11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

106 SUPREME COURT REPORTS ANNOTATED

Abellana vs. Marave

*
No. L-27760. May 29, 1974.

CRISPIN ABELLANA and FRANCISCO ABELLANA,

petitioners, vs. HONORABLE GERONIMO R. MARAVE, Judge,
Court of First Instance of Misamis Occidental, Branch II; and
GERONIMO CAMPANER MARCELO LAMASON, MARIA
GURREA, PACIENCIOSA FLORES and ESTELITA NEMEÑO,
respondents.

_________________

* SECOND DIVISION.

107

VOL. 57, MAY 29, 1974 107

Abellana vs. Marave

Criminal Procedure; Independent civil action; Reservation of civil

action when criminal case is tried anew on appeal is not barred.—The
offended party in a criminal case has the remedy of pursuing an independent
civil action, although he has not made any reservation therefor in the city
court where the action was begun, if the case is appealed to the court of first
instance where the trial de novo is required by the Rules. The rule in this
jurisdiction is that upon appeal by the defendant from a judgment of
conviction by the municipal court, the appealed decision is vacated and the
appealed case shall be tried in all respects anew in the court of first instance
as if it had been originally instituted in that court. So it is in civil cases
under Section 9 of Rule 40.
Same; Same; The right to initiate a civil action apart from the criminal
case is substantive.—The right to proceed independently of criminal
prosecution under Article 33 of the Civil Code is a substantive right, not to
be frittered away by a construction that could render it nugatory, if through
oversight, the offended parties failed at the initial stage to seek recovery for
damages in a civil suit. The grant of power to this Court, both in the present
Constitution and under the 1935 Charter, does not extend to any diminution,
increase or modification of substantive right.
www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 1/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

Statutory construction; Case at bar, literal construction of law not

favored.—Counsel is not to ignore the basic purpose of litigation, which is
to assure parties justice according to law. He is not to fall prey, as
admonished by Justice Frankfurter, to the vice of literalness. The law as an
instrument of social control will fail in its function if through an ingenious
construction sought to be fastened on a legal norm, particularly a procedural
rule, there is placed an impediment to a litigant being given an opportunity
of vindicating an alleged right.

PETITION for certiorari from an order of the Court of First Instance

of Misamis Occidental. Marave, J.

The f acts are stated in the opinion of the Court.

     Prud. V. Villafuerte for petitioners.
     Hon. Geronimo R. Marave in his own behalf.

FERNANDO, J.:

This petition for certiorari is characterized by a rather vigorous

insistence on the part of petitioners Crispin Abellana and Francisco
Abellana that an order of respondent Judge was issued with grave
abuse of discretion. It is their contention

108

108 SUPREME COURT REPORTS ANNOTATED

Abellana vs. Marave

that he ought to have dismissed an independent civil action filed in

his court, considering that the plaintiffs, as offended parties, private
1
respondents here, failed to reserve their right to institute it
separately in the City Court of Ozamis City, when the criminal case
for physical injuries through reckless imprudence was commenced.
Such a stand of petitioners was sought to be bolstered by a literal
2
reading of Sections 1 and 2 of Rule 111. It does not take into
account, however, the rule as to a trial de novo found in Section 7 of
3
Rule 123. What is worse, petitioners appear to be oblivious of the
principle that if such an interpretation were to be accorded the
applicable Rules of Court provisions, it would give rise to a grave
constitutional question in view of the constitutional grant of power
to this Court to promulgate rules concerning pleading, practice, and
procedure being limited in the sense that they "shall not diminish,
4
increase, or modify substantive rights." It thus appears clear that the
petition for certiorari is without merit.

_______________

www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 2/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057
1 The private respondents are:. Geronimo Campaner, Marcelo Lamason, Maria
Gurrea, Pacienciosa Flores and Estelita Nemeño.
2 The aforesaid sections read as follows: "Sec. 1. Institution of criminal and civil
actions.—When a criminal action is instituted, the civil action for recovery of civil
liability arising from the offense charged is impliedly instituted with the criminal
action, unless the offended party expressly waives the civil action or reserves his right
to institute it separately. Sec. 2. Independent civil action.—In the cases provided for
in Articles 31, 32, 33, 34 and 2177 of the Civil Code of the Philippines, an
independent civil action entirely separate and distinct from the criminal action, may
be brought by the injured party during the pendency of the criminal case, provided the
right is reserved as required in the preceding section. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a preponderance of
evidence."
3 Section 7 of Rule 123 reads as follows: "An appealed case shall be tried in all
respects anew in the Court of First Instance as if it had been originally instituted in
that court."
4 According to Article VIII, Section 13 of the 1935 Constitution:

