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REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
Visayas Station
Cebu City

MELBA DUMLAO-CAPON, CA G.R. NO. 256789

Petitioner-Appellant, RTC Br. 33, Calbiga, Samar
Lower Court Case No.
Civil Case No. RTC-2017-097

-versus-

FOR: Declaration of Nullity of

Marriage

DENNIS G. CAPON,
Respondent-Appelle.
x-------------------------------------------------x

APPELLANT’S BRIEF

PETITIONER-APPELLANT, unto this Honorable Court, most politely les

her Brief and alleges as follows:

ASSIGNMENT OF ERRORS
I. THE TRIAL COURT ERRED IN DISMISSING THE CASE AS
PSYCHOLOGICAL INCAPACITY OF MR. CAPON WAS
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.
II. THE TRIAL COURT ERRED IN NOT NULLIFYING THE
MARRIAGE FOR LACK OF MARRIAGE LICENSE.

STATEMENT OF THE CASE

This case is for the Declaration of the Nullity of the Marriage of

Melba Dumlao-Capon and Dennis G. Capon due to the alleged
psychological incapacity of the respondent- appellee to perform his marital
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and parental obligations in the Family Code and for lack of a valid marriage
license.

The case was led on May 25, 2017 with Branch 33 of the Regional
Trial Court in Calbiga, Samar. On September 14, 2019, the trial court
rendered a Decision dismissing the case for the alleged failure of the
petitioner-appellant to establish her case by clear and convincing evidence.
Said decision was received by her counsel on October 18, 2019 copy of
which is hereto attached as ANNEX- A and Series. On November 2, 2019,
petitioner-appellant led a Motion for Reconsideration of the assailed
decision, but the same motion was denied, for alleged lack of merit, by way
of an Order dated February 28, 2020, which was received by petitioner-
appellant’s counsel on March 27, 2020, copy of which is hereto attached as
ANNEX-B and Series.

On April 10, 2020, Atty. Castella Feber led with the trial court a
Notice of Appearance of Collaborating Counsel with Notice of Appeal. On
June 25, 2020, the trial court ordered the transmittal of the case records to
the Honorable Court of Appeals, Cebu City. On November 19, 2020, herein
collaborating counsel for the petitioner- appellant received a copy of an
Order to le Appellant’s Brief within forty- ve (45) days from receipt of the
same. The last day to le Appellant’s Brief is on January 3, 2021.

STATEMENT OF FACTS
Petitioner-Appellant alleges that she met the respondent in Manila
sometime in April 2010 when they were introduced by a common friend,
Marvin who is a batch mate of respondent in the Philippine Coast Guard.
After that meeting, they began exchanging text messages and phone calls. In
November 2011, the respondent- appellee visited her in Manila and after a
week, asked if he can stay with her in her place for which she declined as
she was then staying in a place exclusive for girls.

As an alternative, petitioner-appellant offered the house of her aunt

were they stayed for two weeks, thereafter, respondent returned to his place
of assignment in Zamboanga Del Sur. Respondent- Appellee used to visit her
only twice year, and during those visits, she found him sweet but
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temperamental. On June 25, 2012, upon the request of the respondent-

appellee, she visited the former in Zamboanga Del Sur where they stayed at
a hotel for almost a week and it was then that they had their rst love-
making. A month after she returned to Manila, petitioner-appellant learned
that she was pregnant for almost a week already and it was then that she
called the respondent-appellee to relay the information; however, she was
shocked when the respondent got mad and shouted at her on the phone, even
accusing her of having an affair with another man and denied paternity of
the child she was carrying in her womb. Petitioner-appellant got hurt by
those words, but ended the conversation saying that she was okay and that
she can handle her situation. Thereafter, respondent-appellee stopped
communicating with the petitioner-appellant who also did not bother to call
him again.

Sometime in November 2012, respondent-appellee called the

petitioner-appellant thus telling the latter that he was ready to marry her. He
then started to send monthly support of P2, 000.00. She gave birth to
Charisse Capon on March 26, 2013. After the birth of their daughter, the
parties started to live together as husband and wife and in that live-in
relationship, they started to experience their highs and lows due to the
unreasonable and immature actuations of the respondent-appellee. Despite
those, Melba decided to marry Dennis. She began processing the approval of
his application for marriage with the Philippine Coast Guard, and upon
receipt of the approval by his employer, Dennis started working on the
processing of other requirements for the civil wedding.

To dispense with the requirement of a marriage license and to hasten

the marriage ceremony, Melba and Dennis executed an Af davit of
Cohabitation stating therein that had been living together as husband and
wife for more than ve (5) years when in truth, they did so only for about
one year after the birth of their common child. Using such Af davit, they
were married on September 30, 2014 at Manila City Hall before Rev.
Fernando M. Cruz, Jr.

After the wedding, their marriage remained long distance as Dennis

was still assigned in Zamboanga Del Sur and visiting Melba and their
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daughter in Manila whenever he would have a break from his duty. It was
during those visits when Melba came to know and discovered more about
the real personality of Dennis- that he is quick to anger and temperamental.
He often behaved insensitively and irritably that in one instance, while when
he was on vacation, he threatened his daughter Charisse, then two years old,
to be placed in a bag if she did not follow him and come near him
immediately. He made good his threat and really placed her daughter inside
a bag. Melba rescued her daughter and had an ugly ght with Dennis. On
October 12, 2015, Dennis arrived at Melba’s apartment in Tondo and found
out that the door was locked, he got mad and that he could not get inside and
had a serious ght with Melba who was punched. In Bicol, when they were
on vacation, respondent almost killed the petitioner-appellant when their
daughter accidentally fell during play.

One night also, the respondent asked the petitioner-appellant to stay

awake with him as he was not yet sleepy, however, because the petitioner-
appellant was tired from work, she fell asleep. Suddenly, respondent kicked
and spanked her, causing a hematoma around her eyes, then threatened her
that he will kill her if she is already useless, he will bury her in the backyard.
That prompted the petitioner- appellant to escape from him, however in
March 2016, respondent requested to be with their daughter during her
birthday. Petitioner- appellant granted his request but respondent just
resumed hurting appellant and their daughter.

Petitioner-appellant also found respondent to be an irresponsible

person who failed to meet his personal obligations of a marital and nancial
nature, that he just provides petitioner a measly support of Php2, 000.00 per
month regardless of the increasing needs of their daughter and other
accountabilities. One time, petitioner-appellant got short of budget when
their child got hospitalized in July 2016 and when she contacted respondent
to ask for help, his cellphone was unattended. She was upset when she
discovered later on that respondent was in Davao to apply for a loan but did
not give any amount for their child’s hospitalization and medicine expenses.
She just discovered later on through respondent’s co-worker that he was at
that time enjoying living with another woman.
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Respondent-appellee does things as he pleases, unmindful of the

effects of it unto others, as well as the consequences of his action. On
October 13, 2016, petitioner-appellant informed respondent that his
cellphone received a call from a woman who introduced herself as his
girlfriend. The respondent got infuriated and punched appellant who was
then carrying their daughter who, as well, was hit by his punch.
Nevertheless, he continued delivering punches, after then, he still picked up
a gun and pointed it at her head. He only stopped when a neighbor
interfered. Respondent-appellee also failed to observe his personal and
marital commitments as despite being married, he still went into different
illicit relationships forgetting his commitments to their marriage. At one time
during their vacation, appellant found respondent’s picture with his other
woman and their sex video.

