G.R. No.

127240 March 27, 2000

ONG CHIA, petitioner,

vs.
REPUBLIC OF THE PHILIPPINES and THE COURT OF APPEALS, respondents.

MENDOZA, J.:

This is a petition for review of the decision1 of the Court of Appeals reversing the decision of the
Regional Trial Court, Branch 24, Koronadal, South Cotabato2 admitting petitioner Ong Chia to Philippine
citizenship.

The facts are as follows:

Petitioner was born on January 1, 1923 in Amoy, China. In 1932, as a nine-year old boy, he arrived at the
port of Manila on board the vessel "Angking." Since then, he has stayed in the Philippines where he
found employment and eventually started his own business, married a Filipina, with whom he had four
children. On July 4, 1989, at the age of 66, he filed a verified petition to be admitted as a Filipino
citizen under C.A. No. 473, otherwise known as the Revised Naturalization Law, as amended. Petitioner,
after stating his qualifications as required in §2, and lack of the disqualifications enumerated in §3 of the
law, stated —

17. That he has heretofore made (a) petition for citizenship under the provisions of Letter of
Instruction No. 270 with the Special Committee on Naturalization, Office of the Solicitor General,
Manila, docketed as SCN Case No. 031776, but the same was not acted upon owing to the fact
that the said Special Committee on Naturalization was not reconstituted after the February,
1986 revolution such that processing of petitions for naturalization by administrative process
was suspended;

During the hearings, petitioner testified as to his qualifications and presented three witnesses to
corroborate his testimony. So impressed was Prosecutor Isaac Alvero V. Moran with the testimony of
petitioner that, upon being asked by the court whether the State intended to present any witness
present any witness against him, he remarked:

Actually, Your Honor, with the testimony of the petitioner himself which is rather surprising, in
the sense that he seems to be well-versed with the major portion of the history of the
Philippines, so, on our part, we are convinced, Your Honor Please, that petitioner really deserves
to be admitted as a citizen of the Philippines. And for this reason, we do not wish to present any
evidence to counteract or refute the testimony of the witnesses for the petitioner, as well as the
petitioner himself.3

Accordingly, on August 25, 1999, the trial court granted the petition and admitted petitioner to
Philippine citizenship. The State, however, through the Office of the Solicitor General, appealed all the
names by which he is or had been known; (2) failed to state all his former placer of residence in violation
of C.A. No. 473, §7; (3) failed to conduct himself in a proper and irreproachable manner during his entire
stay in the Philippines, in violation of §2; (4) has no known lucrative trade or occupation and his previous
incomes have been insufficient or misdeclared, also in contravention of §2; and (5) failed to support his
petition with the appropriate documentary evidence.4

Annexed to the State's appellant's brief was a copy of a 1977 petition for naturalization filed by
petitioner with the Special Committee on Naturalization in SCN Case No. 031767,5 in which petitioner
stated that in addition to his name of "Ong Chia," he had likewise been known since childhood as
"Loreto Chia Ong." As petitioner, however, failed to state this other name in his 1989 petition for
naturalization, it was contended that his petition must fail.6 The state also annexed income tax
returns7 allegedly filed by petitioner from 1973 to 1977 to show that his net income could hardly
support himself and his family. To prove that petitioner failed to conduct himself in a proper and
irreproachable manner during his stay in the Philippines, the State contended that, although petitioner
claimed that he and Ramona Villaruel had been married twice, once before a judge in 1953, and then

1
again in church in 1977, petitioner actually lived with his wife without the benefit of marriage from 1953
until they were married in 1977. It was alleged that petitioner failed to present his 1953 marriage
contract, if there be any. The State also annexed a copy of petitioner's 1977 marriage contract 8 and a
Joint-Affidavit9 executed by petitioner and his wife. These documents show that when petitioner
married Ramona Villaruel on February 23, 1977, no marriage license had been required in accordance
with Art. 76 of the Civil Code because petitioner and Ramona Villaruel had been living together as
husband and wife since 1953 without the benefit of marriage. This, according to the State, belies his
claim that when he started living with his wife in 1953, they had already been married.

The State also argued that, as shown by petitioner's Immigrant Certificate of Residence, 10 petitioner
resided at "J.M. Basa Street, Iloilo," but he did not include said address in the petition.

On November 15, 1996, the Court of Appeals rendered its decision which, as already noted, reversed the
trial court and denied petitioner's application for naturalization. It ruled that due to the importance
naturalization cases, the State is not precluded from raising questions not presented in the lower court
and brought up for the first time on appeal. 11 The appellate court held:

As correctly observed by the Office of the Solicitor General, petitioner Ong Chia failed to state in
this present petition for naturalization his other name, "LORETO CHIA ONG," which name
appeared in his previous application under Letter of Instruction No. 270. Names and
pseudonyms must be stated in the petition for naturalization and failure to include the same
militates against a decision in his favor. . . This is a mandatory requirement to allow those
persons who know (petitioner) by those other names to come forward and inform the
authorities of any legal objection which might adversely affect his application for citizenship.

Furthermore, Ong Chia failed to disclose in his petition for naturalization that he formerly
resided in "J.M. Basa St., Iloilo" and "Alimodian, Iloilo." Section 7 of the Revised Naturalization
Law requires the applicant to state in his petition "his present and former places of residence."
This requirement is mandatory and failure of the petitioner to comply with it is fatal to the
petition. As explained by the Court, the reason for the provision is to give the public, as well as
the investigating agencies of the government, upon the publication of the petition, an
opportunity to be informed thereof and voice their objections against the petitioner. By failing
to comply with this provision, the petitioner is depriving the public and said agencies of such
opportunity, thus defeating the purpose of the law. . .

Ong Chia had not also conducted himself in a proper and irreproachable manner when he lived-
in with his wife for several years, and sired four children out of wedlock. It has been the
consistent ruling that the "applicant's 8-year cohabitation with his wife without the benefit of
clergy and begetting by her three children out of wedlock is a conduct far from being proper and
irreproachable as required by the Revised Naturalization Law", and therefore disqualifies him
from becoming a citizen of the Philippines by naturalization . . .

Lastly, petitioner Ong Chia's alleged annual income in 1961 of P5,000.00, exclusive of bonuses,
commissions and allowances, is not lucrative income. His failure to file an income tax return
"because he is not liable for income tax yet" confirms that his income is low. . . "It is not only
that the person having the employment gets enough for his ordinary necessities in life. It must
be shown that the employment gives one an income such that there is an appreciable margin of
his income over expenses as to be able to provide for an adequate support in the event of
unemployment, sickness, or disability to work and thus avoid one's becoming the object of
charity or public charge." . . . Now that they are in their old age, petitioner Ong Chia and his wife
are living on the allowance given to them by their children. The monthly pension given by the
elder children of the applicant cannot be added to his income to make it lucrative because like
bonuses, commissions and allowances, said pensions are contingent, speculative and
precarious. . .

Hence, this petition based on the following assignment of errors:

2
 I. THE COURT OF APPEALS GRAVELY ABUSED ITS DISCRETION IN RULING THAT IN
NATURALIZATION CASES, THE APPELLATE COURT CAN DENY AN APPLICATION FOR PHILIPPINE
CITIZENSHIP ON THE BASIS OF DOCUMENTS NOT PRESENTED BEFORE THE TRIAL COURT AND
NOT FORMING PART OF THE RECORDS OF THE CASE.

II. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER HAS BEEN KNOWN BY SOME
OTHER NAME NOT STATED IN HIS PETITION IS NOT SUPPORTED BY THE EVIDENCE ON RECORD.

III. CONTRARY TO THE FINDING OF THE COURT OF APPEALS, THE PETITIONER STATED IN HIS
PETITION AND ITS ANNEXES HIS PRESENT AND FORMER PLACES OF RESIDENCE.

IV. THE FINDING OF THE COURT OF APPEALS THAT THE PETITIONER FAILED TO CONDUCT
HIMSELF IN A PROPER AND IRREPROACHABLE MANNER IS NOT SUPPORTED BY THE EVIDENCE
ON RECORD.

Petitioner's principal contention is that the appellate court erred in considering the documents which
had merely been annexed by the State to its appellant's brief and, on the basis of which, justified the
reversal of the trial court's decision. Not having been presented and formally offered as evidence, they
are mere "scrap(s) of paper devoid of any evidentiary value," 12 so it was argued, because under Rule
132, §34 of the Revised Rules on Evidence, the court shall consider no evidence which has not been
formally offered.

The contention has no merit. Petitioner failed to note Rule 143 13 of the Rules of Court which provides
that —

These rules shall not apply to land registration, cadastral and election
cases, naturalization and insolvency proceedings, and other cases not herein provided
for, except by analogy or in a suppletory character and whenever practicable and convenient.
(Emphasis added).

Prescinding from the above, the rule on formal offer of evidence (Rule 132, §34) now being invoked by
petitioner is clearly not applicable to the present case involving a petition for naturalization. The only
instance when said rules may be applied by analogy or suppletorily in such cases is when it is
"practicable and convenient." That is not the case here, since reliance upon the documents presented by
the State for the first time on appeal, in fact, appears to be the more practical and convenient course of
action considering that decisions in naturalization proceedings are not covered by the rule on res
judicata. 14 Consequently, a final favorable judgment does not preclude the State from later on moving
for a revocation of the grant of naturalization on the basis of the same documents.

