Sunday, March 30, 2008
Congrats to the new lawyers!
Thursday, March 20, 2008
a slice of me
Saturday, March 15, 2008
fire in my being
Friday, March 14, 2008
19th honey-sary
Thursday, March 13, 2008
shamelessly corrupt
I swore never to write about the dreaded social disease ever again. But it is inevitable. Ever since I learned how to read, corruption, petty or big in scale has been a regular topic in the national broadsheets. Even in small town neighborhood discussions, whispers about corrupt governance is a staple. Corruption is an enemy we have been battling all this time. But its strength snowballs by the minute. Is there hope at all? I'm too afraid to answer.
For the past months, I have avoided reading the papers. If I do, I would skip the front pages for the happier and juicier showbiz gossips. I got tired of the incessant bickerings that define the Philippine political landscape. It has been a constant source of shame. One of the lawyers in the firm I work for asked me one day, "what's wrong with your President?". Or, "was your former President the one accused and convicted of plunder?" Or " I've been to your country, and my, why is it so corrupt?".
My, why is it indeed? How does an honest young Filipino professional contend with the fact that while he is working his ass off as dignifiedly as he could, some stupid old hag and her minions can taint his heritage without much effort.
It's not the country where I want to grow old anymore. Or raise my kids in. Change is a must. It is a shame. A real shame.
Saturday, March 8, 2008
The Art of Wordly Wisdom
Thursday, March 6, 2008
CIVIL PROCEDURE - Rule 10
SOLEDAD PROVIDO, plaintiff-appellant vs. OCTAVIO ACENAS etc , defendant-appellee
FACTS:
Plaintiff- appellant Soledad Provido was granted a homestead patent over a parcel of land consisting of 79,986 sqm and located at Silway 7, Polomolok, South Cotabato on October 1, 1954. Said land was sold to Acenas on October 15, 1963 who in turn sold it to the National Development Company (NDC) in 1966. NDC then leased said land to Dole Philippines under a Grower Agreement.
On September 19, 1968, Provido filed an action seeking exercise her right to repurchase under Sec. 119 of CA 141 against Acenas. Acenas filed an answer stating that the plaintiff's complaint states no cause of action and thta he no longer owns or holds the property concerned as same was sold to NDC.
Provido files her answer to the counterclaim on December 24, 1968, a motion for leave to amend complaint in order to implead NDC and Dole. Defendants, both NDC and Dole filed motions to dismiss on the grounds that the claim therein set forth had already been extinguished or was bound by the Statute of LImitations and that the complaint did not state any cause of action.
CFI dismissed the case in so far as Dole and NDC were concerned. Provido filed a motion for reconsideration which was also denied for lack of merit. Hence, this appeal.
ISSUEs:
1. Whether or not the plaintiff's right to repurchase has prescribed?
2. Whether or not Provido's complaint states a cause of action against Acenas?
RULING:
Assailed orders , SET ASIDE. Remanded for trial on the merits.
The original complaint clearly states a cause of action against Acenas namely the right given by law to Provido to repurchase the property from the buyer within 5 years from the date of the sale. The allegation in the answer that the NDC had already purchased the same from Acenas is of no consequence, for it is not the allegation in the answer but those in the complaint which determine whether or not the complaint itself states a cause of action.
The fact is if an original complaint already states a cause of action in favor of a plaintiff, the subsequent filing of an amended complaint makes the filing retroact to the time the original complaint was filed. (Pangasinan Transportation Co. vs. Philippine Farming Co. Ltd., 81 Phil 273)
Thus in so far as NDC and Dole is concerned, the filing of the amended complaint against them was legally effectuated upon the filing of the original complaint (therefoe within the prescribed period of 5 years), they having immediately stepped into Acenas shoes.
mideast sun
PERSONS - Psychological Incapacity
REPUBLIC of the PHILS., petitioner vs. RORIDEL O. MOLINA, respondents
FACTS:
Respondent filed a verified petition for declaration of nullity of her marriage to Reynaldo Molina, the latter being psychologically incapable of complying with essential marital obligations and was a highly immature and habitually quarrelsome individual.
The parties were legally married in 1985 and out of said marriage was born a son. They were separated-in-fact for more than 3 years. CA declared the marriage void ab initio on the ground of psychological incapacity under Article 36 of the Family Code.
Hence, this appeal.
ISSUE:
Whether or not subject marriage is void ab initio due to psychological incapacity.
RULING:
No. The marriage subsists and remains valid.
Psychological incapacity muct be characterized by a) GRAVITY; b) JURIDICAL ANTECEDENCE and c) INCURABILITY.
In the present case, there is no clear showing that the psychological defect spoken of is an incapacity. It appears to be more of a difficulty, if not outright refusal or neglect in the performance of maritime obligations.
Mere showing of irreconcilable differences and conflicting personalities in no wise constitutes pscychological incapacity. There was no showing of the existence of the 3 characteristics above mentioned.
The following are guidelines set forth by the SC for the interpretation and application of Article 36 of the Family Code.
1) The burden of proof to show the nullity of the marriage belongs to the plaintiff. Any doubt should be resolved in favor of the existence and continuation of the marriage and against its dissolution and nullity.
2.) The root cause of the psychological incapacity must be:
a) medically or clinically identified;
b) alleged in the complaint;
c) sufficiently proven by experts;
d) clearly explained in the decision.
3) The incapacity must be proven to be exisiting at the time of the celebration of the marriage.
4) Such incapacity must also be shown to be medically or clinically permanent or incurable.
5) Such illness must be grave enough to bring about the disability of the party to assume the essential obligations of marriage.
6.) The essential marital obligations must be those embraced by Articles 68-71 of the Family Code as regards husband and wife as well as Articles 220-221 and 225 of the same Code in regard to parents and their children.
