EULOGIO R. LERUM AND G. VIOLA FERNANDO, PETITIONERS AND APPELLANTS; THE PEOPLE OF THE PHILIPPINES, NECESSARY PARTY, VS. ROMAN A. CRUZ, ELENA MUÑOZ AND NELLO Y. ROA, RESPONDENTS …

This is an appeal from an order of the Court of First Instance of
Rizal (Quezon City) dismissing the petition for declaratory relief
filed by attorneys Eulogio R. Lerum and G. Viola Fernando as private
prosecutors in behalf of the People of the Philippines for the purpose
of testing the sufficiency and probative value of the testimony of
former Judge Roman A. Cruz to prove a decree of divorce issued by him
while a judge of First Instance of Manila sometime in 1944.

It appears that a case for bigamy was filed against Nello Y. Roa in
the Court of First Instance of Rizal (Case No. 962). In the course of
the trial held in June 16 and 30, 1948, former Judge Roman A. Cruz was
placed on the witness stand by the defendant to prove that his wife
Elena Muñoz has already secured a decree of divorce against him in July
1944. The prosecution objected to this move of the defendant, but the
objection was overruled, and so the prosecution filed a petition for a
writ of prohibition with this Court praying that the respondent judge be
enjoined from allowing the defendant to prove the alleged decree of
divorce by oral evidence (G. R. No. L-2340). The petition was dismissed
for lack of merit. Judge Roman Cruz then was allowed to testify, and
his testimony reads as follows:

“Sr. Guanlao:

“P Conoce Ud. personalmente a Elena Munoz?—R Si, señor.

“P Conoce Ud. personalmente a Nello Roa?

*           *           *           *           *           *           *

“P Porque dice Ud. que conoce a Elena Munoz?—R La conozco porque fue
demandante en una causa de divorcio que se habia ventilado en una de
las salas que yo presidia entonces en el Juzgado de Primera Instancia
de Manila durante mi incumbencla en 1944.

“Sr. Viola Fernando:

“Pido Su Señoria el descarte de esta parte del testimonio del- testigo por ser incompetente y, ademas, es una conclusion.

“Juzgado:

“El testigo esta declarando sobre hechos de su conocimiento propio.

“Sr. Viola Fernando:

“Es una conclusion.

“Juzgado:

“El testimonio del Juez Cruz no puede considerarse como una prueba
secundaria, sino mas bien que vendria a ser como una prueba primaria o
principal, cuyo expediente surgio a rais de sus actuaciones oficiales
como Juez. (Steno. Notes, Transcript, pp. 4-7).

*           *           *           *           *           *           *

“Sr. Guanlao:

“P De su propio eonocimiento y segun su mejor recuerdo, se tramito ante Ud. la causa de referenda?

*           *           *           *           *           *           *

“Juzgado:

“Se le pregunta si recuerda. * * *

“Juzgado:

“Eso incumbe al Juzgado. Puede contestar.

“R Si, señor. (Steno. Transcript Notes, p. 6.)

*           *           *           *           *           *           *

“Juzgado:

“Puede contestar.

“Testigo:

“Si, señor, Se ha tramitado ese asunto de divorcio durante mi
incumbencia en 1944, cuando presidia entonces una de las salas de
Juzgado de Primera Instancia de Manila.

“P. Y cual fue el
resultado de ese asunto de divorcio si Ud. recuerda?—R Se concedio el
divorcio solicitado por la entonces demandante.

“P Sabe Ud. se el demandado apelo de esa decision?—R No podia haber apelado porque era un divorcio concedido mediante rebeldia.

“P
Pero Ud. no esta seguro si el demandado apelo o no?—R Que yo sepa, ni
sequiera peticion de reconsideracion se presento, ni que se hay dado
cureo a alguna apelacion. (Steno. Notes, Transcript, pp. 13-14, hereto
attached as Exhibit “A”).” (Copied from G.R. No. L-2783, pp. 23-25,
record on appeal).

The prosecution moved for the striking out of the above testimony
of Judge Cruz, and when the motion was denied, the prosecution again
brought the case to this Court through certiorari (G.R. No. L-2483),
and again the petition was denied on the ground that the respondent
judge had power and authority to rule on the question raised therein.
After the steps taken by the prosecution to foil the attempt to prove
the alleged decree of divorce by oral evidence proved futile, the
private prosecution filed the present petition for declaratory relief.

