rules of Court. During trial and upon judgment, the trial court where the petition is filed may motu proprio issue a protection order as it deems necessary without need of an application.