7.) Interpretatiosn given by the National Appellate Matrimonial Tribunal of the Catholic Church of the Philippines, while not controlling or decisive, should be given great respect by by our courts.
8.) The trial court must order the Prosecuting Attorney or the Solicitor General to appear as counsel for the State.
CRIMINAL LAW - Frustrated/ Attempted
UNITED STATES, plaintiff-appellee vs. PROTASIO EDUAVE, defendant-appellant
FACTS:
Defendant was charged of the crime of rape resulting to the pregnancy of Ms. X who happens to be the daughter of his paramour. Incensed, defendant rushed to the girl and struck here from behind, in part at least, with a sharp bolo producing a frightful gash in the lumbar region and slightly to the side 8 1/2 inches long and 2 inches deep severing all of the muscles and tissues of that part.
There was no question that defendant was guilty. The only dilemma is the precise crime of which he should be convicted.
ISSUE:
Whether or not accused should be convicted of frustrated murder.
RULING:
Yes, accused should be convicted of frustrated murder.
A felony is frustrated when the offender performs all the acts of execution which should produce the felony as a consequence, but which, nevertheless do not produce it by reason of causes independent of the will of the prepetrator. (See Art 3, Revide Penal Code)
The essential element which distinguishes attempted from frustrated felony is that, in the latter, there is no intervention of a foreign or extraneous cause or agency between the beginning of the commission of the crime and the moment all of the acts have been performed which should result in the consummated crime. While in the former there is such intervention and the offender does not arrive at the point of performing all the acts which should produce the crime.
In case of an attempt, the offender never passes the subjective phase of the offense. He is interrupted and compelled to desist by the intervention of outside causes before the subjective phase is passed.
In case of frustrated crimes, the subjective phase is completely passed. Subjectively, the crime is complete. Nothing interrupted the offender while he was passing throught he subjective phase. The crime, however, is not consummated by reason of the causes independent of the will of the offender. He did all that was necessary to commit the crime. If the crime did not result as a consequence it was due to something beyond his control.
The Book of Five RIngs
Musashi introduced himself as a skilled warrior who never knew defeat. At age 30, he realized that his victories were not due to his mastery of strategy. So he studied and searched for the principle and came to realize the Way of Strategy when he was 50. He came up with 5 books concerning different aspects for this principle namely Ground, Water, Fire, Air and Void.
The Ground Book
"There is timing in the whole life of the warrior, in his thriving and declining, in his harmony and discord."
This book focused on the use of weapons. But I was more concerned with his discussions on timing as part of the strategy. It is emphasized that there is timing in everything and that timing in strategy cannot be mastered without a great deal of practice. I agree. This principle is not only applicable in the battlefield. In our daily lives, we encounter situations wherein the exact moment when we speak is as important as the words that we are going to say. As a public speaker back in college, I enjoyed taking control of the audience atmosphere by giving equal emphasis to words and pauses. There was power in it but long hours of practice was needed to eventually wield said power to proper advantage.
The Water Book
"Both in fighting and in everyday life you should be determined though calm. Meet the situation without tenseness yet not recklessly, your spirit settled yet unbiased. Even when your spirit is calm do not let your body relax, and when your body is relaxed, do not let your spirit slacken."
Here, the principal focus was to methods of achieving victory in combat. Techniques in handling weapons and proper footwork were explained all through out. But I was more interested in his ruminations about spiritual bearing in strategy. Most of the time, it is being calm that get us through nerve-wracking situations. It requires real discipline to do it though. During the time when exams loom like monsters, I was one of the bravest. I was able to develop a calm resolve even if I was not really that prepared. I learned from previous experience that even if I studied hard, if I panic, i can't remeber anything.
The Fire Book
Fighting was lengthily discussed here. Though useful in combat, someone needs enough background in the art of the sword before the principles essayed here can be applied in practical non-combative life.
The Wind Book
"As I said before, if you fix your eyes on details and neglect important things, your spirit will become bewildered, and victory will escape you.""
The Book of the Void
"When your spirit is not in the least clouded, when the clouds of bewilderment clear away, there is the true void."
Constitutional Law - FREEDOM OF SPEECH
Amelito R. Mutuc, petitioner vs. COMELEC, respondent
Facts:
This is a Special Civil Action for Prohibition filed by Amelito R. Mutuc, a resident of Arayat, Pampanga and candidate for the position of delegate to the Constitutional Convention.
He alleged that respondent informed him by telegram that his Certificate of Candidacy is given due course but prohibited him from using jingles in his mobile units equipped with sound systems and loud speakers. Hence, this case was filed on the premise that said COMELEC order is violative of his constitutional right to freedom of speech.
Respondent COMELEC, on the other hand contended that the jingle proposed by petitioner is a recorded or taped voice of a singer and therefore a tangible propaganda material under Constitutional Convention Act 2 and hence is subject to confiscation.
Issue:
Whether or not subject COMELEC order is unconstitutional?
Ruling:
Yes. COMELEC is permanently restrained to enforce assailed order.
In unequivocal language, the Constituion prohibits any abridgment of free speech or free press. What respondent did was impose censorship on petitioner, an evil against which this constitutional right is directed.
The concept of the Cnstitution as fundamental law, setting forth the criterion for the validity of any public act whether proceeding from the highest official or the lowest functionary, is a postulate of our system of government.
Tuesday, March 4, 2008
the office
This is Burj Dubai Square Building 3. Our office is on the 5th floor (notice the one with the lights on). it is just a stone's throw away from the tallest building in the world, Burj Dubai. We are home to almost 60 lawyers from various countries namely UK, New Zealand, Australia, Sudan, India, USA, Egypt, UAE, Iran, Iraq among others.