Republic of the
SUPREME COURT
SECOND DIVISION
ANG KEK CHEN, G.R. No. 161685
Petitioner,
Present:
QUISUMBING,
J., Chairperson,
- versus - CARPIO,
CARPIO
MORALES,
TINGA,
and
VELASCO,
JR., JJ.
SPOUSES ATTY. ELEAZAR S.
CALASAN and LETICIA B. Promulgated:
CALASAN,
Respondents. July 24, 2007
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D E C I S I
O N
VELASCO, JR., J.:
In this Petition for Review on Certiorari
under Rule 45 of the 1997 Revised Rules of Court, the distinction between
“actual residence” and “domicile” comes once again under review.
The Facts
Petitioner
Ang Kek Chen resides at
Respondent
Atty. Eleazar S. Calasan was born in Aparri, Cagayan on
Respondent
Atty. Calasan was the counsel of one Jaime U. Lim, an opponent of petitioner. Petitioner alleged that his residence had
been damaged by the corporation of which Jaime U. Lim was president.
While
Atty. Calasan was acting as counsel for Jaime Lim, petitioner wrote a letter
and filed a counter-affidavit which respondent Atty. Calasan believed maligned
him, with copies furnished various people, among them high officials of the
Philippine government. Atty. Calasan
then filed criminal cases for libel against petitioner in Aparri, Cagayan,
among them Crim. Case Nos. 07-1168 and VI-1094, which were dismissed.
Petitioner
responded by filing his own administrative cases against respondent Atty.
Calasan, among them Administrative Case Nos. 5444 and 6233, alleging serious
gross misconduct on the part of Atty. Calasan and praying for his
disbarment. It is noted that even among
his pleadings in this particular case, even in his final memorandum, he made
references to what he believed were betrayals of the attorney’s oath by Atty.
Calasan, and with repeated calls for Atty. Calasan’s disbarment.
On
On
January 8, 2002, petitioner filed a Motion to Dismiss on the following grounds:
(1) that the court had no jurisdiction over the subject matter of the claim; (2)
that the venue was improperly laid; (3) that the pleading asserting the claim
stated no cause of action; (4) that a condition precedent for filing claim had
not been complied with; (5) that the claim was barred by the statute of
limitations; and (6) that the claim or demand set forth in plaintiff’s
pleadings had been abandoned or otherwise extinguished.[4]
In
the
The Case in the Court of Appeals
Respondents
brought the matter to the Court of Appeals (CA) via a Petition for Certiorari
under Rule 65, dated
Respondents raised one issue in their
petition, thus:
RESPONDENT JUDGE ACTED WITHOUT OR IN
EXCESS OF JURISDICTION AND IN DISMISSING THE COMPLAINT FOR ALLEGED IMPROPER
VENUE AND THERE IS NO OTHER ADEQUATE, PLAIN AND SPEEDY REMEDY IN THE ORDINARY
COURSE OF LAW OTHER THAN THIS PETITION.[8]
In
a Decision promulgated on
On
WHEREFORE,
the motion for reconsideration is hereby GRANTED. Our decision dated
SO ORDERED.[11]
Dissatisfied
with the result, Ang Kek Chen filed the present petition on
The Issues
Petitioner,
who is not represented by counsel, presents the issues in the case as follows:
(A) WHETHER OR NOT, the Petition for Certiorari was CORRECTLY DISMISSED by the Honorable Court of Appeals in CA G.R. SP No. 70335 in its decision promulgated on August 12, 2002, ANNEX “C” of this Petition, thereby upholding the correct Decision of the respondent Judge that the venue of the out-of-town complaint for libel is improperly laid.
(B) CONSEQUENTLY, WHETHER OR NOT, the decision ANNEX “C” of this Petition, was ERRONEOUSLY REVERSED by the Honorable Court of Appeals in its resolutions dated November 21, 2004 and January 21, 2004.
(C)
WHETHER OR NOT, the Petition for Certiorari filed by
the respondents (then petitioners) can
substitute for their LOST APPEAL.[12]
The
petition has merit.
This
case will be resolved on the core issue—the interpretation and application of
the third paragraph of Article 360 of the Revised Penal Code, the portion of which
reads:
The criminal and civil action for damages in cases of written defamations as provided for in this chapter, shall be filed simultaneously or separately with the Court of First Instance of the province or city where the libelous article is printed and first published or where any of the offended parties actually resides at the time of the commission of the offense x x x (emphasis supplied).