Appellant discovered that appellee was into the use of illegal drugs,
because while they were waiting for their marriage ceremony to take place,
appellant saw him drink a big bottle of Solmux cough syrup and when she
asked him, he just offered an excuse, “pampaalis ng nerbiyos:” and also,
appellee, at one time had a visitor who handed him a pack of white sand-like
substance. Appellant heard from respondent’s mouth a question con rming
that the substance was shabu.

Respondent-appellee on the other hand, in his answer, stated that the

appellant is not a resident of Calbiga, Samar. Their marriage according to
him was contracted by them following all the requisites of a valid marriage
and the appellant freely gave her consent to their marriage. She had every
plan of bringing up a family for which reason they begot a child.
Respondent-appellee denied being temperamental and as a member of the
Philippine Coast Guard, they were trained to handle their emotions properly
in any kind of situation. He admitted that the chance of their meeting was
when the appellee accompanied Marvin’s sister to the Zamboanga Medical
Hospital. He denied having known that appellant stayed at a hotel in
Zamboanga and they stayed together.

According to the appellee, they just had sex at a lodging house where
they stayed only for two hours. After that meeting at Zamboanga City, they
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did not communicate for two months. He denied having told petitioner-
appellant to abort the baby, because that is completely against his personality
and belief. Appellee told her that he cannot marry her yet that time because
of the existing policy at his work that a member can only get married after
they extended three year service upon admission, not because he did not
want a family. With regard to the support that he gives, it is admitted with
quali cation, because the appellant was the one in possession of the ATM
card of the appellee’s account where his salary was being deposited. It was
the appellee who only asked for his allowance from his salary and the
appellant only sends him 500 to 1,000 pesos as allowance every 15 days.
Appellee did his share in providing for their family’s needs and it was
appellant who did not, in any way, help raise their family. The mother and
sister of the appellee also took care of their baby together with the appellant
at Tondo, Manila.

The parties lived as husband and wife even before they married each
other. It was appellee’s lack of sense of responsibility and love for over
spending and association with other men that became a problem. Dennis
denied having hurt their daughter. He grew up in a family that has a very
strong bond and love that it is impossible for him to do the things that the
appellant accused him of doing. There was only one time when he got mad
at the appellant and that was when their daughter suffered injury, because of
her negligence. Respondent-Appellee denied the allegation of the Appellant
that he is irresponsible who failed to meet to his personal, marital nancial
obligations, because the truth he even asked his parents to support his family
when they ran out of budget, because of the mindless spending of the
Appellant.

Appellee brought this matter to the family of the appellant when he

and his family went to Samar sometime in August after receipt of this
complaint, but appellant refused to get back with him and insisted on
separation. It is only plaintiff who chose to make things impossible between
them. Aside from the properties enumerated by appellant, appellee also owns
a transport business that is being managed by the appellant. They also own a
lot in Carigara, Leyte worth Four Hundred Thousand (P400, 000.00) Pesos.
Appellee af rms the validity of their marriage as it has complied with all the
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requisites of a valid marriage and it was in fact the appellant who took care
of the compliance thereof. If she claims otherwise, appellee imputes unclean
hands upon the appellant and alleges that she just wishes to annul the
marriage to validate her illicit relationship with her paramour whom she
wants to give all the money and properties she will be receiving from the
nulli cation of this union. Thus, appellee moved that this case be dismissed
for being baseless.

Preliminary conference on this case was conducted on February 2, 2016,

while the pre-trial was held on February 29, 2016 where the identity of the
parties were admitted, that a child was born to the parties out of wedlock
was admitted. On June 28, 2016, the appellant commenced presentation of
evidence by having herself as the rst witness. Witness af rmed and
con rmed that the certi ed copies of the documents attached to her Judicial
Af davit are faithful reproduction of their original; that nobody coached her
during the interrogation.

In her Judicial Af davit, she stated that Dennis is her husband being married
to her on September 30, 2014 Manila City Hall; that they have a child; that
she rst met appellee in Manila when they were introduced to each other by
their common friend, Marvin, and after that meeting, they began exchanging
text messages and cellphone calls until appellee visited her in Manila and
during such visit, he asked permission from her if he can stay in her place,
which she declined, because her place was exclusive for girls, instead she
offered him to stay in the house of her aunt for two (2) weeks, thereafter
appellee returned to his place of assignment in Zamboanga Del Sur and
would visit her only twice a year; that during those visits, she found the
appellee to be very sweet but temperamental; that respondent- appellee
requested to visit him in Zamboanga Del Sur where they both stayed in a
hotel for almost a week and it was there that they rst engaged in pre-marital
sex; that after a month from her return to Manila, she found out that she was
pregnant, so she immediately called the appellee to inform him of her
condition, but he only got angry and denied fathering the child that she was
carrying, accusing her of having an affair with other men and even ordered
her to have the baby aborted, because he was not yet ready to raise a family;
that because she was hurt, she ended their conversation and from then,
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appellee stopped communicating with her, as she also did; that in November
2012, appellee called her to informed her that he was then ready to marry
her, and she was happy for that, and appellee also started sending her
monthly support of Php2,000.00; that she gave birth to their daughter, gave
birth to Charisse Capon on March 26, 2013 and from then, they started
living together as husband and wife, experiencing many ups and downs as
appellee would easily get angry over petty tings; that after living together for
more than a year, appellee decided to marry her and began processing his
application for marriage with the Philippine Coast Guard and after getting a
favorable approval, he directed her to process the requirements for their civil
wedding.

In order to facilitate everything and to dispense them with the requirements

of a marriage license, they executed an Af davit stating that they were both
of legal age and had been living together as husband and wife for at least
ve (5) years when in truth and in fact, they had just been living together for
about 12 months reckoned after the birth of their daughter, that they signed
that af davit despite knowing the falsities therein as they wanted to legalize
their union as soon as possible to save her from humiliation of entering into
a live-in relationship and at that time, they were also thinking about the
future of their daughter, (witness identi ed her signature and the signature of
the Defendant in that Af davit); that after executing the said Af davit, they
presented themselves to the solemnizing of cer for the solemnization of
their marriage; that she also executed an Af davit of Denial in support of
this petition wherein she further denied that she and the appellee lived
together as husband and wife prior to their marriage, (witness identi ed said
Af davit and her signature therein).