Petitioner claims that as a result of the failure of the State to present and formally offer its documentary
evidence before the trial court, he was denied the right to object against their authenticity, effectively
depriving him of his fundamental right to procedural due process. 15 We are not persuaded. Indeed, the
reason for the rule prohibiting the admission of evidence which has not been formally offered is to
afford the opposite party the chance to object to their admissibility. 16 Petitioner cannot claim that he
was deprived of the right to object to the authenticity of the documents submitted to the appellate
court by the State. He could have included his objections, as he, in fact, did, in the brief he filed with the
Court of Appeals. thus:

The authenticity of the alleged petition for naturalization (SCN Case No. 031767) which was
supposedly filed by Ong Chia under LOI 270 has not been established. In fact, the case number
of the alleged petition for naturalization. . . is 031767 while the case number of the petition
actually filed by the appellee is 031776. Thus, said document is totally unreliable and should not
be considered by the Honorable Court in resolving the instant appeal. 17

Indeed, the objection is flimsy as the alleged discrepancy is trivial, and, at most, can be accounted for as
a typographical error on the part of petitioner himself. That "SCN Case No. 031767," a copy of which was
annexed to the petition, is the correct case number is confirmed by the Evaluation Sheet 18 of the Special

3
Committee on Naturalization which was also docketed as "SCN Case No. 031767." Other than this,
petitioner offered no evidence to disprove the authenticity of the documents presented by the State.

Furthermore, the Court notes that these documents — namely, the petition in SCN Case No. 031767,
petitioner's marriage contract, the joint affidavit executed by him and his wife, and petitioner's income
tax returns — are all public documents. As such, they have been executed under oath. They are thus
reliable. Since petitioner failed to make a satisfactory showing of any flaw or irregularity that may cast
doubt on the authenticity of these documents, it is our conclusion that the appellate court did not err in
relying upon them.

One last point. The above discussion would have been enough to dispose of this case, but to settle all
the issues raised, we shall briefly discuss the effect of petitioner's failure to include the address "J.M.
Basa St., Iloilo" in his petition, in accordance with §7, C.A. No. 473. This address appears on petitioner's
Immigrant Certificate of Residence, a document which forms part of the records as Annex A of his 1989
petition for naturalization. Petitioner admits that he failed to mention said address in his petition, but
argues that since the Immigrant Certificate of Residence containing it had been fully published, 19 with
the petition and the other annexes, such publication constitutes substantial compliance with §7. 20 This
is allegedly because the publication effectively satisfied the objective sought to be achieved by such
requirement, i.e., to give investigating agencies of the government the opportunity to check on the
background of the applicant and prevent suppression of information regarding any possible misbehavior
on his part in any community where he may have lived at one time or another. 21 It is settled, however,
that naturalization laws should be rigidly enforced and strictly construed in favor of the government and
against the applicant. 22 As noted by the State, C.A. No. 473, §7 clearly provides that the applicant for
naturalization shall set forth in the petition his present and former places of residence. 23 This provision
and the rule of strict application of the law in naturalization cases defeat petitioner's argument of
"substantial compliance" with the requirement under the Revised Naturalization Law. On this ground
alone, the instant petition ought to be denied.1âwphi1.nêt

WHEREFORE, the decision of the Court of Appeals is AFFIRMED and the instant petition is hereby
DENIED.

SO ORDERED.

Bellosillo, Quisumbing, Buena and De Leon, Jr., JJ., concur.

G.R. No. 129296 September 25, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ABE VALDEZ y DELA CRUZ, accused-appellant.

DECISION

QUISUMBING, J.:

For automatic review is the decision1 promulgated on February 18, 1997, by the Regional Trial Court of
Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105. It found appellant Abe Valdez y Dela
Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No.
6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by lethal injection.

In an Information dated September 26, 1996, appellant was charged as follows:"That on or about
September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of Villaverde, Province of Nueva
Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who
was caught in flagrante delicto and without authority of law, did then and there wilfully (sic), unlawfully
and feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known as Indian
Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic) manufactured or derived, to the
damage and prejudice of the government of the Republic of the Philippines.

4
"That the property where the said seven (7) fully grown marijuana plants were planted, cultivated and
cultured shall be confiscated and escheated in favor of the government.

"CONTRARY TO LAW."2

On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty to
the charge. Trial on the merits then ensued.

The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of Villaverde,
Nueva Vizcaya. He testified that at around 10:15 a.m. of September 24, 1996, he received a tip from an
unnamed informer about the presence of a marijuana plantation, allegedly owned by appellant at Sitio
Bulan, Ibung, Villaverde, Nueva Vizcaya.3 The prohibited plants were allegedly planted close to
appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then
formed a reaction team from his operatives to verify the report. The team was composed of SPO3
Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2
Alfelmer I. Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana plants
and arrest the cultivator of same."4

At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their informer,
left for the site where the marijuana plants were allegedly being grown. After a three-hour, uphill trek
from the nearest barangay road, the police operatives arrived at the place pinpointed by their informant.
The police found appellant alone in his nipa hut. They, then, proceeded to look around the area where
appellant had his kaingin and saw seven (7) five-foot high, flowering marijuana plants in two rows,
approximately 25 meters from appellant's hut.5 PO2 Balut asked appellant who owned the prohibited
plants and, according to Balut, the latter admitted that they were his.6 The police uprooted the seven
marijuana plants, which weighed 2.194 kilograms.7 The police took photos of appellant standing beside
the cannabis plants.8 Appellant was then arrested. One of the plants, weighing 1.090 kilograms, was sent
to the Philippine National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis.9 Inspector
Prevy Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic examination
of said plant, she found cystolitic hairs containing calcium carbonate, a positive indication for
marijuana.10 She next conducted a chemical examination, the results of which confirmed her initial
impressions. She found as follows:

"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana plant placed inside a
white sack with markings.

xxx

"FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE result to
the test for Marijuana, a prohibited drug."11

The prosecution also presented a certification from the Department of Environment and Natural
Resources that the land cultivated by appellant, on which the growing marijuana plants were found, was
Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area in Villaverde,
Nueva Vizcaya.12 This lot was part of the public domain. Appellant was acknowledged in the certification
as the occupant of the lot, but no Certificate of Stewardship had yet been issued in his favor.13

As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M.,
September 25, 1996, he was weeding his vegetable farm in Sitio Bulan when he was called by a person
whose identity he does not know. He was asked to go with the latter to "see something."14 This
unknown person then brought appellant to the place where the marijuana plants were found,
approximately 100 meters away from his nipa hut.15 Five armed policemen were present and they made
him stand in front of the hemp plants. He was then asked if he knew anything about the marijuana
growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at him and told him
to admit ownership of the plants.16 Appellant was so nervous and afraid that he admitted owning the
marijuana.17

5
The police then took a photo of him standing in front of one of the marijuana plants. He was then made
to uproot five of the cannabis plants, and bring them to his hut, where another photo was taken of him
standing next to a bundle of uprooted marijuana plants.18 The police team then brought him to the
police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay
Sawmill, accompanied the police officers. Pascua, who bore a grudge against him, because of his refusal
to participate in the former's illegal logging activities, threatened him to admit owning the marijuana,
otherwise he would "be put in a bad situation."19 At the police headquarters, appellant reiterated that
he knew nothing about the marijuana plants seized by the police.20

On cross-examination, appellant declared that there were ten other houses around the vicinity of
his kaingin, the nearest house being 100 meters away.21 The latter house belonged to one Carlito (Lito)
Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot where the
marijuana plants were found was located between his house and Carlito Pascua's.22

The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut
appellant's claim that the marijuana plants were not planted in the lot he was cultivating.23 Tipay
presented a sketch he made,24 which showed the location of marijuana plants in relation to the old and
new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana plot was
located 40 meters away from the old hut of Valdez and 250 meters distant from the hut of Carlito
Pascua.25 Tipay admitted on cross-examination that no surveyor accompanied him when he made the
measurements.26 He further stated that his basis for claiming that appellant was the owner or planter of
the seized plants was the information given him by the police informer and the proximity of appellant's
hut to the location of said plants.27

Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and
ownership of marijuana plants as follows:

"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana plants
punishable under section 9 of the Dangerous Drugs Act of 1972, as amended, accused is hereby
sentenced to death by lethal injection. Costs against the accused.

"SO ORDERED."28

Appellant assigns the following errors for our consideration:

THE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7) MARIJUANA
PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL SEARCH.

II

THE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF SECTION 9,

REPUBLIC ACT NO. 6425 DESPITE THE INADMISSIBILITY OF THE CORPUS DELICTI AND THE
FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

III

THE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON
APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE THAT THE LAND WHERE THE
MARIJUANA PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION THAT INDEED
APPELLANT PLANTED THE SUBJECT MARIJUANA.29

Simply stated, the issues are:

(1) Was the search and seizure of the marijuana plants in the present case lawful?

(2) Were the seized plants admissible in evidence against the accused?

6
 (3) Has the prosecution proved appellant's guilt beyond reasonable doubt?

(4) Is the sentence of death by lethal injection correct?

The first and second issues will be jointly discussed because they are interrelated.

Appellant contends that there was unlawful search. First, the records show that the law enforcers had
more than ample time to secure a search warrant. Second, that the marijuana plants were found in an
unfenced lot does not remove appellant from the mantle of protection against unreasonable searches
and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898,
88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable government intrusion
protects people, not places.

For the appellee, the Office of the Solicitor General argues that the records clearly show that there was
no search made by the police team, in the first place. The OSG points out that the marijuana plants in
question were grown in an unfenced lot and as each grew about five (5) feet tall, they were visible from
afar, and were, in fact, immediately spotted by the police officers when they reached the site. The
seized marijuana plants were, thus, in plain view of the police officers. The instant case must, therefore,
be treated as a warrantless lawful search under the "plain view" doctrine.

The court a quo upheld the validity of the search and confiscation made by the police team on the
finding that:

"...It seems there was no need for any search warrant. The policemen went to the plantation site merely
to make a verification. When they found the said plants, it was too much to expect them to apply for a
search warrant. In view of the remoteness of the plantation site (they had to walk for six hours back and
forth) and the dangers lurking in the area if they stayed overnight, they had a valid reason to confiscate
the said plants upon discovery without any search warrant. Moreover, the evidence shows that the lot
was not legally occupied by the accused and there was no fence which evinced the occupant's desire to
keep trespassers out. There was, therefore, no privacy to protect, hence, no search warrant was
required."30

The Constitution31 lays down the general rule that a search and seizure must be carried on the strength
of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable." Evidence procured
on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit
of a poisonous tree and should be excluded.32 Such evidence shall be inadmissible in evidence for any
purpose in any proceeding.33

In the instant case, there was no search warrant issued by a judge after personal determination of the
existence of probable cause. From the declarations of the police officers themselves, it is clear that they
had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had revealed his
name to them. The place where the cannabis plants were planted was pinpointed. From the information
in their possession, they could have convinced a judge that there was probable cause to justify the
issuance of a warrant. But they did not. Instead, they uprooted the plants and apprehended the accused
on the excuse that the trip was a good six hours and inconvenient to them. We need not underscore
that the protection against illegal search and seizure is constitutionally mandated and only under
specific instances are searches allowed without warrants.34 The mantle of protection extended by the
Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers,
regardless of the praiseworthiness of their intentions.