Respondents
claim that their actual residence is in Aparri, Cagayan. The trial court made the following findings
on the matter:
True, plaintiffs are residents and domiciled in Aparri, Cagayan. In fact, they are registered voters of Aparri, Cagayan. However, they also admit that they have a residential house in Las Piñas and it is in Las Piñas where they stay most of the time due to their profession and occupation. In short, plaintiffs are habitual residents of Las Piñas and not in Aparri, Cagayan. Aparri is plaintiffs’ legal residence and place of domicile. However, to the Court’s opinion, plaintiffs’ actual residence is in Las Piñas, Metro-Manila [sic] as they are habitually residing thereat due to their profession and occupation.[13]
When
respondents raised this matter to the CA via a petition for certiorari, the
findings of the trial court were upheld by the appellate court in its
Petitioners
thus appear to have misread the provisions of Article 360 of the Revised Penal
Code, as amended, when they filed their criminal and civil complaints in
Aparri, Cagayan. Clearly, the civil and
criminal complaint should be filed in the Regional Trial Court of Manila, where
petitioners reside or where the article was first printed or published. But since petitioners opted to choose place
of residence, we shall now discussed [sic] where petitioners properly resides
[sic]. In procedural law, specifically
for purposes of venue it has been held that the residence of a person is his
personal, actual or physical habitation or his actual residence or place of
abode, which may not necessarily be his legal residence or domicile provided he
resides therein with continuity and consistency. Applying this, petitioners clearly were
residents of
The
CA noted the findings of the other Aparri RTC branches in the dismissals of
criminal cases for libel filed by respondents against petitioner to conclude
that respondents had their actual residence in Las Piñas.
In
Criminal Case No. 07-1168 decided by the Aparri Cagayan RTC, Branch 7, the
trial court, despite finding that Atty. Calasan’s domicile was in Aparri,
Cagayan, dismissed the criminal information against petitioner, stating, thus:
Under the circumstances, therefore, the
situation of private complainant does not fall within the conceptual meaning of
the term “residence” as explained in the cases mentioned above. His situation is that he owns a house in
Aparri and comes home at least once a month.
However, his presence in the place of his residence, although
consistent, is admittedly not continuous.
For this reason, the complainant’s stay at his house in Aparri may only
be considered as occasional or intermittent.
The requirement is that his stay in his place of abode must not only be
consistent but also continuous. Therefore, his stay in Aparri is not
“residence” for purposes of determining venue in libel cases.[15]
In
Criminal Case No. VI-1094 decided by the Aparri, Cagayan RTC, Branch 6, the
trial court likewise dismissed the information against petitioner, holding
that:
The Court does not believe that the offended party is only temporarily residing in Manila for the following reasons: Seventy percent of his cases are cases in Metro Manila; he has his law office in Metro Manila but he has none in Aparri, Cagayan; he and his family reside in Las Pinas [sic] though he has an ancestral house in Aparri, Cagayan. His presence in Aparri is seldom, while he is most of the time in Metro Manila. The offended party, therefore, is actually residing in Las Pinas [sic] and he should have filed the libel case in Las Pinas [sic], Metro Manila.[16]
Considering
the foregoing findings of these trial courts, as well as the findings of the
Aparri, Cagayan RTC, Branch 8 in Civil Case No. 08-418, the CA found that
respondents were residents of Las Piñas.
However,
upon a Motion for Reconsideration from respondents, the CA set aside its
earlier Decision, its findings reading as follows:
We have closely examined the records and we find that petitioners’ residence is in Aparri, Cagayan.
As stated, an individual does not lose the domicile even if he has lived and maintained residences in different places. Residence, it bears repeating, implies a factual relationship to a given place for various purposes. The absence from legal residence or domicile to pursue a profession, to study or to do other things of a temporary or semi permanent nature does no [sic] constituent loss of residence. Thus, the assertion by the trial court that they could not have been a resident [sic] of Aparri, Cagayan is misplaced.[17]
The CA erred in its findings.
The trial court did not find that
respondents were not residents of Aparri, Cagayan. It specifically stated that they were in fact
“residents and domiciled in Aparri, Cagayan.”[18]
The crucial distinction that must be
made is between “actual residence” and “domicile.” The case of Garcia Fule v. Court of Appeals had already made the distinction in
1976. The pertinent portion of the case
reads as follows:
But,
the far-ranging question is this: What does the term “resides” mean? x x x We lay down the doctrinal rule that the term
“resides” connotes ex vi termini
“actual residence” as distinguished from “legal residence or domicile.” This term “resides,” like the terms
“residing” and “residence,” is elastic and should be interpreted in the light
of the object or purpose of the statute or
rule in which it is employed. In the
application of venue statutes and rules—x x x
residence rather than domicile
is the significant factor. Even where the
statute uses the word “domicile” still it is construed as meaning residence and
not domicile in the technical sense.
Some cases make a distinction between the terms “residence” and
“domicile” but as generally used in statutes fixing venue, the terms are
synonymous, and convey the same meaning as the term “inhabitant.” In other words, “resides” should be viewed or
understood in its popular sense, meaning the personal, actual or physical
habitation of a person, actual residence or place of abode. It signifies physical presence in a place and
actual stay thereat. In this popular
sense, the term means merely residence, that is personal residence, not legal
residence or domicile. Residence simply
requires bodily presence as an inhabitant
in a given place, while domicile requires bodily presence in that place and
also an intention to make it one’s domicile.