"The Supreme Court shall have the power to promulgate rules concerning pleading, practice,
and procedure in all courts, and the admission to the practice of law. Said rules shall be uniform
for all courts of the same grade and shall not diminish, increase, or modify substantive rights.
The existing laws on pleading, practice, and procedure are hereby repealed as statutes, and are
declared Rules of Courts, subject to the power of the Supreme Court to alter and

109

VOL. 57, MAY 29, 1974 109

Abellana vs. Marave

The relevant facts were set forth in the petition and admitted in the
answer. The dispute had its origins in a prosecution of petitioner
Francisco Abellana of the crime of physical injuries through reckless
imprudence in driving his cargo truck, hitting a motorized pedicab
resulting in injuries to its passengers, namely, private respondents
Marcelo Lamason, Maria Gurrea, Pacienciosa Flores, and Estelita
Nemeño. The criminal case was filed with the city court of Ozamis
City, which found the accused Francisco Abellana guilty as charged,
damages in favor of the offended parties likewise being awarded.
The accused, now petitioner, Francisco5 Abellana appealed such
decision to the Court of First Instance. At this stage, the private
respondents as the offended parties filed with another branch of the
Court of First Instance of Misamis Occidental, presided by
respondent Judge, a separate and independent civil action for
damages allegedly suffered by them6
from the reckless driving of the
aforesaid Francisco Abellana. In such complaint, the other
petitioner, Crispin Abellana, as the alleged employer, was included
as defendant. Both of them then sought the dismissal of such action
principally on the ground that there was no reservation for the filing

www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 3/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

thereof in the City Court of Ozamis. It was argued by them that it

was not allowable
7
at the stage where the criminal case was already
on appeal.
Respondent Judge was not persuaded. On April 28, 1967, he
issued the following order: "This is a motion to dismiss this case on
the ground that in Criminal Case No. OZ-342 which was

________________

modify the same. The Congress shall have the power to repeal, alter, or
supplement the rules concerning pleading, practice, and procedure, and the admission
to the practice of law in the Philippines." The present Constitution, in its Article X,
Section 5, paragraph (5), empowers this Court to promulgate "rules concerning
pleading, practice, and procedure in all courts, the admission to the practice of law,
and the integration of the Bar, which, however, may be repealed, altered, or
supplemented by the National Assembly. Such rules shall provide a simplified and
inexpensive procedure for the speedy disposition of cases, shall be uniform for all
courts of the same grade, and shall not diminish, increase, or modify substantive
rights."
5 Petition, pars. 2 and 3.
6 Ibid, par. 4.
7 Ibid, par. 5.

110

110 SUPREME COURT REPORTS ANNOTATED

Abellana vs. Marave

decided by the City Court and appealed to this Court, the offended
parties failed to expressly waive the civil action or reserve their right
to institute it separately in said City Court, as required in Section 1,
Rule 111, Rules of Court. From the Records of Criminal Case No.
OZ-342, it appears that the City Court convicted the accused. On
appeal to this Court, the judgment of the City Court was vacated and
a trial de novo will have to be conducted. This Court has not as yet
begun trying said criminal case. In the meantime, the offended
parties expressly waived in this Court the civil action impliedly
instituted with the criminal action, and reserve their right to institute
a separate action as in fact, they did file. The Court is of the opinion
that at this stage, the offended parties may still waive the civil action
because the judgment of the City Court is vacated and a trial de novo
will have to be had. In view of this waiver and reservation, this
Court would be precluded from judging civil damages against the
accused and in favor of the offended parties. 8
[Wherefore], the
motion to dismiss is hereby denied. * * *." There was a motion for
reconsideration which was denied. Hence this petition.
The only basis of petitioners for the imputation that in the
issuance of the challenged order there was a grave abuse of
www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 4/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

discretion, is their reading of the cited Rules of Court provision to

the effect that upon the institution of a criminal action "the civil
action for recovery of civil liability arising from the offense charge
is impliedly instituted with the criminal action, unless the offended
9
party * * * reserves his right to institute it separately." Such an
interpretation, as noted,
10
ignores the de novo aspect of appealed cases
from city courts. It does likewise, as mentioned, give rise to a
constitutional question to the extent that it could yield a meaning to
a rule of court that may trench on a substantive right. Such an
interpretation is to be rejected. Certiorari, to repeat, clearly does not
lie.
1. In the language of the petition, this is the legal proposition
submitted for the consideration of this Court: "That a separate civil
action can be legally filed and allowed by the court only at the
institution, or the right to file such