After the wedding ceremony, appellee returned to his area of

assignment in Zamboanga and would visit her and their daughter whenever
he is on long/short vacation or break from work; that he is very
temperamental, often exhibiting irritability and insensitivity that leads him to
hurt her and their daughter and as evidence, witness presented a copy of a
log-book entry from Moriones PCP Station 2, MPD of the October 13, 2015
incident where appellee beat, hurt and in icted physical injury upon her
person and a copy of the Medico Legal Report for that incident; that she also
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found him to be irresponsible who could not meet personal obligations of a

marital and nancial nature, and further he does things only as he pleases,
unmindful of its effects; that appellee despite being married to her went into
illicit relationships and was also taking illegal drugs; that after experiencing
this kind of treatment from the appellee, she made a deep re ection on their
situation and realized that she can no longer continue such kind of marital
situation, loving a man who is continuously hurting her and their daughter,
and afraid that he can later on kill either her or their daughter, thus she
decided to le this case; that in ling this case, she engaged the services of a
lawyer who referred her to Clinical Psychologist H. Nedy L. Tayag for
psychological evaluation and examination, who in her Report found that the
appellee is suffering from a personality disorder known as “Antisocial
Personality Disorder” and concluded that the ideas of reconciliation as well
as the hope of a normal and functional marital union are deemed to be
already impossible, thus she strongly recommended to the Honorable Court
that her marriage with the appellee be declared null and void on the basis of
the personality disorder that the latter suffers from; that she prays of the trial
court to grant her Petition so she can move on with her life as she believes
reconciliation is no longer possible between them, as they have tried this
before several times but failed; that as a nal recourse, she wants that the
trial court declare their marriage as VOID AB INITIO for lack of marriage
license and/or reason of appellee’s psychological incapacity, and further that
a decree be issued ordering the respondent- appellee to grant support to their
minor child, Charisse Capon, and during the pendency of the petition,
visitation and/or custody rights over their daughter be denied to him, since
he is hooked on illegal drugs and had a history of hurting them; that during
their marriage, they acquired properties consisting of two (2) parcels of land
situated at San Felipe, Naga City and an interest in parcel of land designed
as Cad. Lot o. 1028 in Sta. Rita, Samar and these properties are proven by a
Deed of Absolute Sale and a Real Estate Mortgage; that aside from that real
properties, they have bank money deposited at a DBP Branch Mandaluyong
City and at Security Bank, Naga City Branch, but she has no proof to this as
it is the appellee who is maintaining them.

On cross-examination, she stated that they both decided to execute the

Af davit of Cohabitation, because when they processed the documents for
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their wedding, being a soldier he wanted that when he came they have to get
married and he does not want to attend the seminar required, so their ninang
told her that they can be married but they will have to execute an Af davit
that they had been living together for more than ve (5) years, but in truth,
they had just been living together for about one (1) year; that she wanted that
this Af davit that they had executed be disregarded; (witness was made to
point to her signature and that of her husband by counsel, which she did);
that aside from this document, they were required to submit Certi cate of No
Marriage and Birth Certi cate, she does not remember the others; that
during that time, she does not know yet the consequence of executing a
sworn af davit that does not disclose the truth; that they also submitted
barangay clearance, police clearance and MTC Clearance; that when they
were married, they already had a baby because she delivered the baby; that
when she delivered their baby, her husband was at work and she was
residing in Brgy. San Simon, Tondo, Manila and her husband would visit
them only twice a year; that her husband would not allow them to visit him
in Zamboanga and his other places of assignment because it was very risky
and besides she was working and there was no one to take care of their
daughter; that she did not also insist in bringing their daughter to visit him in
his place of assignment because every time he insists, her husband would get
mad and she was afraid; that as far as she knew, her husband was having a
live-in partner in the place where he was assigned, which surprised him at
rst but later she had to accept it; that at rst her husband would give them
monthly support of Php 2,000.00 but it only lasted for six months, later he
would give the same amount every three or four months and that was when
their child was already two years old, that’s why they usually have a ght
regarding this; that she was a regular employee and HR Manager of a
manpower and placement company and at that time she was receiving Php
15,000.00 every month plus incentives and she was also engaged in an
online business selling bags, shoes, clothes and jewelries. With that income,
she could singlehandedly raise their daughter; that sometimes, she even
sends money to her husband when he asked from her, because according to
him he has so many loans; that when she once visited his of ce to request
for salary deduction for their support, she was just advised to settle the
matter between themselves as husband and wife, so she did not insist
because she was shown that her husband was only receiving Php 5,000.00 a
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month from his salary; that aside from that, her husband also used to hurt
her, especially when she discovered that he has another woman, by mauling
her and even pointed a gun at her; that he usually hurt her when he goes
home to them twice or thrice a year especially when she fails to give him
money; that aside from physical abuse, she also suffered emotional and
verbal abuses like when they would visit his hometown, most of the time, he
humiliates her in front of his family by calling her dull and stupid, stating
that she was not the one whom he wanted to marry, he was just forced to do
so; that she did not force him to marry her, actually when she got pregnant,
they did not have communication for three (3) months when suddenly he
appeared and told her that he is willing to take his responsibility; that she
suspected that he had a mistress, because when she was still in Manila, her
husband was there to visit her in the apartment that they were renting and his
phone received a call and when she answered, the one on the other lie asked,
“daddy nakauwi ka na ba” and when she asked who was his father, the other
end told her that she was not looking for her father but her boyfriend, Dennis
Capon; that when she confronted Dennis about it, he just said, “Do not
intervene because you are just my wife, she is better for she is younger”; that
she was hurt so they started to ght and her husband punched her, kicked her
and poked a gun at her; she fought back, but he was stronger and besides she
was then carrying their daughter; that her parents-in-law knew about Dennis’
behavior because he would hurt her even in the presence of her parents-in-
law.

The worst thing happened when Dennis brought home a concubine

named Marilyn Manibog to their rented house in Naga City and because of
that, she and her daughter had to move swiftly to Manila as her husband
showed no more love and respect for her.

ARGUMENTS AND JURISPRUDENCE

I. THAT THE MARRIAGE BETWEEN THE PARTIES IS VOID AB
INITIO ON THE GROUND OF PSYCHOLOGICAL INCAPACITY AS
PROVIDED UNDER ARTICLE 36 OF THE FAMILY CODE OF THE
PHILIPPINES
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We contend that the trial court erred in its decision because Mr.
Capon’s acts constitute psychological incapacity. One of the grounds to void
a marriage is psychological incapacity. Article 36 of the Family Code states
that:

Article 36. A marriage contracted by any party who, at the time of the
celebrating, was psychologically incapacitated to comply with the
essential marital obligations of marriage, shall likewise be void even
if such incapacity becomes manifest only after its solemnization.

Article 15 of the 1987 Constitution provides that marriage, as an inviolable

social institution, is the foundation of the family and shall be protected by
the State. Further, the Constitution provides that the State recognizes the
Filipino family as the foundation of the nation. Accordingly, it shall
strengthen its solidarity and actively promote its total development. Given
by the State’s interest in promoting the marriage, there is also a
corresponding interest of the State to defend against marriages ill-equipped
to promote family. Void marriages under Article 36 do not further the
initiatives of the State concerning marriage and family, as they promote
wedlock among persons who, for reasons independent of their will, are not
capacitated to understand or comply with the essential obligations of
marriage.1

The obligations of marriage is provided under Article 68 of the Family Code,

to wit:
Article 68. The husband and wife are obliged to live together, observe
mutual love, respect and delity, and render mutual help and support.

A violation of this provision can declare the marriage as null and void on the
ground of psychological incapacity under Article 36 of the Family code.

In Santos vs Court of Appeals2, psychological incapacity was: de ned

as a mental incapacity to comply with the essential marital obligations. Thus,
in Molina3 guidelines, parties to a nullity case are required to present
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evidence on the root cause of psychological incapacity, which must be

medically or clinically identi ed and proven by experts.

