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Ordinary Appeal is Foreclosed in Presumptive Death Cases

By J. Vicente Q. Roxas

Preface

This article highlights the Supreme Court case of Republic vs. Gloria Bermudez-Lorino, Jan. 19, 2005, 449 SCRA 57, that by express mandate of Art. 247 of the Family Code, the Court of Appeals is supposed to have lost its jurisdiction over ordinary appeals from judgments of Regional Trial Courts granting petitions for declaration of presumptive death. Even the Solicitor General, on behalf of the Republic, is foreclosed from filing an ordinary appeal in violation of the express provision of Art. 247 of the Family Code.

Express Provision: Court of Appeals
has no jurisdiction.

By express mandate of Art. 247 of the Family Code, the Court of Appeals is supposed to have lost its jurisdiction over ordinary appeals from judgments of Regional Trial Courts granting petitions for declaration of presumptive death.

Art. 247 of the Family Code expressly provides:

Art. 247. The judgment of the court shall be immediately final and executory.

Thus, the Court of Appeals has no jurisdiction to entertain ordinary appeals from decisions of the trial court in actions for declaration of presumptive death.

Supreme Court held in Republic vs.
Gloria Bermudez-Lorino that there is
no ordinary appeal in presumptive
death cases.

The Supreme Court has warned the Court of Appeals in the recent case of Republic vs. Gloria Bermudez-Lorino, Jan. 19, 2005, 449 SCRA 57, that the Court of Appeals would be committing grave reversible error if it failed to dismiss, on ground of lack of jurisdiction, appeals from judgments of Regional Trial Courts in petitions for declaration of presumptive death, by mandate of express provision of Art. 247 of the Family Code, which states that the judgment of the Regional Trial Court shall be immediately final and executory, and therefore, there can be no appeal to the Court of Appeals.

Distinction between the “presumed
dead” and the “actually dead” is that
in the latter, the cadaver has to be
produced.

The underlying reason intended by the framers of the law for Art 247 in making, under Art. 247, a  judgment of the RTC immediately final and executory is – to allow petitioners, usually the heirs, to go on with their lives ([1] divide the inheritance, if any; and [2] for the remaining spouse to remarry) without the absentee. After so many years prescribed by the law, a person missing for such length of time, can, by fiction of law,  be declared as: “presumed” dead. The law does not say the absentee person is actually “dead” but allows a kinder alternative – a fictional situation – to declare a missing person “presumed” dead – without requiring to see the cadaver of the missing person - which makes a world of a difference.

Jurists, however, find it difficult to accept Art. 247 as it is. They believe that said law can be used by people for their own wicked intentions like “getting rich” and “getting rid of an unwanted spouse.” But before one jumps to conclusions in disregard of Art. 247, at the outset, what is foreclosed is only “ordinary appeal”. There are other remedies available to assail the decision of the trial court.

It should not be forgotten that for a person to be declared “presumed dead”, he must be missing for a long time and the person who wishes the missing person declared dead must have no hand in that missing person’s state. So how in the world would petitioner know where to start to “try to locate” the whereabouts of such missing person or even know, for that matter, whatever happened to such missing person. The reason the absentee is called a “missing person” is because no one has seen the “missing person” and no one has heard about the “missing person”.

Semantics is the least expected tool for any legal principle. A legal principle, such as that provided in Art. 247 simply means that if the requisite years are shown to be extant that a person is missing, the determination by a court of law that the person has been found to be missing for a number of years should foreclose ordinary appeal on the issue of presumption of death.

This is the reason why the Court of Appeals, by express mandate of Art. 247 of the Family Code, is supposed to have lost its jurisdiction over ordinary appeals from judgments of Regional Trial Courts in petitions for declaration of presumptive death – because Art. 247 makes judgment of the RTC immediately final and executory – so that the heirs can now distribute the estate of “the presumed dead” and for the wife or the husband to now marry again – to get on with their lives and not spend their lifetime looking for the dead body or carcass of the “presumed dead”.

Declaration of presumptive death is a
legal fiction created by law.

The better issue to be tackled is whether the term: “Till death do us part”, could be used under Art 247 of the Family Code, although a presumptive death only, as a fiction of law that could void or end a marriage. As far as the Family Code is concerned, there is no distinction between “actual brain dead” from “court-declared as presumed dead”.

The presumption of death is only a legal fiction, like many other legal concepts.  Presumption of death cannot be construed so literally that one must have a corpus delicti, or to be more blunt – a cadaver.

There are still other remedies available: certiorari under Rule 65 is available since ordinary appeal is foreclosed when there are allegations of grave abuse of discretion by the Judge. If there are sightings of the missing persons who have been “declared as presumed dead”, a petition for certiorari could still be filed because the law recognizes that when the missing person “declared as presumed dead” re-appears, the decision of the Regional Trial Court, shall become ipso facto void because the “presumption” has ceased to be a presumption – but in reality false because the missing person has re-appeared to show himself or herself as alive.