______________

8 Ibid, par. 9.
9 Cf. Rules of Court, Section 1 of Rule 111.
10 Cf. Section 7 of Rule 123, Rules of Court.

111

VOL. 57, MAY 29, 1974 111

Abellana vs. Marave

separate civil action reserved or waived, at such institution of 11the

criminal action, and never on appeal to the next higher court." It
admits of no doubt that an independent civil action was filed by
private respondents only at the stage of appeal. Nor was there any
reservation to that effect when the criminal case was instituted in the
city court of Ozamis. Petitioners would then take comfort from the
language of the aforesaid Section 1 of Rule 111 for the unwarranted
conclusion that absent such a reservation, an independent civil
action is barred. In the first place, such an inference does not per se
arise from the wording of the cited rule. It could be looked upon
plausibly as a non-sequitur. Moreover, it is vitiated by the grievous
fault of ignoring what is so explicitly provided in Section 7 of Rule
123: "An appealed case shall be tried in all respects anew in the
Court of First Instance as if it had been originally instituted in that
12
court." Unlike petitioners, respondent Judge was duly mindful of
such a norm. This Court has made clear that its observance in
13
appealed criminal cases is mandatory. In a 1962 decision, People v.
14
Garreon, Justice Barrera, as ponente,
15
could trace such a rule to a
1905 decision, Andres v. Wolfe. Another case cited by him is
16
Crisostomo v. Director of Prisons, where Justice Malcolm
emphasized how deeplyrooted in Anglo-American legal history is
17
www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 5/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057
17
such a rule. In the latest case in point, People v. Jamisola, this
Court, through Justice Dizon, reiterated such a doctrine in these
words: "The rule in this jurisdiction is that upon appeal by the
defendant from a judgment of conviction by the municipal court, the
appealed decision is vacated and the appealed case 'shall be tried in
all respects anew in the court of first instance as if it had been
18
originally instituted in that court.' " So it is in civil

_________________

11 Petition, Ground for Reversal of the Court Order Involved, 4.

12 Cf. Section 7 of Rule 123 (1964).
13 Cf. People v. Jaramilla, 97 Phil. 880 (1955); Escudero v. Lucero, 103 Phil. 672
(1958); People v. Malayao, L-12103, February 28, 1961, 1 SCRA 628; People v.
Carreon, L-17920, May 30, 1962, 5 SCRA 252; People v. Jamisola, L-27332,
November 28,1969, 30 SCRA 555.
14 L-17920, May 30, 1962, 5 SCRA 252.
15 5 Phil. 60.
16 41 Phil. 368 (1921). Cf. People v. Co Hiok, 62 Phil. 501 (1935).
17 L-27332, November 28, 1969, 30 SCRA 555.
18 Ibid, 556-557.

112

112 SUPREME COURT REPORTS ANNOTATED

Abellana vs. Marave

19
cases under Section 9 of Rule 40. Again, there is a host of
20
decisions attesting to its observance. It cannot be said then that
there was an error committed by respondent Judge, much less a
grave abuse of discretion, which is indispensable if this petition
were to prosper.
2. Nor is the above the only ground for rejecting the contention
of petitioners. The restrictive interpretation they would place on the
applicable rule does not only result in its emasculation but also gives
rise to a serious constitutional question. Article 33 of the Civil Code
is quite clear: "In cases of * * * physical injuries, a civil action for
damages, entirely separate and distinct from the criminal action,
may be brought by the injured party. Such civil action shall proceed
independently of the criminal prosecution, and shall require only a
21
preponderance of evidence." That is a substantive right, not to be
frittered away by a construction that could render it nugatory, if
through oversight, the offended parties failed at the initial stage to
seek recovery for damages in a civil suit. As referred to earlier, the
grant of power to this Court, both in the present Constitution and
under the 1935 Charter, does not extend to any diminution, increase
22
or modification of substantive right It is a well-settled doctrine that
a court is
www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 6/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