However, the Court in Andal vs Andal4 states that psychological

incapacity is not intended to be synonymous or equal to a mental incapacity,
or to personality disorders. The Supreme Court in this case emphasized that
what must be proven is the “durable or enduring aspects of a person’s
personality called “personality structure” which manifests itself through
clear acts that is dysfunctional and it undermines the family. The spouse’s
personality structure must make it impossible for him or her to understand
and, more important, to comply with his or her essential marital obligations.
In the same case the Supreme Court has also stated that while psychological
incapacity must be incurable, the incurability must be in the legal sense, and
not in the medical sense. Incurability in the legal sense means that the
“incapacity must be so enduring and persistent with respect to the speci c
partner, and contemplates a situation where the couple’s respective
personality structures are so incompatible and antagonistic that the only
result of the union would be the inevitable and irreparable breakdown of the
marriage.”5

In this case, the petitioner has presented several documents and

witnesses which con rms that their respective personality structures are so
incompatible and antagonistic that the only result of the union would be the
inevitable and irreparable breakdown of the marriage. She has adduced
evidence that her husband used to hurt her, especially when she discovered
that he has another woman, by mauling her and even pointed a gun at her;
that he usually hurt her when he goes home to them twice or thrice a year
especially when she fails to give him money; that aside from physical abuse,
she also suffered emotional and verbal abuses like when they would visit his
hometown, most of the time, he humiliates her in front of his family by
calling her dull and stupid, stating that she was not the one whom he wanted
to marry, he was just forced to do so.

1. Leonilo Antonio vs. Marie Ivonne Reyes G.R. No. 155800; March 10, 2006
2. Leouel Santos vs. Honorobale Court of Appeals G.R. No. 112019; January 04, 1995
3. Republic of the Philippines vs. Court of Appeals and Ronidel Molina G.R. No. 108763; February 13,
1997
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Further, the Supreme Court also ruled that the essential marital
obligations are limited to those between the spouses. However, once the
spouses have children, their obligations to their children are also a part of
their spousal obligations to each other. Furthermore, the Supreme Court
clari ed that not all kinds of failure to meet the obligations to their children
will nullify the marriage, but only those that are shown to be of “grievous
nature that it re ects on the capacity of one of the spouses for marriage”.6

Article 70 of the Family Code provides that the spouses are jointly
responsible for the support of the family. As such, once the parties decide
and do have children, their obligations to their children become part of their
obligations to each other as spouses. The Article states that, to wit:

Article 70. The spouses are jointly responsible for the support of the
family. The expenses for such support and other conjugal obligations
shall be paid from the community property and, in the absence
thereof, from the income or fruits of their separate properties. In case
of insuf ciency or absence of said income or fruits, such obligations
shall be satis ed from the separate properties.

In this case, petitioner-appellant and respondent-appellee begot a

child, and said child has also been subjected to the cruelty of the respondent-
appellee. There were instances of harshness towards the child and there were
also instances that the child received blows and hits from respondent-
appellee. The respondent-appellee had also threatened her daughter, at that
time the age of the child was 2 years old, to be placed in a bag if she did not
follow him and come near him immediately. Respondent-appellee really
placed her daughter inside a bag when her daughter did not come near him.
When petitioner- appellant rescued her daughter, and the respondent-
appellee resulted to a ght.

In another circumstance, petitioner-appellant confronted respondent-appellee

about the call from the latter’s mistress, the respondent-appellant became

4. Andal vs. Andal G.R. No. 196359 March 05, 2021

5. Id.
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furious and punch appellant who was carrying their daughter and at the same
time was hit by the punch made by the respondent-appellant. After blowing
punches towards petitioner-appellant, he still picked up a gun and pointed it
at her head. He only stopped when a neighbor interfered.

In addition, respondent-appellee has also failed to meet his personal

obligations of a marital and nancial nature, he provides petitioner-appellant
a support of Php2, 000.00 per month regardless of the increasing needs of
their daughter and other accountabilities. And there were instances that the
respondent-appellee would fail to give these acts committed by respondent-
appellee are clearly of grievous nature that it re ects on the capacity of one
of the respondent- appellee that he is incapable of being a good father of a
family and does not put any importance in the safety of well-being of his
child. He cannot exercise any essential obligations to support, care, and
defend his family.

In the case of Andal,7 the Supreme Court after reviewing the Code
Committee deliberations, has determined that psychological incapacity
should mean "no less than a mental (not physical) incapacity that causes a
party to be truly incognitive of the basic marital covenants that
concomitantly must be assumed and discharged by the parties to the
marriage." It added that "psychological incapacity" must refer to "the most
serious cases of personality disorders clearly demonstrative of an utter
insensitivity or inability to give meaning and signi cance to the marriage."
In the case at hand respondent-appellee underwent psychological evaluation
and examination, the Clinical Psychologist found that the appellee is
suffering from a personality disorder known as “Antisocial Personality
Disorder” and concluded that the ideas of reconciliation as well as the hope
of a normal and functional marital union are deemed to be already
impossible, thus she strongly recommend that the marriage of the petitioner-
appellant and respondent-appellee be declared null and void on the basis of
the personality disorder that the latter suffers from.

6. Id
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Petitioner has also found respondent to having relations with other

women such as when the former discovered that the latter used the money
for the hospitalization of their child on living with another woman. In
another instance time during their vacation, appellant found respondent’s
picture with his other woman and their sex video. Also petitioner-appellant
had discovered that respondent- appellee was using illegal drugs, because
while they were waiting for their marriage ceremony to take place, appellant
saw him drink a big bottle of Solmux cough syrup to which he offered as an
excuse, “pampaalis ng nerbioys.” In another instance, they once had a
visitor who handed him a pack of white sand-like substance, which was later
on con rmed to be shabus. The following acts shows that respondent-
appellee also failed to observe his personal and marital commitments as
despite being married, he still went into different illicit relationships and
vices forgetting his commitments to their marriage. As an explicit
requirement of the law, the psychological incapacity must be shown to have
been existing at the time of the celebration of the marriage, and is caused by
a durable aspect of one's personality structure, one that was formed before
the parties’ married.8

In the case at hand, the respondent-appellee had already been showing

symptoms of his psychological incapacity prior to their marriage such as
when they were still at the courting stage and respondent-appellee would
visit petitioner-appellant only twice a year, but in those meetings the latter
has found the former to be sweet but temperamental. Another instance was
when petitioner-appellant called the respondent-appellee to inform him that
she was pregnant, the latter reacted by getting mad and shouted at her on the
phone, even accusing her of having an affair with another man and denied
paternity of the child she was carrying in her womb.

To conclude, the failure of Mr. Capon to ful ll his obligations as the

head of the family and giving priority to his vices instead of giving support
to his family clearly demonstrates psychological incapacity.

7. Id
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II. THAT THE MARRIAGE BETWEEN THE PETITIONER-

APPELLANT AND RESPONDENT-APPELLEE IS VOID AB
INITIO FOR FAILING TO SECURE A VALID MARRIAGE
LICENSE.

