G.R. No. L-24946. January 18, 1968
MARTINIANO P. VIVO, IN HIS CAPACITY AS (ACTING) COMMISSIONER OF IMMIGRATION, PETITIONER, VS. HON. GAUDENCIO CLORIBEL, IN HIS CAPACITY AS JUDGE OF THE COURT OF FIRST INSTANCE OF …
BENGZON, J.P., J.:
Private respondents Tiu Siok Tin and her two minor children Lim I Chi and Lim U Te
arrived for the first time in the Philippines
on December 13, 1960 with
an initial authorized stay of three (3) months as non-immigrants temporary
visitors. The following day, December
14, respondent Tiu Siok
Tin in her own behalf and that of her two minor children, applied for admission[1]
as temporary visitors with the Immigration Bureau stating, inter alia, that Lim Siong is
her husband; that she wanted to visit him here; that her stay will be three
months; that she has four children, two of whom are with her; that they have
never been in the Philippines before and that their stay is guaranteed by a
P24,000 cash bond posted by her husband.
Later, on repeated requests, respondents’ period of stay was
extended up to December 12, 1961.[2]
On November 27, 1961, respondents requested[3]
the Secretaries of Foreign Affairs and of Justice, respectively, to change
their status as temporary visitors to that of special non-immigrants under Sec.
47(a-2) of the Philippine Immigration Act of 1940, as amended, and to extend
their authorized stay until the oath-taking of their husband and father Lim Siong whose petition for naturalization had been granted on
October 14, 1961.[4]
This was favorably acted upon by the Foreign Affairs Secretary on November 28, 1961, approving
respondents’ change of status as special non-immigrants for a period of stay
up to October 14, 1963. The Secretary of Justice likewise, upon due indorsement, approved the extension of respondents’ stay up
to October 14, 1963 provided that the latter secure re-entry permits to Hongkong and maintain their cash bond with the Bureau of
Immigration.[5]
Despite the foregoing, respondents, on December 12, 1961, still made another request to
the Commissioner of Immigration for an indefinite extension of their
stay in the country. The Commissioner
granted extension, not indefinitely as prayed for, but only up to September 12, 1962.[6]
On August 29, 1962,
the Commissioner of Immigration under the new administration, abrogated all
extensions of stay of temporary visitors who arrived in 1961, thru Circular No.
V-101, duly approved by the Secretary of Justice. On August
31, 1962, the Commissioner wrote Lim Siong,
respondents’ husband/father who was also their guarantor, requiring respondents
to leave the country on or before September
12, 1962.[7]
On said date, however, respondents, instead of departing, filed a
petition for prohibition with preliminary injunction with the Court of First
Instance of Manila to prevent their arrest and deportation.[8]
The court, Judge Cloribel presiding, on September 13, 1962 gave due course to
the petition, required the Commissioner of Immigration to answer and issued
preliminary injunction upon a P3,000 bond.
The Commissioner filed his answer with a motion to dissolve the
injunction on September 24, 1962. On November
17, 1962, Judge Cloribel denied the
motion to dissolve the injunction.
On May 18, 1964,
petitioner Commissioner of Immigration moved for preliminary hearing on his
special and affirmative defenses.
Respondents counter-moved with a request to admit supplemental pleadings
alleging that on February 24, 1964, their husband/father took his oath as a
Filipino[9]
and consequently, respondents minor children became Filipinos while respondent
wife acquired a vested right to prove that she could be naturalized.
The lower court, on June
25, 1964, admitted the supplemental pleadings over petitioner’s
opposition. A subsequent motion to
reconsider failed.
On July 16, 1965, petitioner Commissioner moved for the outright
dismissal of the case or at least the dissolution of the preliminary injunction
issued upon the authority of Vivo v. Arca,
L-21728, December 27, 1963, which ruled, principally, that the refusal of the
trial court to dissolve a preliminary injunction after the expiration of the
alien visitors’ authorized stay in the country is contrary to law and
constitutes grave abuse of discretion.
Upon respondents’ opposition, Judge Cloribel
denied the motion to dismiss for being without merit.
On September 7, 1965, the Commissioner on Immigration instituted
the present petition for certiorari
and prohibition with preliminary injunction, questioning the orders of the
lower court dated September 13, 1962 giving due course to the petition filed
therein and issuing the writ of preliminary injunction and the order of July
25, 1965 denying petitioner’s motion to dismiss or dissolve preliminary
injunction.