We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine.
For the doctrine to apply, the following elements must be present:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who have the right to be where they
are; and

7
 (c) the evidence must be immediately apparent; and

(d) plain view justified mere seizure of evidence without further search.35

In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before
appellant was arrested without a warrant.36 Hence, there was no valid warrantless arrest which
preceded the search of appellant's premises. Note further that the police team was dispatched to
appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in
"plain view" applies only where the police officer is not searching for evidence against the accused, but
inadvertently comes across an incriminating object.37 Clearly, their discovery of the cannabis plants was
not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had
to "look around the area" before they could spot the illegal plants.38 Patently, the seized marijuana
plants were not "immediately apparent" and a "further search" was needed. In sum, the marijuana
plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus,
cannot be made to apply.

Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an
unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable
searches by agents of the State. The right against unreasonable searches and seizures is the immunity of
one's person, which includes his residence, his papers, and other possessions.39 The guarantee refers to
"the right of personal security"40 of the individual. As appellant correctly points out, what is sought to be
protected against the State's unlawful intrusion are persons, not places.41 To conclude otherwise would
not only mean swimming against the stream, it would also lead to the absurd logic that for a person to
be immune against unreasonable searches and seizures, he must be in his home or office, within a
fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the
individual in the sanctuary of his bedroom.

We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained
during an illegal search and seizure. As to the second issue, which involves the admissibility of the
marijuana plants as evidence for the prosecution, we find that said plants cannot, as products of an
unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial
poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted and
relied upon the seized marijuana plants as evidence to convict appellant.

We now proceed to the third issue, which revolves around the sufficiency of the prosecution's evidence
to prove appellant's guilt. Having declared the seized marijuana plants inadmissible in evidence against
appellant, we must now address the question of whether the remaining evidence for the prosecution
suffices to convict appellant?

In convicting appellant, the trial court likewise relied on the testimony of the police officers to the effect
that appellant admitted ownership of the marijuana when he was asked who planted them. It made the
following observation:

"It may be true that the admission to the police by the accused that he planted the marijuana plants was
made in the absence of any independent and competent counsel. But the accused was not, at the time
of police verification; under custodial investigation. His admission is, therefore, admissible in evidence
and not violative of the constitutional fiat that admission given during custodial investigation is not
admissible if given without any counsel."42

Appellant now argues that his admission of ownership of the marijuana plants in question cannot be
used against him for being violative of his right to counsel during the police investigation. Hence, it was
error for the trial court to have relied upon said admission of ownership. He submits that the
investigation conducted by the police officers was not a general inquiry, but was meant to elicit
information on the ownership of the marijuana plants. Appellant theorizes that since the investigation
had narrowed down to him, competent and independent counsel should have assisted him, when the
police sought information from him regarding the ownership of the prohibited plants. Appellant claims
the presumption of regularity of duty of officers cannot be made to apply to his purported voluntarily

8
confession of ownership of the marijuana plants. Nor can it override his constitutional right to counsel
during investigation.

The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet under
custodial investigation when he admitted to the police that he owned the marijuana plants. His right to
competent and independent counsel, accordingly, had not yet attached. Moreover, appellant’s failure to
impute any false motive for the police officers to falsely accuse him indicates that the presumption of
regularity in the performance of official duties by police officers was not sufficiently rebutted.

The Constitution plainly declares that any person under investigation for the commission of an offense
shall have the right: (1) to remain silent; (2) to have competent and independent counsel preferably of
his own choice; and (3) to be informed of such rights. These rights cannot be waived except in writing
and in the presence of counsel.43 An investigation begins when it is no longer a general inquiry but
starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating
or exacting a confession from the suspect in connection with an alleged offense.44 The moment the
police try to elicit admissions or confessions or even plain information from a person suspected of
having committed an offense, he should at that juncture be assisted by counsel, unless he waives the
right in writing and in the presence of counsel.45

In the instant case we find that, from the start, a tipster had furnished the police appellant's name as
well as the location of appellant's farm, where the marijuana plants were allegedly being grown. While
the police operation was supposedly meant to merely "verify" said information, the police chief had
likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the time the
police talked to appellant in his farm, the latter was already under investigation as a suspect. The
questioning by the police was no longer a general inquiry.46

Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that
marijuana so we just asked him and I think there is no need to inform (him of) his constitutional rights
because we are just asking him..."47 In trying to elicit information from appellant, the police was already
investigating appellant as a suspect. At this point, he was already under custodial investigation and had
a right to counsel even if he had not yet been arrested. Custodial investigation is "questioning initiated
by law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way."48 As a suspect, two armed policemen interrogated appellant.
Behind his inquisitors were a barangay peace officer and three other armed policemen.49 All had been
dispatched to arrest him.50 From these circumstances, we may infer that appellant had already been
deprived of his freedom of action in a significant way, even before the actual arrest. Note that even
before he was arrested, the police made him incriminatingly pose for photos in front of the marijuana
plants.

Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a
confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it
must be made with the assistance of competent and independent counsel; (3) it must be express; and
(4) it must be in writing.51 The records show that the admission by appellant was verbal. It was also
uncounselled. A verbal admission allegedly made by an accused during the investigation, without the
assistance of counsel at the time of his arrest and even before his formal investigation is not only
inadmissible for being violative of the right to counsel during criminal investigations, it is also
hearsay.52 Even if the confession or admission were "gospel truth", if it was made without assistance of
counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence,
regardless of the absence of coercion or even if it had been voluntarily given.53

It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the
prosecution must establish by proof beyond reasonable doubt that a crime was committed and that the
accused is the author thereof.54 The evidence arrayed against the accused, however, must not only stand
the test of reason,55 it must likewise be credible and competent.56 Competent evidence is "generally
admissible" evidence.57 Admissible evidence, in turn, is evidence "of such a character that the court or
judge is bound to receive it, that is, allow it to be introduced at trial."58

9
In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the
offense charged.1âwphi1 These were the seized marijuana plants, and appellant's purportedly voluntary
confession of ownership of said marijuana plants to the police. Other than these proofs, there was no
other evidence presented to link appellant with the offense charged. As earlier discussed, it was error on
the trial court's part to have admitted both of these proofs against the accused and to have relied upon
said proofs to convict him. For said evidence is doubly tainted.

First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's
constitutional rights against unreasonable searches and seizures. The search and seizure were void ab
initio for having been conducted without the requisite judicial warrant. The prosecution's very own
evidence clearly establishes that the police had sufficient time to obtain a warrant. There was no
showing of such urgency or necessity for the warrantless search or the immediate seizure of the
marijuana plants subject of this case. To reiterate, said marijuana plants cannot be utilized to prove
appellant's guilt without running afoul of the constitutional guarantees against illegal searches and the
inadmissibility of evidence procured pursuant to an unlawful search and seizure.

Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the
police during investigation, is not only hearsay but also violative of the Bill of Rights. The purported
confession was made without the assistance of competent and independent counsel, as mandated by
the Charter. Thus, said confession cannot be used to convict appellant without running afoul of the
Constitution's requirement that a suspect in a criminal investigation must have the services of
competent and independent counsel during such investigation.

In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession of
ownership of the prohibited plants relied upon to prove appellant's guilt failed to meet the test of
Constitutional competence.

The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent
until the contrary is proved..."59 To justify the conviction of the accused, the prosecution must adduce
that quantum of evidence sufficient to overcome the constitutional presumption of innocence. The
prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the
evidence for the accused.60 Absent the required degree of proof of an accused's guilt, he is entitled to an
acquittal.61 In this case, the seized marijuana plants linking appellant to the crime charged are miserably
tainted with constitutional infirmities, which render these inadmissible "for any purpose in any
proceeding."62 Nor can the confession obtained during the uncounselled investigation be used against
appellant, "it being inadmissible in evidence against him."63 Without these proffered but proscribed
materials, we find that the prosecution's remaining evidence did not even approximate the quantum of
evidence necessary to warrant appellant's conviction. Hence, the presumption of innocence in his favor
stands. Perforce, his acquittal is in order.

In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we are
declaring his innocence because the prosecution's evidence failed to show his guilt beyond reasonable
doubt. For that is what the basic law requires. Where the evidence is insufficient to overcome the
presumption of innocence in favor of the accused, then his "acquittal must follow in faithful obeisance
to the fundamental law."64

WHEREFORE, the decision promulgated on February 18, 1997, by the Regional Trial Court of Bayombong,
Nueva Vizcaya, Branch 27, in Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond
reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him the
death penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is
ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Purisima, Pardo, Buena,
Gonzaga-Reyes, and De Leon, Jr., JJ., concur.
Ynares-Santiago, J., on leave.

10
G.R. No. 107383 February 20, 1996

CECILIA ZULUETA, petitioner,

vs.
COURT OF APPEALS and ALFREDO MARTIN, respondents.

DECISION

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional
Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her
from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a
driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's
clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged
paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The
documents and papers were seized for use in evidence in a case for legal separation and for
disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against
petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial,
rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive
owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in
the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to
a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages;
P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of
preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and
representatives were enjoined from "using or submitting/admitting as evidence" the documents and
papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court.
Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr.
Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and
consent. For that reason, the trial court declared the documents and papers to be properties of private
respondent, ordered petitioner to return them to private respondent and enjoined her from using them
in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision,
petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the
documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were
admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute
malpractice or gross misconduct, For this reason it is contended that the Court of Appeals erred in
affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other
things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the
documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the
injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note
of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains
that:

11
 ....