The Family Code provides that it is a formal requisite that for there to
be a valid marriage the couple must acquire a valid marriage license. Failure
to acquire and furnish the same shall render the marriage void ab initio.
Article 3 and 4 of the Family Code provides that:

Article 3. The formal requisites of marriage are:

(1) Authority of the solemnizing of cer;
(2) A valid marriage license except in the cases provided for in
Chapter 2 of this Title; and
(3) A marriage ceremony which takes place with the appearance of
the contracting parties before the solemnizing of cer and their
personal declaration that they take each other as husband and
wife in the presence of not less than two witnesses of legal age.
(53a, 55a)

Article 4. The absence of any of the essential or formal requisites

shall render the marriage void ab initio, except as stated in Article 35
(2).
A defect in any of the essential requisites shall render the marriage
voidable as provided in Article 45.
An irregularity in the formal requisites shall not affect the validity of
the marriage but the party or parties responsible for the irregularity
shall be civilly, criminally and administratively liable.

Further, Article 9 of the same Code states that no marriage shall be

solemnized without a license rst being issued by the local civil registrar of
the municipality where either contracting party habitually resides. If a
marriage was solemnized without the said license is void. Article 9 of the
Family Code states that:
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Article 9. A marriage license shall be issued by the local civil

registrar of the city or municipality where either contracting party
habitually resides, except in marriages where no license is required in
accordance with Chapter 2 of this Title. (58a)

In this case, petitioner-appellant and respondent-appellee did not

acquire a valid marriage license prior to their wedding rather they falsely
executed an Af davit of Cohabitation stating that they have been living
together as husband and wife for more than ve (5) years when in truth, they
did so only for about one year after the birth of their common child. Using
such Af davit, they were married on September 30, 2014 at Manila City
Hall before Rev. Fernando M. Cruz, Jr.

It is clear from the facts of the case that the marriage was solemnized
without the formal requisite of a valid marriage license. They only executed
an Af davit of Cohabitation that they have been living together as husband
and wife for more than 5 years to be
exempted from executing a valid marriage license. Under Article 34 of the
Family Code, it provides that the husband and wife need not present a valid
marriage license if they have lived together as husband and wife for at least
ve years. The said provision states that:

Article 34. No license shall be necessary for the marriage of a man

and a woman who have lived together as husband and wife for at least
ve years and without any legal impediment to marry each other. The
contracting parties shall state the foregoing facts in an af davit before
any person authorized by law to administer oaths. The solemnizing
of cer shall also state under oath that he ascertained the
quali cations of the contracting parties are found no legal
impediment to the marriage. (76a)

In the case of Dayot9, the Supreme Court has stated that the exception of a
marriage license under Article 34 applies only to those who have lived
together as husband and wife for at least ve years and desire to marry each
other. No other reading of the law can be had, since the language of Article
34 is precise. The minimum requisite of ve years of cohabitation is an
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indispensability carved in the language of the law. For a marriage celebrated

under Article 34 to be valid, this material fact cannot be dispensed with. It is
embodied in the law not as a directory requirement, but as one that partakes
of a mandatory character. Further, the Court in the above-stated case states
that “if the essential matter in the sworn af davit is a lie, then it is but a mere
scrap of paper, without force and effect. Hence, it is as if there was no
af davit at all.”

In the case at bar, there is suf cient evidence to prove that no valid marriage
license was procured by the spouses and also they do not qualify for the
exception laid down in Article 34 of the Family Code, as it was proven that
they have not been cohabiting for at least 5 years prior to their marriage.
From the facts of the cases, the marriage contracted between the parties
should be held void ab ignition on the ground that they fail to satisfy the
formal requisites laid down by law.

WHEREFORE, PREMISES CONSIDERED, Petitioner-Appelant most

respectfully prays that the foregoing Appeal be GIVEN DUE COURSE and
that a Judgment be RENDERED as follows: To declare the marriage
between Melba Dumlao-Capon and Dennis Capon NULL and VOID.

Cebu City, 20 December 2020.

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VERIFICATION

I, MELBA DUMLAO-CAPON, of legal age, Filipino, married and a

resident of 193 Magallanes St. Tacloban City, Leyte, after being sworn in
accordance with the law, hereby depose and say:

1. That I am the petitioner-appellant in the above entitled case;

2. That I have caused the preparation of the foregoing complaint;
3. That I have read and understood the allegations therein, and
they are true and correct according to my personal knowledge
and belief and are based on authentic words;
4. That this pleading is not intended to harass, cause unnecessary
delay, or needlessly increase the cost of litigation and the factual
allegations therein have evidentiary support or if so especially
identi ed, will likewise have evidentiary support after a reasonable
opportunity for discovery; and
5. That I hereby certi ed that I have not commenced any other action or
proceeding involving the same issues in the Supreme Court, the Court
of Appeals, or any other tribunal or agency; to the best of my
knowledge, there is no other action or proceeding involving the same
issues which is pending before the Supreme Court, Court of Appeals,
or any other court, tribunal or agency; if there is any action or
proceeding involving the same issues which is pending before the
Supreme Court, Court of Appeals, or any other court, tribunal or
agency, I will state the status thereof; and that, if I should learn
thereafter that a similar action or proceeding has been led or is
pending before these courts or tribunal or agency, I undertake to report
that fact to the Court within ve (5) days therefrom to this Honorable
Court.

IN WITNESS WHEREOF, I have hereunto set my hand this 10th day of

December 2020 in Tacloban City, Leyte, Philippines.

MELBA DUMLAO-CAPON
Af ant
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SUBSCRIBED AND SWORN to before me this 10th day of

December 2021 in Tacloban City, Leyte, Philippines. Af ant exhibited to me
his DRIVERS LICENSE H02-16-008425 issued in Tacloban City as his
competent evidence of identity.

I HEREBY CERTIFY that I personally examined the af ant and I

am satis ed that he voluntarily executed and understood his declaration on
the place and date above written.

LAWRENCE ESIO
Counsel for Plaintiff
193 Esperas Avenue, Borongan City City
Roll of Attorneys No.23901- 9/29/89
IBP Lifetime No. 068742 - 3/20/71 – Leyte Chapter
PTR. No. 7109 - 1/7/71 – Tacloban City
MCLE Compliance No. III - 7891029 - 09/29/88

OFFICE OF THE SOLICITOR GENERAL

134 Amorsolo St., Legazpi Village, Makati City
Mail Registry Receipt No.: 12345 Tacloban Central Post Of ce

DENNIS G. CAPON
Respondent-Appellee Brgy. Bulao Calbiga Samar
Mail Registry Receipt No.: 89542
Dated: December 11, 2020
Dated: December 11, 2020

EXPLANATION OF THE MODE OF SERVICE

Pursuant to Section II, Rule 13 of the Rules of Court, the foregoing Brief is
sent by registered mail due to a lack of messenger personnel and time
constraint in the lling thereof.
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CASE NO. 2

CASE FACTS:
Spouses Mario and Elma Buscayno borrowed three million pesos
from Alicia Bonifacio, The debt was secured by a real estate mortgage on
Lot No. 1234 located at Brgy. Victory, Babatngon, Leyte and owned by
Elma’s mother, Rebecca who gave her consent to be the accommodating
mortgagor. Additionally, the spouses Buscayno also issued eleven (11) post-
dated checks to Alicia, with the total value of four million pesos as security
for the payment of the principal amount and the interests thereon.