No particular length of time of residence is required though; however,
the residence must be more than temporary.[19]
It is clear that in granting respondents’
Motion for Reconsideration, the CA accepted the argument of respondent Atty.
Calasan that “residence” is synonymous with “domicile.”
In Saludo, Jr. v. American Express International, Inc., the term
“residence” was equated with “domicile” as far as election law was
concerned. However the case also stated
that:
for purposes of
venue, the less technical definition of “residence” is adopted. Thus, it is understood to mean as “the
personal, actual or physical habitation of a person, actual residence or place
of abode. It signifies physical presence
in a place and actual stay thereat. In
this popular sense, the term means merely residence, that is, personal
residence, not legal residence or domicile.
Residence simply requires
bodily presence as an inhabitant in a
given place, while domicile requires
bodily presence in that place and also an intention to make it one’s domicile.”[20]
There is clearly a distinction
between the two terms, “residence” and “domicile,” which shall be applied in
this civil action for damages.
Art. 360 of the Revised Penal Code
does not use the term “domicile” in providing for venue in the filing of the
criminal case and the civil action for damages.
The applicable clause of Art. 360 in this case states that “where any of
the offended parties actually resides
at the time of the commission of the offense x x x (emphasis supplied).” It is thus essential to determine where the
offended parties, the respondents in this case, actually resided during the
year 2000, the time of the commission of the offense.
The published matters, subjects of
this civil action, are a counter affidavit dated June 9, 2000 and a letter
dated June 19, 2000, both from petitioner, neither of which was submitted to
persons in Aparri, Cagayan. To prove
respondent Atty. Calasan’s residence at the time, which petitioner alleged was
Respondents’ legal residence or
domicile has been established as being in Aparri, Cagayan. The finding of the trial court that the
actual residence of respondents was in Las Piñas is not inconsistent with the
establishment of respondents’ domicile in Aparri. To state that respondents’ actual residence
was in Las Piñas does not mean that they have abandoned their legal
residence. The case of Koh v. Court of Appeals stated:
This Court held in the case of Uytengsu vs. Republic, 50 O.G. 4781, October 1954, reversing its previous stand in Larena v. Ferrer, 61 Phil. 36 and Nuval v. Guray 52 Phil 645, that—
“There is a difference between domicile and
residence. Residence is used to indicate
a place of abode, whether permanent or temporary; domicile denotes a fixed
permanent residence to which when absent, one has the intention of returning. A man may have a residence in one place and a
domicile in another. Residence is not domicile, but domicile is
residence coupled with the intention to remain for an unlimited time. A man can have but one domicile for one and
the same purpose at any time, but he may have numerous places of
residence. His place of residence
generally is his place of domicile, but is not by any means, necessarily so
since no length of residence without any intention of remaining will constitute
domicile.”[22] (Italics
supplied.)
In respondents’ case, they maintained
a residence in Las Piñas in the year 2000, and their domicile in Aparri,
Cagayan which was maintained year after year.
As mentioned in Koh, one may
have both a residence and a domicile.
One need not abandon one’s domicile to acquire a separate residence, if
this separate residence is not intended to be legal residence as well. The ideas of “domicile” and “actual
residence” may even at times refer to one and the same place, but not so in
this particular case, where there are two particular and distinct places
referred to.
Thus, the trial court was correct in
dismissing the complaint because it found that the offended parties actually
resided for the greater part of the year 2000 in Las Piñas, even if their legal
residence was in Aparri, Cagayan. To
reiterate, for purposes of determining venue, “residence” is not synonymous
with “domicile.” One may reside in a
place apart from one’s legal residence, without changing domicile, and that
residence would constitute “actual residence” for purposes of determining
venue.
In passing, it must be noted that
petitioner is not a lawyer, and it may be instructive for him to consult counsel
before filing pleadings or praying for results that have no legal basis, if for
purposes of clarity alone. As for his
prayer that respondent Atty. Calasan be disbarred, this petition is not the
proper remedy for such. Should he still
wish to pursue such an action, he must follow the proper procedure, which would
grant respondent Atty. Calasan due process.
The fact that petitioner, who is not an attorney, was allowed to plead
his case before this Court does not exempt him from proper procedure, which would
put opposing lawyers at an unfair disadvantage.
WHEREFORE,
premises considered, the questioned November 21, 2002 Resolution of the CA in
CA-G.R. SP No. 70335 is hereby REVERSED
and SET ASIDE and its
SO ORDERED.
PRESBITERO
J. VELASCO, JR.
Associate
Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
ANTONIO T.
CARPIO CONCHITA
CARPIO MORALES
Associate Justice Associate
Justice
DANTE O. TINGA
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the
above Decision had been reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
C E R T I F
I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s Attestation, I certify that the
conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
[3] CA rollo, p. 21.
[4]
[5]
[6]
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