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial
Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from
using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the
said order to this Court on a petition for certiorari, this Court issued a restraining order on
aforesaid date which order temporarily set aside the order of the trial court. Hence, during the
enforceability of this Court's order, respondent's request for petitioner to admit the
genuineness and authenticity of the subject annexes cannot be looked upon as malpractice.
Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned
annexes, At that point in time, would it have been malpractice for respondent to use petitioner's
admission as evidence against him in the legal separation case pending in the Regional Trial
Court of Makati? Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself
under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in
evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of
her husband's admission and use the same in her action for legal separation cannot be treated
as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration
that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their
genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no
means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of
preliminary injunction issued by the trial court, it was only because, at the time he used the documents
and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The
TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the
trial court's order was dismissed and, therefore, the prohibition against the further use of the
documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction
declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable
simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party
against whom the constitutional provision is to be enforced. The only exception to the prohibition in the
Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise,
as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for
any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and
cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by
contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the
constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged.
Neither husband nor wife may testify for or against the other without the consent of the affected
spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to
any communication received in confidence by one from the other during the marriage, save for specified
exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to
share what one knows with the other. And this has nothing to do with the duty of fidelity that each
owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

12
Regalado, Romero and Puno, JJ., concur.

[G.R. NOS. 140538-39 : June 14, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. GODOFREDO B. ADOR and DIOSDADO B. ADOR III, Appellants.

DECISION

PUNO, J.:

The quiescence of the fading day was shattered by bursts of gunfire, startling the otherwise tranquil but
sanguine folks of Pacol, Naga City.As the fusillade of shots ceased and the wisp of smoke cleared,
frolicking promenaders stumbled upon Ompong Chavez who was gasping his last, clutching his intestines
which had spewed out from his bloodied stomach.He did not in fact reach the hospital alive.A breath
away, Abe Cuya lay lifeless on the pavement.He died on the spot.For the twinned deaths, the Adors, six
(6) of them, were haled to court.

In two (2) separate informations,1 Diosdado Sr.,2 Diosdado Jr., Diosdado III, Godofredo, Rosalino and
Allan, all surnamed Ador, were charged with the murder of Absalon Abe S. Cuya III and Rodolfo Ompong
S. Chavez.The Informations in Crim. Cases Nos.97-6815 and 97-6816 identically
read:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

That on or about March 10, 1997, in the City of Naga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together and mutually helping
one another, with intent to kill, with treachery and the aid of armed men, did then and there willfully,
unlawfully and feloniously shoot ABSALON ABE CUYA III (RODOLFO OMPO CHAVEZ y SAN ANDRES3 for
Crim. Case No. 97-6816) with firearms, inflicting upon him multiple and mortal gunshot wounds which
caused his death, to the damage and prejudice of his heirs.

With the aggravating circumstance of evident premeditation and nighttime.

CONTRARY TO LAW.

However, only four (4) of the six (6) Adors, namely, Diosdado Sr., Godofredo, Rosalino and Allan, were
taken into custody.The two (2), Diosdado Jr. and Diosdado III, remained at large.Trial thus proceeded
only against Diosdado Sr., Godofredo, Rosalino and Allan who all pleaded not guilty.Diosdado Sr. is the
father of Diosdado Jr., Diosdado III and Godofredo, while Rosalino is the father of Allan.Diosdado Sr. and
Rosalino are brothers.4 ςrνll

In its effort to secure the conviction of the accused, the prosecution presented a total of sixteen (16)
witnesses: Mercy Beria, Larry Cado, Medico-Legal Officer of Naga City Dr. Joel S. Jurado, Police Inspector
Ma. Julieta Razonable, SPO1 Benjamin Barbosa, SPO3 Augusto Basagre, Major Ernesto Idian, Inspector
Reynaldo F. Fulgar, SPO1 Noli Reyes Sol, SPO3 Eduardo C. Bathan, Inspector Vicente C. Lauta, Ernani
Castillo, PO3 Augusto I. Nepomuceno, Absalon Cuya Sr., Efren Chavez and Pablo Calsis.

From the evidence of the prosecution, it appears that on March 10, 1997, at around seven-thirty in the
evening, while Mercy Beria, Larry Cado and some eleven (11) others were leisurely walking along
Kilometer 11 on their way to Zone 1, Kilometer 10, Pacol, Naga City, to attend a wedding anniversary,
they heard several gunshots.Shortly after, they met a certain Pablito Umali who told them that Ompong
Chavez had been shot.They ran to Chavez straight off and saw him already lying on the ground, about 1
meters away from a lighted electric post, holding on to his intestines which were starting to come
out.Beria shook Chavez and asked him what had happened.Chavez replied tinambangan kami na
Ador (We were ambushed by the Adors) and requested that he be brought to the hospital as he was
dying.About eight (8) meters from where Chavez was, in a dark spot, lay Abe Cuya, dead.5 ςrνll

Upon learning of the shooting incident through their radio communication, SPO1 Benjamin Barbosa,
together with PO2 Alexander Diaz, immediately proceeded to the crime scene to conduct an
investigation.SPO3 Eduardo Bathan and SPO1 Wilfredo Fernandez, among others, were already

13
there.6 SPO1 Barbosa collected some pieces of evidence, took some pictures and made some
sketches.7 SPO1 Fernandez on the other hand interviewed one Cresenciana Mendoza in her house which
was nearby, and when he heard people shout that Chavez was still alive, he brought Chavez to the
hospital but the latter expired on the way.8 ςrνll

That same evening, upon being informed that the Adors had a long-standing grudge against the Cuyas,
SPO1 Barbosa sought the help of then Barangay Captain Josue Perez to accompany him to the residence
of the Adors.They arrived at the Adors at around ten oclock that evening and spoke with their patriarch,
Diosdado Ador Sr. SPO1 Barbosa looked for the other male members of the Ador family but was told by
Diosdado Sr. that they were already asleep.Diosdado Sr. nevertheless promised to present them the
following day.9 ςrνll

The following morning, March 11, 1997, Barangay Captain Perez accompanied the Adors, namely,
Diosdado Sr., Diosdado III, Godofredo, Rosalino, Allan and Reynaldo, to SPO1 Barbosa at the PNP Central
Police Headquarters.The Adors were informed of their constitutional rights to remain silent and to
choose their own counsel.They were then brought to the PNP Crime Laboratory at the Provincial
Headquarters and subjected to paraffin tests.10 On the way to the crime laboratory, Godofredo told his
police escort that he had been entrusted with a handgun which he kept in his residence.11 The
information was relayed to Major Ernesto Idian, then Deputy Chief of Police of Naga City, who ordered
PO3 Augusto I. Nepomuceno to accompany him in recovering the gun because Godofredo said that he
would turn in the gun only to PO3 Nepomuceno.Thus, Major Idian, PO3 Nepomuceno and some others
accompanied Godofredo to the latters residence.

Upon reaching the Ador residence, Godofredo, together with PO3 Nepomuceno, went to their backyard,
retrieved the gun from under a fallen coconut trunk and turned it in to the latter.Godofredo allegedly
told the police that he fired the said gun outside their house on the night of March 10 after he heard
several gunshots.12 PO3 Nepomuceno identified the gun as a caliber .38 paltik handgun which had no
serial number.13 PO3 Nepomuceno then turned over the handgun to Major Idian14 who likewise
identified it as a .38 caliber revolver.Major Idian returned the handgun to PO3 Nepomuceno for ballistic
and paraffin examination.15 Thereafter, PO3 Nepomuceno placed his initials on the gun and put it in his
private locker while preparing the documents for the examinations and the possible filing of a case for
Illegal Possession of Firearm.16 ςrνll

Also, on the same day, March 11, 1997, Dr. Joel S. Jurado, Medico-Legal Officer of Naga City, conducted
an autopsy on the bodies of Chavez and Cuya.Based on the autopsy reports, Dr. Jurado testified that
Cuya sustained five (5) gunshot wounds and died from cardio-pulmonary arrest, massive intra-thoracic,
intra-abdominal, intra-cranial hemorrhage secondary to multiple gunshot wounds penetrating the heart,
brain, lungs and digestive tract.17 Chavez on the other hand had three (3) gunshot wounds and died from
traumatic shock and massive intra-abdominal hemorrhage secondary to multiple gunshot wounds
penetrating the right kidney and the internal abdominal organs.18 Dr. Jurado further testified that that
he recovered a slug from Cuyas head three (3) days after he conducted the autopsy - after Cuyas
relatives called his attention to a protruding mass in Cuyas head.Thus, he had Cuyas cadaver sent back
to the funeral parlor, opened it and was able to extract a deformed .38 caliber slug which he thereafter
submitted to the City Prosecutors Office.19 ςrνll

Police Inspector Reynaldo Fulgar, Chief of the Firearm Identification Section of the PNP Crime Laboratory,
Camp Ola, Legaspi City, testified that based on the ballistic examination he conducted on the bullets
submitted to his office, the .38 caliber slug recovered from Cuyas head matched the three (3) .38 caliber
test bullets which were test-fired from the suspected firearm surrendered by Godofredo.He however
averred that the .38 caliber bullets were actually fired from a .357 Smith and Wesson Magnum
homemade revolver without serial number, and not from a .38 caliber revolver.20 ςrνll

The paraffin casts taken from the Adors were also transmitted to the PNP Crime Laboratory Services for
examination and yielded the presence of gunpowder nitrates, thus

(1) Diosdado A. Ador both hands, positive;

(2) Diosdado B. Ador III right hand, positive; left hand, negative;

14
(3) Godofredo B. Ador right hand, positive; left hand, negative;

(4) Rosalino A. Ador both hands, positive;

(5) Reynaldo T. Ador both hands, negative;21

(6) Allan T. Ador both hands, positive.22 ςrνll

Absalon Cuya Sr., father of deceased Cuya III, said that the killing of his son was driven by the long-
standing feud between the Adors and his family.He said that Diosdado Jr. had earlier accused his other
son Liberato of frustrated homicide for allegedly stabbing him (Diosdado Jr.). 23 Then, Adelina, a
daughter of Diosdado Sr., filed a case for abduction with multiple rape against him, Absalon III, Rayne
and Josephine, all surnamed Cuya, after the romantic relationship between Adelina and his deceased
son Absalon III turned sour.24 He also presented official receipts of the funeral and burial expenses which
amounted to P10,230.00.25 ςrνll

Efren Chavez, brother of deceased Chavez, likewise spoke of the animosity between the Chavez and the
Ador families.He produced a certification from the PNP Naga City Police Station that on February 17,
1997, a blotter was entered in the Daily Record of Events showing that deceased Chavez reported a
certain Ricardo Ador who while under the influence of liquor caused him physical injury.26 The witness
likewise presented an official receipt showing that the family spent P3,500.00 for the funeral of the
deceased Chavez.27 After presenting Chavez, the prosecution rested its case.