The spouses Buscayno failed to pay the loan and all the checks they
issues had bounced. Despite notice of dishonor, they still failed to pay.
Consequently, Alicia sued the spouses for the bounced checks. Finding
probable cause, the investigating prosecutor led 11 Information for
violation of Batas Pambansa Bilang 22 against the spouses with the
municipal trial court.

Five months after the arraignment in the BP 22 cases and after

sending an updated statement of account and demand to pay, Alicia sued the
spouses Buscayno and Rebecca for foreclosure of mortgage.

REQUIRED:
You are the counsel for the spouses Buscayno and Rebecca. Write a
Motion to Dismiss the case for Foreclosure of Mortgage, complete with
the caption, case facts, grounds, arguments and prayer and the required
signatures.
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Republic of the Philippines

SUPREME COURT OF THE PHILIPPINES
8th Judicial Region
REGIONAL TRIAL COURT
BRANCH 46
Bulwagan ng Katarungan
Tacloban City

ALICIA BONIFACIO, CIVIL CASE NO. R-BOR-92988-SC

Plaintiff,

-versus-
FOR: Foreclosure of
Real Estate Mortgage

SPS. MARIO AND ELMA BUSCANO

AND REBECCA SANTOS,
Defendant.
X -------------------------------------------------X

MOTION TO DISMISS

Defendant, by his undersigned attorney, respectfully moves that the

complaint be dismissed on the following ground(s):
a) pendency of action between the same parties for the same cause of
action.

ARGUMENTS
I. THE DEED OF REAL ESTATE MORTGAGE IS NULL AND VOID
A. FIRST, IN THE CASE AT BAR, THERE WAS NO SHOWING
THAT THE DEED OF REAL ESTATE MORTGAGE CONTAINED
A PERIOD OR TERM UPON WHICH THE PERFORMANCE OF
THE OBLIGATION SHALL BE DUE AND DEMANDABLE.
THUS, AS STATED ABOVE IN ARTICLE 1197, THEIR COURT
SHALL FIX A PERIOD WHEN THE PARTIES FAIL TO
STIPULATE SUCH IN THE OBLIGATION.
 24

A.A. Article 2087 of the Civil Code of the Philippines provides that
it is also of the essence of these contracts that when the
principal obligation becomes due, the things in which the
pledge or mortgage consists may be alienated for the payment
to the creditor.

A.B. Article 1197 of the Civil Code of the Philippines states that if
the obligation does not x a period, but from its nature and the
circumstances it can be inferred that a period was intended, the
courts may x the duration thereof. The courts shall also x
the duration of the period when it depends upon the will of the
debtor.

B. SECOND, IN THE CASE AT HAND FAILED TO SATISFY THE

SECOND REQUISITE STATED IN ARTICLE 2085 WHICH IS
THAT THE MORTGAGOR BE THE ABSOLUTE OWNER OF THE
THING MORTGAGED. AS CAN BE GLEAMED IN THE FACTS
THAT IT IS REBECCA WHO IS THE OWNER OF THE
PROPERTY MORTGAGED AND NOT THE MORTGAGOR.

B.A. Article 2085 of the Civil Code of the Philippines provides that
a mortgage contract, to be valid, must have the following
requisites:
(a) that it be constituted to secure the ful lments of a
principal obligation;
(b) that the mortgagor be the absolute owner of the thing
mortgaged; and
(c) that the persons constituting the mortgage have free
disposal of their property, and in the absence of free
disposal, that they be legally authorized for the
purpose.

II. IF THE FORECLOSURE OF THE PROEPRTY WILL BE

ALLOWED, IT WOULD RESULT TO DOUBLE RECOVERY OF
D A M A G E S W H I C H W O U L D R E S U LT I N U N J U S T
ENRICHMENT
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A. In the case at hand if the extrajudicial foreclosure will be allowed and if

the appellants will be made to pay the amount of the checks subject to
the criminal suit under B.P Blg. 22, there could a arise a situation of
double recovery of damages, which would result in unjust enrichment,
which is prohibited by law.
B. Article 22 of the Civil Code of the Philippines states every person who,
through an act of performance by another, or any other means, acquires
or comes into possession of something at the expense of the latter
without just or legal ground, shall return the same to him.

C. In the case of Joseph v. Bautista, G.R. No. L-41423, [February 23,

1989], 252 PHIL 560-566, the Supreme Court ruled therein: However,
a recovery by the petitioner under one remedy necessarily bars recovery
under the other. This, in essence, is the rationale for the proscription in
our law against double recovery for the same act or omission which,
obviously, stems from the fundamental rule against unjust enrichment.

D. In the case of Shinryo (Philippines) Company, Inc. v. RRN, Inc., G.R.

No. 172525, [October 20, 2010], 648 PHIL 342-353, the Supreme
Court ruled therein: In order that accion in rem verso may prosper, the
essential elements must be present: (1) that the defendant has been
enriched,(2) that the plaintiff has suffered a loss, (3) that the enrichment
of the defendant is without just or legal ground, and (4) that the plaintiff
has no other action based on contract, quasi-contract, crime or quasi-
delict.

E. In the case of Mitsubishi Motors Phil. Salaried Employees Union v.

Mitsubishi Motors Phil. Corp., G.R. No. 175773, [June 17, 2013], 711
PHIL 286-304 it has stated that: To constitute unjust enrichment, it
must be shown that a party was unjustly enriched in the sense that the
term unjustly could mean illegally or unlawfully. A claim for unjust
enrichment fails when the person who will bene t has a valid claim to
such bene t.
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WHEREFORE, defendants respectfully pray that the herein

complaint be ordered dismissed on the ground of lack of jurisdiction over
the persons of the defendants and/or for failure of the plaintiff to state a
cause of action.

Other Relief, just and equitable are also prayed for.

Tacloban City, February 26, 2023.

LAWRENCE ESIO
Counsel for Pettioner
193 Esperas Avenue, Borongan City City
Roll of Attorneys No.23901- 9/29/89
IBP Lifetime No. 068742 - 3/20/71 – Leyte Chapter
PTR. No. 7109 - 1/7/71 – Tacloban City
MCLE Compliance No. III - 7891029 - 09/29/88
 27

CASE NO. 3

CASE FACTS:
Rev. Father Mario Crespo was a Roman Catholic priest assigned at the
parish of Capoocan, Leyte. After celebrating mass on January 7, 2023, at
about 11:00 o’clock in the morning, he drove his Ford Raptor pick-up truck
on his way to Robinson’s Mall in Ormoc City to meet with his mother,
Maxima. While negotiating the winding and uphill Pinamopoan-Lemon
stretch of the Maharlika Highway, Father Mario saw a 10-wheeler dump
truck running downhill from the opposite lane, approximately thirty meters
from his spot. Along the truck’s path was a 15-meter long and 5-meter wide
patch of an ongoing road re-blocking project around which a yellow and
black tape was installed to forewarn motorists. In his desire to avoid the
construction spot, the truck driver maneuvered his vehicle slightly towards
the center of the road and in the process, the truck hit the front left fender of
Father Mario’s vehicle. The violent impact made by the collision threw the
Ford Raptor down into a ravine about 20 meters deep thereby rendering it a
total wreck. Ronald Avila, a J & T Logistics driver who was then driving a
close van immediately following the 10-wheeler truck, saw the incident. He
reported the unfortunate event to the Capoocan Police Station which sent an
investigator and coordinated with the municipal emergency and disaster
team to conduct a rescue and retrieval operation and an inquiry into the
matter. The lifeless body of the priest with a worn seatbelt was later found
still stuck to the driver’s seat. The 10-wheeler truck and its driver were no
longer at the scene when the police arrived.