We gave due course to the petition, required respondents to
answer, which they did, and issued the preliminary injunction prayed for.
For resolution now are the following questions:
1.
Did the lower court gravely abuse its discretion
in denying petitioner’s motion to dismiss or to dissolve the injunction
anchored on the precedent-setting decision of Vivo v. Arca,
supra?
2.
Was petitioner’s failure to file a motion for
reconsideration a fatal defect?
3.
Would certiorari
and prohibition be the proper remedy to question a denial of a motion to
dismiss?
The present case is akin to that of Vivo v. Cloribel, L-23239, November 23, 1966, which arose out of practically
identical circumstances. There,
respondents alien wife and her two minor children arrived for the first time
here in 1961 as temporary visitors and were allowed by the Secretaries of
Justice and Foreign Affairs to stay until June 24, 1963, which would also be the tentative
date of oath taking of their husband/father whose naturalization had been
granted. The Immigration Commissioner
however limited their period of stay up to October 17, 1962.
Subsequently, the Commissioner, thru Circular No. V-101, required them
to leave on September 18, 1962
but the order was temporarily enjoined by Judge Cloribel
in a prohibition case filed by respondents.
On January 7, 1964,
the Commissioner moved to dissolve the preliminary injunction on the ground
that respondents’ authorized stay had incontestably expired on June 24, 1963. The lower court denied the motion. The Commissioner immediately filed petition
for certiorari and prohibition with
this Court, and there We held:
1.
That the refusal of the lower court to dissolve
the preliminary injunction even after the terminus of respondents’ longest
authorized stay here was against the law and constitutes grave abuse of
discretion and excess of jurisdiction, as held in Vivo v. Arca, supra.
Judge Cloribel should have taken note of said
precedent-setting case promulgated even before the motion to dissolve the writ
was filed and denied;
2.
That the naturalization of respondent wife’s
husband, even if conceded, would not automatically make her a Filipino who can
not be deported;
3.
That respondents’ alien children, after the
lapse of their authorized stay could no longer be said to have “lawful
residence” or be dwelling here.
Also, the requirement that they have to be schooled here refers to the
period before their father files the petition for naturalization;
4.
That appeal is not the adequate remedy. Pending appeal, the aliens would be able to
unduly prolong their illegal stay here in violation of the country’s immigration
laws and policies;
5.
That a motion to reconsider was unnecessary and
would involve more delay which would further prejudice government interest; and
6.
That the prohibition case before the trial court
has become moot, because of the expiration of the alien visitors’
longest authorized stay. The
naturalization of their husband/father would not improve their position. Hence, the lower court’s only jurisdiction would
be to dismiss the main case.
In the present case before Us, respondents’ authorized stay here
indubitably expired after October 14, 1963 thereby rendering the prohibition
case in the lower court moot and academic; thus Judge, Cloribel
plainly ignored Our ruling in Viva v. Arca, supra,
and, without cause, sanctioned the open and continuing violation of the
country’s immigration laws and policies by allowing respondents to unduly
prolong their illegal stay here, all contrary to law and in grave abuse of
discretion; and also in view of the further delay that would ensue in the
proceedings, clearly prejudicial to the interest of the government, appeal
would not be an adequate remedy and a motion for reconsideration could be
dispensed with.
WHEREFORE, the petition, being meritorious, is ranted;
the assailed orders of September 13, 1962 and the order of July 25, 1965 are
annulled and set aside; and respondent Judge Cloribel
of the Court of First Instance of Manila or whoever has taken or will take his
place to preside in said court is hereby permanently restrained from further
taking cognizance and assuming jurisdiction over Civil Case No. 51574, except
to dismiss it for having become moot. No
costs.
SO ORDERED.
Concepcion, C.J., Reyes, J.B.L., Dizon, Zaldivar, Sanchez,
Angeles, and Fernando, JJ., concur.
Ruiz Castro, J., in the result.
Makalintal, J., did not take part.
[1]
Annex A, Petition.
[2]
Annexes B, B-1 & B-2, Petition.
[3]
Annex C, Petition.
[4]
The naturalization case was also in the sala of Judge
Cloribel (Rollo,
pp. 173-180).
[5]
Annexes D & E, Petition.
[6]
Annex F, Petition.
[7]
Annexes G & G-1, Petition.
[8]
Civil Case No. 51574.
[9]
There is, incidentally, a pending motion before the lower court to set aside
the entire naturalization proceeding and for cancellation of the certificate of
naturalization subsequently issued therein.