On April 7, 1998, the four (4) accused filed a demurrer to evidence for utter lack of evidence. 28 On May
13, 1998, the trial court dismissed the cases against Diosdado Sr., Rosalino and Allan but denied the
demurrer to evidence against Godofredo

WHEREFORE, this Court finds the demurrer to evidence to be justified for the accused Diosdado A. Ador,
Allan T. Ador and Rosalino Ador, hence, the same is hereby granted insofar as these accused are
concerned.Said accused therefore, namely: Diosdado A. Ador, Allan T. Ador and Rosalino Ador are
ACQUITTED in Crim. Cases Nos. 97-6815 and 97-6816.The bailbonds posted for their provisional liberty
are hereby cancelled.

Trial of the case insofar as Godofredo B. Ador is concerned shall proceed.

SO ORDERED.29 ςrνll

Thus, trial proceeded against Godofredo.

For his defense, Godofredo denied any participation in the killings of Cuya and Chavez.He said that on
March 10, 1997, at aroundseven oclock in the evening, he heard several gunshots while he was having
dinner with his wife and four (4) children in their house in Pacol,NagaCity.Since his wife advised him not
to go out anymore, he slept after dinner.The following day, while he was gathering pili nuts, his long-
time friend Dominador Bautista arrived and asked him to go down from the tree.Bautista wanted to
borrow money and on his way to see him, found a gun by the footpath.Bautista gave the gun to him.It
was his first time to hold a gun.He tried it out and fired three (3) times.After firing the gun, he removed
the empty shells from its chambers and threw them away.He then wrapped the gun with plastic and hid
it under a coconut trunk.Bautista left when he told him that he had no money.He then continued to
gather pili nuts until Major Idian and three (3) other policemen came.

Godofredos father told him that they were being suspected of killing Chavez and Cuya the night
before.Thus, they went to the provincial headquarters, were subjected to paraffin testing and made to
sign a blank bond paper.After that, they went back to the central police station.At the central police
station, Godofredo narrated to a certain Calabia that that morning, his friend Bautista found a gun along
the road and gave it to him.He hid the gun under a coconut trunk.Calabia relayed the information to
Major Idian who directed PO3 Nepomuceno to go with Godofredo to get the gun.Godofredo led PO3
Nepomuceno to where he hid the gun, retrieved it and handed it to the latter.They then returned to the

15
police headquarters where he was jailed.He asserted that the gun presented in court is different from
the gun he surrendered to the police.30 ςrνll

Bautista corroborated Godofredos story.He testified that he found the gun which Godofredo yielded to
PO3 Nepomuceno.He said that he was on his way to see Godofredo to borrow money when he chanced
upon the handgun on the pathway.He gave the gun to Godofredo and the latter tested it by pulling its
trigger.After firing the gun, Godofredo removed the empty shells and threw them.Godofredo then
wrapped the gun with plastic and hid it under a fallen coconut trunk.31 ςrνll

Meanwhile, Diosdado Jr. was arrested on October 9, 1998, at Barangay Doa, Orani,Bataan, and
committed to the Naga City Jail on November 17, 1998, while Diosdado III surrendered to the court and
was committed to the same city jail on November 22, 1998.On November 23, 1998, both Diosdado Jr.
and Diosdado III were arraigned and entered a plea of not guilty.Hence, trial against them commenced
and proceeded jointly with the case of the remaining accused, Godofredo.

The prosecution presented Pablo Calsis32 as a witness against Diosdado Jr. and Diosdado III.Calsis
testified that on March 10, 1997, at around 7:30 in the evening, he dropped by the house of Cresenciana
Mendoza whom he fondly called Lola Kising at Kilometer 10, Pacol, Naga City, before going home from
work.After asking permission from her to go home and while about to urinate outside her house, he
heard several gunshots.He ducked by a sineguelas tree at a nearby flower plantation.As he was about to
stand up, he saw Disodado Jr., Diosdado III, Godofredo and another unidentified man run
away.Godofredo was carrying a short firearm while Diosdado Jr. had a long firearm.33 He saw Chavez
and Cuya lying on the road.Chavez was about five (5) meters away from where he stood while Cuya was
ten (10) meters away.The place was illuminated by a bright light from an electric post.There were no
other people around.Calsis ran away for fear that he might be identified by the assailants.He heard
Chavez mumbling but shirked nevertheless.34 ςrνll

Calsis narrated to Absalon Cuya Sr. what he saw only after about one (1) year and nine (9) months.Fear
struck him.35 He maintained that he knew the assailants because he and his wife lived in the house of
Lola Kising after they got married.36 Immense fear prevented him from attending to Chavez, even while
he heard him murmuring, and from informing the families of the victims of the incident that very same
night.He was about to tell the Chavez family the following morning but was counseled by his Lola Bading,
the sister of his Lola Kising, against getting involved in the case.37 Calsis and his family left their residence
in Pacol one (1) month after the incident because he was afraid the assailants might have identified
him.38 Even Lola Kising left her residence two (2) months after the incident.39 It was only after he learned
from Absalon Cuya Sr.that the trial court dismissed the cases for lack of evidence insofar as some of the
original accused were concerned that he took pity on the respective families of the victims who have
failed to get justice for the death of their loved ones.40 ςrνll

In defense, Diosdado Jr. testified that on March 10, 1997, he was in Marikina City working as a
warehouseman and timekeeper of the Consuelo Builders Corporation.He was there the whole time from
February 15, 1997, until March 24, 1997.41 Pablo Aspe, a co-worker of Diosdado Jr., corroborated the
latters testimony.He said that on February 15, 1997, he and Diosdado Jr. left Pacol, Naga City, together
to work in Consuelo Construction in Marikina City.They were with each other in Marikina City the whole
time from February 15, 1997, until he (Aspe) went home to Naga City on March 22, 1997.While in
Marikina City, they resided and slept together in their barracks at the construction site.42 ςrνll

Diosdado III also took the witness stand.On March 10, 1997, at around seven oclock in the evening, he
was at their house at Zone 1, Pacol, Naga City, watching television with his parents and cousins Reynaldo
and Allan when they heard gunshots.They ignored the gunshots, continued watching television and slept
at eight oclock.The following day, at around six oclock in the morning, while he was fetching water, four
(4) policemen arrived at their house and talked to his father.Thereafter, his father called him, his brother
Godofredo, uncle Rosalino and cousins Allan and Reynaldo.The policemen then requested all of them to
go to the PNP Central Police Headquarters for investigation regarding the killings of Chavez and
Cuya.Upon reaching the police headquarters, they were interviewed by the media and afterwards
brought to the provincial headquarters where they were subjected to paraffin tests.They were then
brought back to the Central Police Headquarters and later allowed to go back home to Pacol.

16
Then, sometime in October, 1997, his father was arrested by the police.Diosdado III was at their
residence when his father was picked up.Only his father was taken by the police.He continued to reside
in their house until April, 1998, when he transferred to Sagurong, San Miguel, Tabaco, Albay, to work as
a fisherman.On November 21, 1998, he received a letter from his father telling him to come home.Thus,
he went home the following day.On November 23, 1998, he surrendered to the court.43 ςrνll

The defense also presented Barangay Captain Josue Perez and an uncle of Diosdado Jr. and Disodado III,
Jaime Bobiles.Perez testified that he was the barangay captain of Pacol from 1982 until May, 1997.In
1996, Cresenciana Mendoza left their barangay permanently to live with her children in Manila because
she was sickly and alone in her house.He said that Mendoza never came back.He does not know any
Pablo Calsis and the latter could not have talked to Mendoza on March 10, 1997, because at that time,
Mendoza was not there and her house was already abandoned.44 Similarly, Bobiles confirmed the
testimony that Diosdado III worked as a fisherman in Tabaco and stayed in his residence from May 1,
1998, until November 1998 when Diosdado III received a letter from his father and had to go
home.45 ςrνll

In rebuttal however, prosecution witness SPO1 Fernandez asserted that he interviewed Cresenciana
Mendoza that fateful night of March 10, 1997.46 After the rebuttal witness was presented, the cases
were finally submitted for decision.47 ςrνll

On August 2, 1999, the trial court held that a chain of circumstances x x x lead to a sound and logical
conclusion that indeed the accused (Diosdado III and Godofredo) committed the offense charged48 and
as such rendered judgment

WHEREFORE, premises considered, this court finds the accused Godofredo B. Ador and Diosdado B.
Ador III GUILTY beyond reasonable doubt of the crime of MURDER, defined and penalized under the
provisions of Article 248 of the Revised Penal Code, as amended by Republic Act 7659 in Criminal Cases
Nos. 97-6815 and 97-6816, hereby sentences the said accused Godofredo B. Ador and Diosdado B. Ador
III to suffer the penalty of RECLUSION PERPETUA in Criminal Case No. 97-6815; RECLUSION PERPETUA in
Criminal Case No. 97-6816, to pay the heirs of Absalon Abe Cuya III P25,000 each by way of actual
damages andP50,000 in each criminal case by way of indemnity.To pay the heirs of Rodolfo Ompong
Chavez the sum of P50,000 in each criminal case by way of indemnity, such accessory penalties as
provided for by law and to pay the cost.For insufficiency of the prosecution to prove the guilt of the
accused Diosdado B. Ador, Jr. beyond reasonable doubt, he is hereby ACQUITTED in Crim. Cases Nos. 97-
6815 and 97-6816.