Maxima learned of her son’s fate and coordinated with the police to
le a case against the driver and the owner of the 10-wheeler truck found to
be registered to Ben Tukmo and driven by Reynaldo Oblak. The LTO data
base showed that the truck was duly registered and the driver had a license at
the time of the incident. Maxima sued to recover from the driver and the
truck owner, PHP 250,000 in funeral and burial expenses, PHP 2,000,000 as
cost of the wrecked Ford Raptor, PHP 6,000,000 for the loss of the priest’s
earning capacity- he was 55 years old when he died and received PHP
10,000 in monthly allowance from the archdiocese; and moral damages of
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PHP 1,000,000 to be paid jointly and severally by the defendants. The

plaintiff testi ed along with the physician who examined the dead body of
the priest, the police investigator and a member of the emergency and rescue
team, Ronald Avila, as an eye witness, the and the nance of cer of the
archdiocese who testi ed on the grant of monthly allowances to the deceased
priest.

Meanwhile, only Ben Tukmo led an Answer and attended the

hearings. In his defense, he testi ed that Reynaldo Oblak was not his
employee but was only contracted to drive his truck for purposes of bringing
it to Tacloban City for its scheduled maintenance, that he was not the
proximate cause of the incident, that he exercised and observed extra
ordinary diligence , that he truck driver had a valid license at the alleged
time of incident and that he incurred expenses for this case and identi ed
documents relevant to this case. After parties have rested their respective
cases, the court deemed this case submitted for decision.

REQUIRED:
Write a decision in favor of the defendants, observing the rules of
procedure, applying the law and the mechanics of acceptable legal
reasoning and writing.
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Republic of the Philippines

SUPREME COURT OF THE PHILIPPINES
8th Judicial Region
REGIONAL TRIAL COURT
BRANCH 35
Ormoc City

MAXIMA CRESPO, CIVIL CASE NO.

Complainant, RTC-2023-098

-versus-
FOR: Damages

BEN TUKMO,
Defendant.
x -------------------------------------------------x

DECISION
Before this Court is an information led against the defendants BEN
TUKMO for recovery of damages based on a quasi delict, which alleges the
following factual basis:

Rev. Father Mario Crespo was a Roman Catholic priest assigned at the
parish of Capoocan, Leyte. After celebrating mass on January 7, 2023, at
about 11:00 o’clock in the morning, he drove his Ford Raptor pick-up truck
on his way to Robinson’s Mall in Ormoc City to meet with his mother,
Maxima. While negotiating the winding and uphill Pinamopoan-Lemon
stretch of the Maharlika Highway, Father Mario saw a 10-wheeler dump
truck running downhill from the opposite lane, approximately thirty meters
from his spot. Along the truck’s path was a 15-meter long and 5-meter wide
patch of an ongoing road re- blocking project around which a yellow and
black tape was installed to forewarn motorists.

In his desire to avoid the construction spot, the truck driver

maneuvered his vehicle slightly towards the center of the road and
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in the process, the truck hit the front left fender of Father Mario’s vehicle.
The violent impact made by the collision threw the Ford Raptor down into a
ravine about 20 meters deep thereby rendering it a total wreck. Ronald Avila,
a J & T Logistics driver who was then driving a close van immediately
following the 10-wheeler truck, saw the incident. He reported the
unfortunate event to the Capoocan Police Station which sent an investigator
and coordinated with the municipal emergency and disaster team to conduct
a rescue and retrieval operation and an inquiry into the matter.

The lifeless body of the priest with a worn seatbelt was later found
still stuck to the driver’s seat. The 10-wheeler truck and its driver were no
longer at the scene when the police arrived. Maxima learned of her son’s fate
and coordinated with the police to le a case against the driver and the
owner of the 10wheeler truck found to be registered to Ben Tukmo and
driven by Reynaldo Oblak. The LTO data base showed that the truck was
duly registered and the driver had a license at the time of the incident.

Now, Maxima sued to recover from the driver and the truck owner, PHP
250,000 in funeral and burial expenses, PHP 2,000,000 as cost of the
wrecked Ford Raptor, PHP 6,000,000 for the loss of the priest’s earning
capacity- he was 55 years old when he died and received PHP 10,000 in
monthly allowance from the archdiocese; and moral damages of PHP
1,000,000 to be paid jointly and severally by the defendants.

PLANITIFF’S ARGUMENTS

The plaintiff testi ed along with the physician who examined the dead
body of the priest, the police investigator and a member of the emergency
and rescue team, Ronald Avila, as an eye witness, the and the nance of cer
of the archdiocese who testi ed on the grant of monthly allowances to the
deceased priest.

DEFENDANT’S ARGUMENTS

Only Ben Tukmo led an Answer and attended the hearings. In his
defense, he testi ed that Reynaldo Oblak was not his employee but was only
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contracted to drive his truck for purposes of bringing it to Tacloban City for
its scheduled maintenance, that he was not the proximate cause of the
incident, that he exercised and observed all the diligence of a good father of
a family and extra ordinary diligence to prevent damage, that he truck driver
had a valid license at the alleged time of incident and that he incurred
expenses for this case and identi ed documents relevant to this case.

After parties have rested their respective cases, the court deemed this case
submitted for decision.

RULING OF THE COURT

I. LIABILITY OF AN EMPLOYER

After a careful evaluation of the arguments and evidence presented by

both the plaintiff and the defendant, the Court nds Petitioner was unable to
prove imputable negligence on the part of defendant. Thus, he should not be
liable for the damages asked by the plaintiff. Under the Civil Code of the
Philippines, Article 2180, in relation to Article 2176, which read:

Article 2176. Whoever by act or omission causes damage to another,

there being fault or negligence, is obliged to pay for the damage done.
Such fault or negligence, if there is no pre-existing contractual
relation between the parties, is called a quasi-delict and is governed
by the provisions of this Chapter.