Presumption of death has by nature always been a “cloudy”, “unknown”, “undeterminable” affair. That is why it is called a presumption of death. A missing person is actually dead when his cadaver is shown - only acceptable proof in law (corpus delicti) to show a person is actually dead.

Jomoc and Alegro cases did not
abandon the Lorino doctrine. They
were treated as petitions for certiorari,
instead of ordinary appeals.

The two cases rendered by the Supreme Court after the Lorino case (that was promulgated January 19, 2005), namely: (1) Republic vs Court of Appeals and Jomoc (G.R. No. 163604, May 6, 2005); and (2) Republic of the Philippines vs Court of Appeals and Alegro (G.R. No. 159614, December 9, 2005), did not modify, reverse or abandon the Lorino case because: (a) these two cases could be distinguished from the Lorino cases in many aspects since they did not categorically state that the Lorino case was modified, reversed, or abandoned; (b) implied reversals or implied modifications are not favored; (c) the two cases were merely  treated liberally so that the “ordinary appeal” of the Solicitor General, the government lawyer, was treated as a petition for certiorari in the interest of justice and speedy disposition of cases; and (d) the two cases  concentrated on the different issue that it was apparent or even blatant that the petitioning spouse did not exert any relevant effort at all to try to look for the missing spouse so that there was no well-founded belief that the RTC could have a basis to even presume that the missing spouse was dead, because it appears that the missing spouse was deliberately hiding from the petitioning spouse.

The Lorino case doctrine is sound and practical.

FIRST, jurisdiction cannot be subject of any compromise. It is expressly provided by the Family Code, that the judgment of the RTC in presumptive death cases is final and executory and therefore, there is no ordinary appeal to the Court of Appeals from the RTC. SECOND, under Section 1 (h), Rule 41 of the Revised Rules of Court, no appeal may be taken from an order dismissing (or granting) an action without prejudice, although Rule 41, just like Art. 247 of the Family Code, allows the aggrieved party to file an appropriate special civil action under Rule 65. Judgments in presumptive death, by express provision of law, are not only summary in nature but also without prejudice because the missing person declared as “presumed dead” may re-appear, in which event, the judgment declaring the missing person as “presumed dead” is void – not merely voidable. If the petition is denied by the RTC, petitioner can still file another case with the RTC. The proclamation of presumptive death is without prejudice in case of reappearance of absent spouse. THIRD, under Section 1 (f), Rule 41, no appeal may be taken from an order of execution and under Art. 247 of the Family Code, the judgment of the RTC is immediately executory. In presumptive death cases, judgments are by their nature not only immediately final but also immediately self-executory (you do not need a writ of execution). FOURTH, by the very nature of a petition for declaration of presumptive death, the cause of action is only directed towards achieving a “presumption” – as opposed to a conclusion – which makes appeal an exercise in futility because, by nature, all presumptions are disputable. The very reason why it is a presumption is because there could be no conclusion of a person’s having actually died until the cadaver is presented. It always remains doubtful, disputable and unsure. FIFTH, it is not the business of courts to question the wisdom of the framers of the Family Code who, to prevent a mockery of the provision, made their intentions express that there should be no appeal that could botch or delay the execution of the judgment of the RTC as to presumptive death. Sixth, the judgment in petition for declaration of presumptive death is merely a presumption, it already having been made clear in the law (which expressly states: “without prejudice to the effect of reappearance of the absent spouse”) that the “presumption that the missing person is dead” would ipso facto become null and void when the absent person (usually a missing spouse) actually reappears. For practical purposes, “a ghost ceases to be a ghost when a person appears in the flesh. Why debate a legal fiction? Why debate a ghost? The end result and objective of a petition for declaration of presumptive death is not a conclusion but merely a presumption. This provision in the Family Code is unique and has no parallel provision in any of our laws. Death in petitions for declaration of presumptive death is “presumptively” settled – by legal fiction. Like the concept of a corporation as a legal fiction, declaration of presumptive death is, too, a legal fiction. One does not belabor discussion of why it exists as a legal fiction. The legal fiction is created by law. Its existence is given legal acceptance.

“Presumption” only, nothing
conclusive, because the decision is
void if the missing person re-appears.

Art. 247 of the Family Code is an express, self-executing, and innovative provision that gave life to petitions for declaration of presumptive death. It is frank and pragmatic by recognizing the special features in petitions for declaration of presumptive death that: (1) there is always the possibility that the person presumed dead by the court may reappear; (2) that the primordial issue in petitions for declaration of presumptive death is the passage of a definite period of time as set by the New Civil Code to qualify for petitions for declaration of presumptive death.

What is final and executory means it
is immutable, unalterable, and
cannot be modified through ordinary
appeal - even by the Supreme Court.

Nothing is more settled in law than that when a judgment becomes final and executory, it becomes immutable and unalterable, and the same can no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and whether made by the highest court of the land (Nunal v Court of Appeals, 221 SCRA 26).

The Solicitor General, on behalf of the Republic, is foreclosed from filing an ordinary appeal in violation of the express provision of Art. 247 of the Family Code.




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