The Jail Warden of the Naga City District Jail is hereby ordered to forthwith release from its custody the
accused Diosdado B. Ador, Jr., unless his further detention is warranted by any other legal cause or
causes.

SO ORDERED.49 ςrνll

Hence, this joint appeal interposed by Disodado III and Godofredo.They maintain that the trial court
gravely erred in convicting them of murder based on circumstantial evidence.The testimony of
prosecution witness Pablo Calsis that he saw them running away from the scene of the crime was
concocted.The handgun turned in by Godofredo was not the same gun presented by the prosecution
during the trial.The unusual discovery of a slug from the head of the deceased - three (3) days after the
autopsy was conducted and after the cadaver was turned over to the family of the victim - was quite
doubtful.Even the supposed dying declaration of the victim specifically pointed to neither Diosdado III
nor Godofredo.And, the trial court erred in admitting in evidence those taken against them in violation
of their constitutional rights to counsel during custodial investigation.50 ςrνll

The rules of evidence allow the courts to rely on circumstantial evidence to support its conclusion of
guilt.51 It may be the basis of a conviction so long as the combination of all the circumstances proven
produces a logical conclusion which suffices to establish the guilt of the accused beyond reasonable
doubt.52 All the circumstances must be consistent with each other, consistent with the theory that all
the accused are guilty of the offense charged, and at the same time inconsistent with the hypothesis
that they are innocent and with every other possible, rational hypothesis except that of guilt.53 The

17
evidence must exclude each and every hypothesis which may be consistent with their innocence.54 Also,
it should be acted on and weighed with great caution.55 Circumstantial evidence which has not been
adequately established, much less corroborated, cannot by itself be the basis of conviction.56 ςrνll

Thus, for circumstantial evidence to suffice, (1) there should be more than one circumstance; (2) the
facts from which the inferences are derived are proven; and (3) the combination of all the circumstances
is such as to produce a conviction beyond reasonable doubt.57 Like an ornate tapestry created out of
interwoven fibers which cannot be plucked out and assayed a strand at a time apart from the others,
the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable
conclusion that the accused, to the exclusion of all others, is guilty beyond reasonable doubt.58 The test
to determine whether or not the circumstantial evidence on record are sufficient to convict the accused
is that the series of the circumstances proved must be consistent with the guilt of the accused and
inconsistent with his innocence.59 Accordingly, we have set guidelines in appreciating circumstantial
evidence:(1) it should be acted upon with caution; (2) all the essential facts must be consistent with the
hypothesis of guilt; (3) the facts must exclude every theory but that of guilt; and (4) the facts must
establish such a certainty of guilt of the accused as to convince the judgment beyond a reasonable
doubt that the accused is the one who committed the offense.60 ςrνll

Measured against the guidelines set, we cannot uphold the conviction of the accused based on the
circumstantial evidence presented.

The first circumstance which the prosecution sought to prove is that the accused were supposedly seen
fleeing from the locus criminis, armed with their respective weapons.Thus, the trial court, gleaning from
the evidence presented, found that [w]hen about to stand, Calsis saw Godofredo B. Ador, Diosdado B.
Ador, Jr. and Diosdado B. Ador III, and a person going to the direction of the house of the Adors which is
about 500 meters away.61 In fact, prosecution witness Calsis allegedly even saw Diosdado Jr. carrying a
long firearm but x x x could not determine what kind of gun it was.62 However, the trial court acquitted
Diosdado Jr.But only rightly so.For, Calsis had difficulty in identifying the Adors notwithstanding his
assertion that he knew and saw them personally.We defer to his direct examination

ATTY. TERBIO (Private Prosecutor) :ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.You said you recognized the persons running, could you tell us their
names?chanroblesvirtualawlibrary

PABLO CALSIS:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

A.Yes sir.

Q.Name them?chanroblesvirtualawlibrary

A.Godofredo Ador, Jr., Sadang III.

Q.How about the others?chanroblesvirtualawlibrary

A.I could not tell his name but if I see him I could identify him.

Q.The 4 persons whom you saw that night, if they are present in court, please point them
out?chanroblesvirtualawlibrary

A.Yes sir.

Q.Point particularly Godofredo Ador, Jr.?chanroblesvirtualawlibrary

A.(Witness pointed or tapped the shoulder of a person inside the courtroom who answered by the
name Diosdado Ador, Jr.)

Q.How about this Sadang III?chanroblesvirtualawlibrary

18
A.(Witness tapped the shoulder of a man who answered by the name of Diosdado Ador III.)

Q.Likewise, point to the third person?chanroblesvirtualawlibrary

A.(Witness pointed to a man)

COURT:

Delete that portion from the record, he is not on trial.

ATTY TERBIO:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.You said you saw 4 persons, is the fourth one inside the courtroom?chanroblesvirtualawlibrary

A.None sir.

Q.But if you saw that person, will you be able to recognize him?chanroblesvirtualawlibrary

A.Yes sir.

Q.Why do you know these persons whom you just tapped the shoulder?

x x xx x xx x x

A.I know these persons having lived in the house of Lola Kising.

Q.How far?chanroblesvirtualawlibrary

A.Around 100 meters.

Q.On the said date and time and place, you said you saw them running, how far were you from
them?chanroblesvirtualawlibrary

A.Around 10 meters. (Emphases supplied)63 ςrνll

The testimony of Calsis, if at all, could hardly be used against Diosdado III whom he miserably failed to
positively identify during trial.In fact, the acquittal of Diosdado Jr. by the trial court renders the entire
testimony of Calsis in serious doubt.Calsis was presented to positively identify the assailants who were
supposedly personally known to him and were just ten (10) meters away from him.It puzzles us no end
why he cannot even identify the Adors in open court.

Thus, despite Calsis assertion that Diosdado Jr. was one of the assailants, the trial court doubted him
and gave credence to the alibi of Diosdado Jr. that the latter was in Nangka, Marikina, when the killings
took place.The trial court favored the unbiased testimony of Aspe who said that Diosdado Jr. worked as
a timekeeper and warehouseman with him at the Consuelo Construction at Nangka, Marikina, from
February 15, 1997, until March 22, 1997, and went home to Pacol only on May 27, 1997.This ruling is
strengthened by the fact that on the morning following the killings, all the male members of the Ador
family were brought to the police headquarters for paraffin examination and Diosdado Jr. was not
among them.64 We thus respect the finding of the trial court that indeed Diosdado Jr. was not at the
scene of the crime absent any indication that the lower court overlooked some facts or circumstances
which if considered would alter the outcome of the case.65 ςrνll

While it is true that the courts are not bound to accept or reject an entire testimony, and may believe
one part and disbelieve another,66 our Constitution and the law mandate that all doubts must be
resolved in favor of the accused.Calsis committed an obvious blunder in identifying the supposed
assailants which this Court cannot simply let go.On the contrary, it creates reasonable doubt in our
minds if Calcis really saw the persons he allegedly saw or if he was even where he said he was that

19
evening.For, it is elementary that the positive identification of the accused is crucial in establishing his
guilt beyond reasonable doubt.That is wanting in the instant case.

What is more, Calsis asseverations, at the outset, could no longer be used against Godofredo since both
the prosecution and the defense have already rested and the case against Godofredo was already
submitted for decision when Calsis was presented.67 Neither can they still be used against Diosdado Jr.
who was already acquitted by the trial court.

Both Diosdado III and Godofredo denied the charges hurled against them.But, while it is true that alibi
and denial are the weakest of the defenses as they can easily be fabricated,68 absent such clear and
positive identification, the doctrine that the defense of denial cannot prevail over positive identification
of the accused must yield to the constitutional presumption of innocence.69 Hence, while denial is
concededly fragile and unstable, the conviction of the accused cannot be based thereon.70 The rule in
criminal law is firmly entrenched that verdicts of conviction must be predicated on the strength of the
evidence for the prosecution and not on the weakness of the evidence for the defense.71 ςrνll

The second circumstance is the handgun turned in by Godofredo.But this was bungled by the
prosecution.Major Idian, Deputy Chief of Police of the Naga City Police Station, to whom the handgun
was turned over after Godofredo surrendered it, identified it as a caliber .38 revolver, thus

ATTY TERBIO (Private Prosecutor) :ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.What kind of firearm was it?chanroblesvirtualawlibrary

MAJOR IDIAN:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

A.Revolver handgun, caliber .38 with 6 rounds ammunition.

Q.What is the caliber?chanroblesvirtualawlibrary

A..38 caliber.72 ςrνll

Similarly, PO3 Nepomuceno who then had been with the PNP for eight (8) years already and to whom
Godofredo turned in the handgun, likewise identified it as a caliber .38, thus

ATTY TERBIO (Private Prosecutor) :ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Q.What is the caliber of that gun?chanroblesvirtualawlibrary

PO3 NEPOMUCENO:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

A..38 caliber.73 ςrνll

However, Insp. Fulgar, Chief of the Firearm Identification Section of the PNP Crime Laboratory, testified
that [t]he indorsement coming from the City Prosecutors Office x x x alleged that the .38 caliber live
bullet was fired from a .38 caliber revolver.But our office found out that the firearm was not a .38
caliber revolver but a .357 caliber revolver.74 ςrνll

Could it be that the handgun was replaced before it was turned over to the PNP Crime Laboratory?While
the prosecution traced the trail of police officers who at every stage held the gun supposedly recovered
from Godofredo, it never clarified this discrepancy which is quite glaring to ignore.It is difficult to believe
that a Deputy Chief of Police and a police officer of eight (8) years will both mistake a .357 caliber for
a .38 caliber handgun.Likewise, a Chief of the Firearm Identification Section of the PNP Crime Laboratory
cannot be presumed not to know the difference between the two (2) handguns.Suffice it to say that the
prosecution failed to clear up the variance and for this Court to suggest an explanation would be to
venture into the realm of pure speculation, conjecture and guesswork.Thus, faced with the obvious
disparity in the suspected firearm used in the crime and that which was turned over by Godofredo, his

20
declaration that the handgun presented in court was different from the gun he gave to the police
deserves serious, if not sole consideration.