Article 2180. The obligation imposed by Article 2176 is demandable

not only for one's own acts or omissions, but also for those persons
for whom one is responsible.

xxx
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even
though the former are not engaged in any business or industry.
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The responsibility treated of in this article shall cease when the persons
herein mentioned prove that they observed all the diligence of a good father
of a family to prevent damage. Article 2180 of the Civil Code — imputing
fault or negligence on the part of the employer for the fault or negligence of
its employee — does not apply to defendant since the fault or negligence of
its employee driver, Reynaldo Oblak, which would have made the latter
liable for quasi-delict under Article 2176 of the Civil Code, has never been
established by plaintiff. In the case at hand, the totality of the evidence
presented during trial shows that the proximate cause of the collision can be
attributable to the negligence of the deceased, Rev. Father Mario Crespo.
Proximate cause is de ned as that cause, which, in natural and continuous
sequence, unbroken by any ef cient intervening cause, produces the injury,
and without which the result would not have occurred. And more
comprehensively, the proximate legal cause is that acting rst and producing
the injury, either immediately or by setting other events in motion, all
constituting a natural and continuous chain of events, each having a close
causal connection with its immediate predecessor, the nal event in the chain
immediately effecting the injury as a natural and probable result of the cause
which rst acted, under such circumstances that the person responsible for
the rst event should, as an ordinary prudent and intelligent person, have
reasonable ground to expect at the moment of his act or default that an injury
to some person might probably result therefrom.10

The liability of the employer under Art. 2180 of the Civil Code is
direct or immediate. It is not conditioned on a prior recourse against the
negligent employee, or a prior showing of insolvency of such employee. It is
also joint and solidary with the employee.11 Indeed, the presumption of
negligence on the part of an employer that arises whenever an employee's
negligence causes damage or injury to another, is only juris tantum.12 As
such, an employer may rebut the same by presenting proof that in the
selection and supervision of the employee, he/she has exercised the care and
diligence of a good father of a family.13

10. Ramos v. C.O.L. Realty Corporation, G.R. No. 184905, August 28, 2009
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To be relieved of liability, defendant Ben Tukmo should show that it

exercised the diligence of a good father of a family, both in the selection of
the employee and in the supervision of the performance of his duties. Thus,
in the selection of its prospective employees, the employer is required to
examine them as to their quali cations, experience, and service records.14
With respect to the supervision of its employees, the employer should
formulate standard operating procedures, monitor their implementation, and
impose disciplinary measures for their breach. To establish compliance with
these requirements, employers must submit concrete proof, including
documentary evidence. 15

In the case at hand, this was suf ciently proven by the defendant by
presenting evidence that exercised the diligence of a good father of a family,
both in the selection of the employee and in the supervision of the
performance of his duties since before hiring Reynaldo Oblak he ensured
that the truck driver had a valid license, the former knew the destination of
the truck and the reason as to why it had to go there, which was for
maintenance purposes. These facts show that defendant was not remiss as to
his obligations of supervision and selection of his employee. The Court
recognizes that there is no hard-and-fast rule on the quantum of evidence
needed to prove due observance of all the diligence of a good father of a
family as would constitute a valid defense to the legal presumption of
negligence on the part of an employer or master whose employee has, by his
negligence, caused damage to another. Jurisprudence nevertheless shows
that testimonial evidence, without more, is insuf cient to meet the required
quantum of proof.16 After all, the well-settled rule on evidence is that clear
and convincing evidence is required to overthrow a legal presumption.

11. Article 2194, Civil Code

12. Mendoza v. Sps. Gomez, 736 Phil. 460, 478 (2014)
13. Loadmasters Customs Services, Inc. v. Glodel Brokerage Corp., 654 Phil. 67, 79 (2011).
14. Estacion v. Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222
15. Estacion v. Bernardo, G.R. No. 144723, February 27, 2006, 483 SCRA 222
16. Reyes v. Doctolero, 815 Phil. 166, 178 (2017)
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II. APPLICABILITY OF THE DOCTRINE OF LAST CLEAR

CHANCE

Also the Doctrine of Last Clear Chance should be applied in this case.
The doctrine of last clear chance, stated broadly, is that the negligence of the
plaintiff does not preclude a recovery for the negligence of the defendant
where it appears that the defendant, by exercising reasonable care and
prudence, might have avoided injurious consequences to the plaintiff
notwithstanding the plaintiff's negligence.17

The doctrine necessarily assumes negligence on the part of the

defendant and contributory negligence on the part of the plaintiff, and does
not apply except upon that assumption. Stated differently, the antecedent
negligence of the plaintiff does not preclude him from recovering damages
caused by the supervening negligence of the defendant, who had the last fair
chance to prevent the impending harm by the exercise of due diligence.18
Moreover, in situations where the doctrine has been applied, it was
defendant's failure to exercise such ordinary care, having the last clear
chance to avoid loss or injury, which was the proximate cause of the
occurrence of such loss or injury. The facts of the case states that “Father
Mario saw a 10-wheeler truck running downhill from the opposite lane,
approximately thirty meters from his spot. Along the truck’s path was a 15-
meter long and 5-meter wide patch of an ongoing road re-blocking project
around which a yellow and black tape was installed to forewarn motorists.”
These statements alone would prove that Father Mario had the Last Clear
Chance to avoid the collision but he continued to traverse the road in which
the truck already occupied therefore leading to the accident.

This omission by Father Mario amounts to contributory negligence

which shall mitigate the damages that may be awarded to the private
respondent under Article 2179 of the New Civil Code, to wit:

17. Bustamante v. Court of Appeals, 271 Phil. 633, 641-642 (1991)

18. The Consolidated Bank & Trust Corporation v. Court of Appeals, 457 Phil. 688, 712 (2003)
 35

Article 2179. When the plaintiffs own negligence was the immediate
and proximate cause of his injury, he cannot recover damages. But if
his negligence was only contributory, the immediate and proximate
cause of the injury being the defendant's lack of due care, the plaintiff
may recover damages, but the courts shall mitigate the damages to be
awarded.

Contributory negligence is conduct on the part of the injured party,

contributing as a legal cause to the harm he has suffered, which falls below
the standard to which he is required to conform for his own protection."19
Based on the facts of the case, Father Mario saw the truck thirty meters from
his spot and he also saw the yellow and black tape was installed to forewarn
motorists that there was an ongoing road re- blocking project around which a
yellow and black tape was installed to forewarn motorists. These facts show
that there was contributory negligence on the part of the deceased which
resulted to the occurrence of the accident. Father Mario seeing that the truck
had to slightly veered to the center of the road in order to avoid the
construction should have stopped and let the truck safely pass by before he
continued on his way.

Petitioners poorly invoke the doctrine of "last clear chance". The

doctrine, in essence, is to the effect that where both parties are negligent, but
the negligent act of one is appreciably later in time than that of the other, or
when it is impossible to determine whose fault or negligence should be
attributed to the incident, the one who had the last clear opportunity to avoid
the impending harm and failed to do so is chargeable with the consequences
thereof.20 Stated differently, the rule would also mean that an antecedent
negligence of a person does not preclude the recovery of damages for the
supervening negligence of, or bar a defense against liability sought by,
another if the latter, who had the last fair chance, could have avoided the
impending harm by the exercise of due diligence.21

19. Philippine National Bank v. Cheah Chee Chong, G.R. Nos. 170865 & 170892, April 25, 2012, 671
SCRA 49, 64
 36

In this case, there was a presence of appreciable time from the

moment Father Mario saw the incoming truck and knowing that there was a
construction spot therein, as he was warned by the presence of yellow and
black tape installed in the construction spot, should have known that the
truck would avoid the said construction spot, and the collision of the motor
vehicles. Thus, Father Mario had the victim a last clear opportunity to avoid
the collision.

WHEREFORE, premises considered, judgment is hereby rendered nding

defendant BEN TUKMO NOT GUILTY for the death of Rev. Father Mario
Crespo. Thus, he is not liable for any of the damages claimed by plaintiff.

SO ORDERED.

Promulgated on February 25, 2023. Tacloban City, Leyte, Philippines.

LAWRENCE ESIO
Presiding Judge
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