It also appears that the petition was at first filed by City
Attorney Jose P. Fernandez, and by attorneys Eulogio R. Lerum and G.
Viola Fernando as private prosecutors in the bigamy case No. 962, but
later, upon motion filed by City Attorney Fernandez, his name was
stricken out from the pleadings, and so an amended petition was filed
wherein attorneys Lerum and Viola Fernando appeared as the only
petitioners representing the People of the Philippines. It finally
appears that attorneys Lerum and Viola Fernando made an attempt to have
the Solicitor General appear as counsel, but this attempt was again
ruled out on the ground that under the law the Solicitor General can
only be required to intervene when the validity of a statute is
involved.

While the petitioners have assigned in their brief seven errors
which are alleged to have been committed by the lower court, we believe
that the issues raised can be boiled down into two, to wit, (1) whether
petitioners have the necessary personality and interest to file the
petition under consideration; and (2) whether the subject matter of the
petition is among those that can be determined by way of declaratory
relief under Rule 66 of the Rules of Court.

1. The incident giving rise to the petition for declaratory
   relief arose in a criminal case for bigamy instituted against one Nello
   Y. Roa. The information was filed by City Attorney Jose P. Fernandez as
   required by the Rules of Court, and attorneys Eulogio R. Lerum and G.
   Viola Fernando appeared as private prosecutors in behalf of the
   offended party. The incident concerns the presentation of the oral
   testimony of former Judge Roman A. Cruz to prove a decree of divorce
   issued by him as Judge of First Instance of Manila in an effort to
   bring about the. acquittal of the defendant. The interested party,
   therefore, in testing the sufficiency or probative value of the
   aforesaid testimony is the People of the Philippines. In fact it is the
   City Attorney who filed the two certiorari cases with this court in a
   vain attempt to get a ruling on the matter. This being the case, the
   City Attorney should be the one to ask for the declaratory relief if it
   is desired to have said matter tested in court and if and when this
   step is feasible under the law. It appears, however, that City Attorney
   Jose F. Fernandez has refused to join the petitioners in filing the
   herein petition for declaratory relief as shown by his attitude in
   asking that his name be stricken out from the pleadings. This attitude
   is indicative that the government has no interest in prosecuting the
   petition, and inasmuch as all criminal actions can only be prosecuted
   under the direction and control of the fiscal and for that matter he is
   the only official who can represent the People of the Philippines (sec.
   4, Rule 106, of the Rules of Court; Herrero et al. vs. Diaz,
   42 Off. Oaz., 1166), it is evident that the petitioners herein, who as
   private prosecutors can only intervene subject to the control of the
   City Attorney (Herrero et al. vs. Diaz, id.), are not the proper parties to file the petition under consideration.

2. Granting for the sake of argument that the petitioners herein can be
   considered as parties in interest within the meaning of the statute,
   the next question to determine is whether the subject matter which they
   want to be tested is among those mentioned in section 1, rule 66, of
   the Rules of Court.

Under this rule, only a person who is interested “under a deed,
will, contract or other written instrument, and whose rights are
affected by a statute or ordinance, may bring an action to determine
any question of construction or validity arising under the instrument
or statute and for a declaration of his rights or duties thereunder.”
This means that the subject matter must refer to a deed, will, contract
or other written instrument, or to a statute or ordinance, to warrant
declaratory relief. Any other matter not mentioned therein is deemed
excluded. This is under the principle of expressio unius est exclusslo alterius.

Now, does the subject matter under consideration come within the
import of the rule? The answer cannot but be in the “negative, for it
does not refer to any written instrument, statute or.ordinance. It
merely refers to the sufficiency or probative value of an oral evidence
concerning a decree of divorce issued by a former judge, which the
court trying the bigamy case has ample power and authority to pass
upon. This is not the opportune moment to look into the correctness of
the ruling of the court in said bigamy case allowing the presentation
of oral evidence to prove a decree of divorce under the circumstances
at present obtaining, for the bigamy case is still pending
determination. This will be determined in due time when properly
presented before this Court. For the purposes of this appeal, it
suffices for this Court to declare that the subject matter of the
petition does not warrant the granting of declaratory relief within the
meaning of said Rule 66.

Wherefore, the order appealed from is affirmed, without pronouncement as to costs.

Moran, C.J., Paras, Feria, Pablo, Bengzon, Padilla, Tuason, Montemayor, Reyes, and Jugo, JJ., concur.