Consequently, even the third circumstance, the .38 caliber slug supposedly recovered from the head of
the victim three (3) days after the autopsy was conducted loses evidentiary value as its source is now
highly questionable.It has become uncertain whether the deformed slug was fired from the .38 caliber
revolver turned in by Godofredo or from a .357 caliber handgun as attested to by the Chief of the
Firearm Identification Section of the PNP Crime Laboratory.

Neither can this Court rely on the dying declaration of the dying Chavez nor on the results of the paraffin
tests to convict either Diosdado III or Godofredo or both.To refute these, we need not go far and beyond
the 13 May 1998 Order of the trial court partially granting the demurrer to evidence filed by the accused

The only direct evidence introduced by the prosecution is the testimony of Mercy Beria, that she heard
Rodolfo Ompong Chavez say tinambangan kami na Ador (We were ambushed by the Adors) .Sad to say,
no specific name was ever mentioned by the witness.Neither was she able to tell how many (persons)
Adors were involved.This testimony if it will be given credence may inculpate any person with the family
name Ador as assailant.The prosecution therefore was not able to establish with moral certainty as to
who of the Adors were perpetrators of the offense x x x x Paraffin tests are not conclusive evidence that
indeed a person has fired a gun.

The fact that the accused-appellants tested positive of gunpowder nitrates does not conclusively show
that they fired the murder weapon, or a gun for that matter, for such forensic evidence should be taken
only as an indication of possibility or even of probability, but not of infallibility, since nitrates are also
admittedly found in substances other than gunpowder. (People v. Abellarosa, G.R. No. 121195, 27
November 1996; People v. de Guzman, 250 SCRA 118; People v. Nitcha, 240 SCRA 283)75 ςrνll

Thus, while a dying declaration may be admissible in evidence, it must identify with certainty the
assailant.Otherwise, it loses its significance.Also, while a paraffin test could establish the presence or
absence of nitrates on the hand, it cannot establish that the source of the nitrates was the discharge of
firearms a person who tests positive may have handled one or more substances with the same positive
reaction for nitrates such as explosives, fireworks, fertilizers, pharmaceuticals, tobacco and leguminous
plants.76 In People v. Melchor, 77 this Court acquitted the accused despite the presence of gunpowder
nitrates on his hands

[S]cientific experts concur in the view that the result of a paraffin test is not conclusive.While it can
establish the presence of nitrates or nitrites on the hand, it does not always indubitably show that said
nitrates or nitrites were caused by the discharge of firearm.The person tested may have handled one or
more of a number of substances which give the same positive reaction for nitrates or nitrites, such as
explosives, fireworks, pharmaceuticals and leguminous plants such as peas, beans and alfalfa.A person
who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are
present in the products of combustion of tobacco.The presence of nitrates or nitrites, therefore, should
be taken only as an indication of a possibility but not of infallibility that the person tested has fired a gun.

In fine, the admissions made by Godofredo to Major Idian and PO3 Nepomuceno including the gun in
question cannot be considered in evidence against him without violating his constitutional right to
counsel.Godofredo was already under custodial investigation when he made his admissions and
surrendered the gun to the police authorities.The police had already begun to focus on the Adors and
were carrying out a process of interrogations that was lending itself to eliciting incriminating statements
and evidence: the police went to the Ador residence that same evening upon being informed that the
Adors had a long-standing grudge against the Cuyas; the following day, all the male members of the
Ador family were told to go to the police station; the police was also informed of the dying declaration
of deceased Chavez pointing to the Adors as the assailants; the Adors were all subjected to paraffin
examination; and, there were no other suspects as the police was not considering any other person or
group of persons.The investigation thus was no longer a general inquiry into an unsolved crime as the
Adors were already being held as suspects for the killings of Cuya and Chavez.

21
Consequently, the rights of a person under custodial investigation, including the right to counsel, have
already attached to the Adors, and pursuant to Art. III, Sec. 12(1) and (3), 1987 Constitution, any waiver
of these rights should be in writing and undertaken with the assistance of counsel.Admissions under
custodial investigation made without the assistance of counsel are barred as evidence.78 The records are
bare of any indication that the accused have waived their right to counsel, hence, any of their
admissions are inadmissible in evidence against them.As we have held, a suspects confession, whether
verbal or non-verbal, when taken without the assistance of counsel without a valid waiver of such
assistance regardless of the absence of such coercion, or the fact that it had been voluntarily given, is
inadmissible in evidence, even if such confession were gospel truth.79 Thus, in Aballe v. People,80 the
death weapon, a four-inch kitchen knife, which was found after the accused brought the police to his
house and pointed to them the pot where he had concealed it, was barred from admission as it was
discovered as a consequence of an uncounseled extrajudicial confession.

With hardly any substantial evidence left, the prosecution likewise played up the feud between the
Adors on one hand and the Chavezes and the Cuyas on the other hand, and suggested that the Adors
had an axe to grind against the Chavezes and the Cuyas.For sure, motive is not sufficient to support a
conviction if there is no other reliable evidence from which it may reasonably be adduced that the
accused was the malefactor.81 Motive alone cannot take the place of proof beyond reasonable doubt
sufficient to overthrow the presumption of innocence.82 ςrνll

All told, contrary to the pronouncements of the trial court, we cannot rest easy in convicting the two (2)
accused based on circumstantial evidence.For, the pieces of the said circumstantial evidence presented
do not inexorably lead to the conclusion that they are guilty.83 The prosecution witness failed to identify
the accused in court.A cloud of doubt continues to hover over the gun used and the slug recovered.The
dying declaration and paraffin examination remain unreliable. Godofredos uncounseled admissions
including the gun he turned in are barred as evidence.And, the supposed motive of the accused is simply
insufficient.Plainly, the facts from which the inference that the accused committed the crime were not
proven.Accordingly, the guilt of the accused cannot be established, more so to a moral certainty.It is
when evidence is purely circumstantial that the prosecution is much more obligated to rely on the
strength of its own case and not on the weakness of the defense, and that conviction must rest on
nothing less than moral certainty.84 ςrνll

Consequently, the case of the prosecution has been reduced to nothing but mere suspicions and
speculations.It is hornbook doctrine that suspicions and speculations can never be the basis of
conviction in a criminal case.85 Courts must ensure that the conviction of the accused rests firmly on
sufficient and competent evidence, and not the results of passion and prejudice.86 If the alleged
inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is
consistent with the innocence of the accused, and the other consistent with his guilt, then the evidence
is not adequate to support conviction.87 The court must acquit the accused because the evidence does
not fulfill the test of moral certainty and is therefore insufficient to support a judgment of
conviction.88 Conviction must rest on nothing less than a moral certainty of the guilt of the
accused.89 The overriding consideration is not whether the court doubts the innocence of the accused
but whether it entertains a reasonable doubt as to his guilt.90 It is thus apropos to repeat the doctrine
that an accusation is not, according to the fundamental law, synonymous with guilt the prosecution
must overthrow the presumption of innocence with proof of guilt beyond reasonable doubt.The
prosecution has failed to discharge its burden.Accordingly, we have to acquit.

IN VIEW WHEREOF, the Decision of the Regional Trial Court of Naga City, Br. 25, in Crim. Cases Nos. 97-
6815 and 97-6816 dated August 2, 1999, finding accused-appellants Godofredo B. Ador and Diosdado B.
Ador III guilty beyond reasonable doubt of two (2) counts of murder and imposing on them the penalty
of reclusion perpetua, is hereby REVERSED and SET ASIDE.Accused-appellants Godofredo B. Ador and
Diosdado B. Ador III are ACQUITTED on reasonable doubt and their IMMEDIATE RELEASE is hereby
ORDERED unless they are being held for some other legal cause.

SO ORDERED.

Quisumbing, Austria-Martinez, Callejo, Sr., and TINGA, JJ., concur.

22
G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F. ZAMORA, Presiding Judge, Br. 94, Regional Trial Court of Quezon
City and RAFAEL S. ORTANEZ, respondents.

Oscar A. Inocentes & Associates Law Office for petitioner.

Efren A. Santos for private respondent.

PADILLA, J.:

This is a petition for review under Rule 45 of the Rules of Court which seeks to reverse the decision * of
respondent Court of Appeals in CA-G. R. SP No. 28545 entitled "Teresita Salcedo-Ortanez versus Hon.
Romeo F. Zamora, Presiding Judge, Br. 94, Regional Trial Court of Quezon City and Rafael S. Ortanez".

The relevant facts of the case are as follows:

On 2 May 1990, private respondent Rafael S. Ortanez filed with the Regional Trial Court of Quezon City a
complaint for annulment of marriage with damages against petitioner Teresita Salcedo-Ortanez, on
grounds of lack of marriage license and/or psychological incapacity of the petitioner. The complaint was
docketed as Civil Case No. Q-90-5360 and raffled to Branch 94, RTC of Quezon City presided over by
respondent Judge Romeo F. Zamora.

Private respondent, after presenting his evidence, orally formally offered in evidence Exhibits "A" to "M".

Among the exhibits offered by private respondent were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified persons.

Petitioner submitted her Objection/Comment to private respondent's oral offer of evidence on 9 June
1992; on the same day, the trial court admitted all of private respondent's offered evidence.

A motion for reconsideration from petitioner was denied on 23 June 1992.

A petition for certiorari was then filed by petitioner in the Court of Appeals assailing the admission in
evidence of the aforementioned cassette tapes.