_________________

19 Section 9 of Rule 40 reads: "A perfected appeal shall operate to vacate the
judgment of the justice of the peace or the municipal court, and the action when duly
docketed in the Court of First Instance shall stand for trial de novo upon its merits in
accordance with the regular procedure in the acourt, as though the same had never
been tried before and had been originally there commenced. If the appeal is
withdrawn, or dismissed for failure to prosecute, the judgment shall be deemed
revived and shall forthwith be remanded to the justice of the peace or municipal court
for execution."
20 Cf. Lichauco v. Guash, 76 Phil. 5 (1946); Torres v. Ocampo, 80 Phil. 36 (1948);
Ricohermoso v. Enriquez and Ricohermoso, 85 Phil. 88 (1949); Evangelista v.
Soriano, 92 Phil. 190 (1952); Vda. de Valdez v. Fariñas, 94 Phil. 850 (1954); Royal
Shirt Factory, Inc. v. Co Bon Tic, 94 Phil. 994 (1954); Acierto v. De Laperal, 107
Phil. 1088 (1960); Singh v. Liberty Insurance Corp., L-16860, July 31, 1963, 8 SCRA
517, Florendo, Sr. v. Buyser, L-24316, Nov. 28, 1967, 21 SCRA 1106; Permanent
Concrete Products, Inc. v. Teodoro, L-29766, Nov 29 1968, 26 SCRA 332. ' '
21 Article 33 includes the other cases of defamation and fraud.
22 Cf. Article X, Section 5, par. 5 of the Constitution and Article VIII, Section 13
of the 1935 Constitution.

113

VOL. 57, MAY 29, 1974 113

Abellana vs. Marave

to avoid construing a statute or legal norm in such a manner as

would give rise to a constitutional doubt. Unfortunately, petitioners,
unlike respondent Judge, appeared to lack awareness of the
undesirable consequence of their submission. Thus is discernible
another insuperable obstacle to the success of this suit.
3. Nor is this all that needs to be said. It is understandable for any
counsel to invoke legal propositions impressed with a certain degree
of plausibility if thereby the interest of his client would be served.
That is though, merely one aspect of the matter. There is this other
consideration. He is not to ignore the basic purpose of a litigation,
which is to assure parties justice according to law. He is not to fall
prey, as admonished by Justice Frankfurter, to the vice of literalness.
The law as an instrument of social control will fail in its function if
through an ingenious construction sought to be fastened on a legal
norm, particularly a procedural rule, there is placed an impediment
to a litigant being given an opportunity of vindicating an alleged
23
right. The commitment of this Court to such a primordial objective
24
has been manifested time and time again.
WHEREFORE, this petition for certiorari is dismissed. Costs
against petitioners.

www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 7/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

     Zaldivar (Chairman), Barredo, Fernandez and Aquino, JJ.,

concur.
          Antonio, J., concurs on the bases of par. nos. 2 & 3 of
opinion.

Petition dismissed.

Notes.—In general, criminal prosecutions absorb civil claims. It

has long been a general rule in the Philippines that, when no civil
action has been instituted by a person injured or offended by act or
neglect of another prior to institution of criminal proceedings against
the latter, and after institution of criminal proceedings, the offended
party fails to reserve his right to maintain a civil action, that right is
merged or

_________________

23 Cf. Avila v. Gimenez, L-24615, February 28, 1969, 27 SCRA 321.

24 Cf. Aguinaldo v. Aguinaldo, L-30362, November 26, 1970, 36 SCRA 137.

114

114 SUPREME COURT REPORTS ANNOTATED

People vs. Baylon

"absorbed" in the criminal action. Ramcar, Inc. v. De Leon, 78 Phil.

449.
It is highly unjust for a provincial fiscal or a chief of police to
institute a criminal prosecution precipitately without due regard for
the rights of the offended party, and particularly without regard to
the fact that the party offended is so seriously injured as not to be in
a condition to reserve the right to maintain a civil action for damages
arising out of the criminal conduct of the defendant. San Jose v. del
Mundo, L-4450, Apr. 28, 1952.
However, civil liability arising from criminal acts under the Penal
Code is to be distinguished from a civil right to recover damages
based on the principle of culpa aquiliana. Ibañez v. North Negros
Sugar Co., L-6790, March 28, 1955.

LEGAL RESEARCH SERVICE

See SCRA Quick Index-Digest, Volume One, page 14 on Actions;

and page 615 on Criminal Procedure.
See also SCRA Quick Index-Digest, Volume Two, page 1928 on
Statutory Construction.
Padilla, A., Criminal Procedure Annotated, 1971 Edition.
Jacinto, G. V., Criminal Procedure, 1965 Edition.
Moran, M. V., Comments on the Rules of Court, vol. 4, 1970
Edition.
www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 8/9
11/9/2019 SUPREME COURT REPORTS ANNOTATED VOLUME 057

———o0o———

© Copyright 2019 Central Book Supply, Inc. All rights reserved.

www.central.com.ph/sfsreader/session/0000016e4fcb56529fae3810003600fb002c009e/t/?o=False 9/9