On 10 June 1993, the Court of Appeals rendered judgment which is the subject of the present petition,
which in part reads:

It is much too obvious that the petition will have to fail, for two basic reasons:

(1) Tape recordings are not inadmissible per se. They and any other variant thereof can
be admitted in evidence for certain purposes, depending on how they are presented
and offered and on how the trial judge utilizes them in the interest of truth and fairness
and the even handed administration of justice.

(2) A petition for certiorari is notoriously inappropriate to rectify a supposed error in

admitting evidence adduced during trial. The ruling on admissibility is interlocutory;
neither does it impinge on jurisdiction. If it is erroneous, the ruling should be questioned
in the appeal from the judgment on the merits and not through the special civil action
of certiorari. The error, assuming gratuitously that it exists, cannot be anymore than an
error of law, properly correctible by appeal and not by certiorari. Otherwise, we will
have the sorry spectacle of a case being subject of a counterproductive "ping-pong" to
and from the appellate court as often as a trial court is perceived to have made an error

23
 in any of its rulings with respect to evidentiary matters in the course of trial. This we
cannot sanction.

WHEREFORE, the petition for certiorari being devoid of merit, is hereby DISMISSED. 1

From this adverse judgment, petitioner filed the present petition for review, stating:

Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals] has no basis in law nor previous
decision of the Supreme Court.

10.1 In affirming the questioned order of respondent judge, the Court of

Appeals has decided a question of substance not theretofore
determined by the Supreme Court as the question of admissibility in
evidence of tape recordings has not, thus far, been addressed and
decided squarely by the Supreme Court.

11. In affirming the questioned order of respondent judge, the Court of Appeals has
likewise rendered a decision in a way not in accord with law and with applicable
decisions of the Supreme Court.

11.1 Although the questioned order is interlocutory in nature, the same

can still be [the] subject of a petition for certiorari. 2

The main issue to be resolved is whether or not the remedy of certiorari under Rule 65 of the Rules of
Court was properly availed of by the petitioner in the Court of Appeals.

The extraordinary writ of certiorari is generally not available to challenge an interlocutory order of a trial
court. The proper remedy in such cases is an ordinary appeal from an adverse judgment, incorporating
in said appeal the grounds for assailing the interlocutory order.

However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would
not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress. 3

In the present case, the trial court issued the assailed order admitting all of the evidence offered by
private respondent, including tape recordings of telephone conversations of petitioner with unidentified
persons. These tape recordings were made and obtained when private respondent allowed his friends
from the military to wire tap his home telephone. 4

Rep. Act No. 4200 entitled "An Act to Prohibit and Penalize Wire Tapping and Other Related Violations
of the Privacy of Communication, and for other purposes" expressly makes such tape recordings
inadmissible in evidence. The relevant provisions of Rep. Act No. 4200 are as follows:

Sec. 1. It shall be unlawful for any person, not being authorized by all the parties
to any private communication or spoken word, to tap any wire or cable, or by
using any other device or arrangement, to secretly overhear, intercept, or
record such communication or spoken word by using a device commonly known
as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape-recorder,
or however otherwise described. . . .

Sec. 4. Any communication or spoken word, or the existence, contents,

substance, purport, or meaning of the same or any part thereof, or any
information therein contained, obtained or secured by any person in violation of
the preceding sections of this Act shall not be admissible in evidence in any
judicial, quasi-judicial, legislative or administrative hearing or investigation.

24
Clearly, respondents trial court and Court of Appeals failed to consider the afore-quoted provisions of
the law in admitting in evidence the cassette tapes in question. Absent a clear showing that both parties
to the telephone conversations allowed the recording of the same, the inadmissibility of the subject
tapes is mandatory under Rep. Act No. 4200.

Additionally, it should be mentioned that the above-mentioned Republic Act in Section 2 thereof
imposes a penalty of imprisonment of not less than six (6) months and up to six (6) years for violation of
said Act. 5

We need not address the other arguments raised by the parties, involving the applicability of American
jurisprudence, having arrived at the conclusion that the subject cassette tapes are inadmissible in
evidence under Philippine law.

WHEREFORE, the decision of the Court of Appeals in CA-G. R. SP No. 28545 is hereby SET ASIDE. The
subject cassette tapes are declared inadmissible in evidence.

SO ORDERED.

Narvasa, C.J., Regalado, Puno and Mendoza, JJ., concur.

[G.R. No. 149889. December 2, 2003.]

THE PEOPLE OF THE PHILIPPINES, Appellee, v. RUEL BACONGUIS y INSON, Appellant.

DECISION

CARPIO MORALES, J.:

On automatic review is the Decision of July 11, 2001 promulgated by the Regional Trial Court of Cagayan
de Oro City, Branch 18, convicting Ruel Baconguis y Inson (appellant) of murder and sentencing him to
death.chanrob1es virtua1 1aw 1ibrary

To the charge of murder allegedly committed as follows,

That on or about June 23, 2000 at 2:04 early in the morning at Phase 3, Block 21, Lot 9, Villa Trinitas
Subd., Bugo, Cagayan de Oro City, and within the jurisdiction of this Honorable Court, the above-named
accused, with treachery and with intent to kill, attacked one Roberto C. Mercado with the use of an
undetermined caliber of a gun thereby inflicting mortal wounds which is the cause of his immediate
death.

Contrary to Article 248 of the Revised Penal Code, in relation to RA 7659, as amended. 1

appellant pleaded not guilty during his arraignment on July 27, 2000. 2

Culled from the evidence for the prosecution is its following version of the case:chanrob1es virtual 1aw
library

On June 23, 2000, at around 2:40 a.m., while Lydia Mercado-Lledo was sleeping in her 3-bedroom one
storey house, she was awakened by the sound of a gunshot. She immediately looked out of her
bedroom window and saw to her right a tall man some five meters away from her 3 leave her house and
jump over the 2½ – 3 meters high bamboo fence. 4 Before the man who was wearing khaki short pants
and a white T-shirt jumped, he turned his face to the left, thus enabling her to see his slim face and tall
nose. 5

Lydia soon heard someone moaning. She thus repaired to the sala where she found her younger brother,
taxi-driver 24-year old Roberto Mercado (the victim), sprawled and bleeding on the floor. He was

25
brought to the hospital but he died on the way due to severe hemorrhage resulting from a gunshot
wound at the left chest. Aside from the chest, the victim also suffered gunshot wounds on his left
forearm. 6

The investigating officers found that the description of the man seen leaving Lydia’s house matched that
of herein appellant Ruel Baconguis who was a suspect in several cases of theft and robbery.

In the afternoon of the incident, the police arrested appellant in the house of his in-laws at Purok 2-B,
Gusa, Cagayan de Oro City. 7 At about noon of the following day or on June 24, 2000, appellant was
paraffin-tested and was found positive for gunpowder nitrates on both hands. 8

Lydia was accordingly informed by her other brother, policeman Adolfo Mercado, that the suspect had
been arrested. In the early afternoon of June 24, 2000, she was brought to the cell of the police station
where appellant was detained and was informed that the lone detainee therein was the suspect. 9 On
seeing appellant, she declared that he was the man she saw leaving her house and jumping over the
fence. 10

The defense, on the other hand, denied the accusation.

Proffering alibi, appellant claimed that on the night of June 22, 2000, he took a walk along Limketkai
with his common-law-wife Liezel Sacala, child, mother-in-law and sister-in-law after which they returned
to the house of his in-laws; and at the time of the incident, he was fast asleep. 11

Liezel corroborated appellant’s claim, adding that on the night of the incident she woke up twice to give
milk to their 2-year old baby, and appellant never left the house following their return from the walk. 12

Crediting Lydia’s positive identification of appellant as the man she saw leaving her house and jumping
over the fence and the results of the paraffin test, the trial court convicted appellant by the decision on
review, 13 the dispositive portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, finding accused RUEL BACONGUIS y INSON GUILTY beyond reasonable doubt of the crime
of MURDER punishable under Article 248 of the Revised Penal Code in relation to R.A. 7659, and after
taking into account the presence of one generic aggravating circumstance of dwelling, without any
mitigating, the said accused is hereby sentenced to suffer the supreme penalty of DEATH by lethal
injection. He is further directed to indemnify the heirs the amount of FIFTY THOUSAND PESOS as
damages for the death of the victim, another FIFTY THOUSAND PESOS as exemplary damages, actual
expenses in the amount of THIRTY FOUR THOUSAND PESOS, plus to pay the costs. Pursuant to section
22 of R.A. 7659 and section 10 of Rule 122 of the Rules of Court, let the entire record of this case be
forwarded to the Supreme Court for automatic review.cralawlibrary : red

SO ORDERED. 14

In his brief, appellant proffers the following assignment of errors:chanrob1es virtual 1aw library

I.

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE FAILURE OF
THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT .

II.

THE LOWER COURT ERRED IN DISREGARDING THE TESTIMONIES OF THE ACCUSED AND DEFENSE
WITNESSES AND IN RELYING HEAVILY ON THE TESTIMONY OF THE PROSECUTION WITNESSES .

III.

26
THE LOWER COURT ERRED IN APPRECIATING THE FACT THAT THE ACCUSED WAS NOT ASSISTED BY A
LAWYER DURING THE CUSTODIAL INVESTIGATION IN VIOLATION OF HIS BASIC CONSTITUTIONAL RIGHT .

IV.

THE LOWER COURT ERRED IN APPRECIATING THE PRESENCE OF THE GENERIC AGGRAVATING
CIRCUMSTANCE OF DWELLING DESPITE THE FACT THAT IT WAS NOT ALLEGED IN THE INFORMATION .
(Emphasis supplied)

Appellant questions his arrest as bereft of a valid warrant. Having, however, submitted to the
jurisdiction of the trial court when he entered his plea 15 and actively participated in the trial of the case,
any infirmity in his arrest was deemed cured. 16

Appellant likewise questions his subjection to custodial interrogation without the assistance of counsel.
There was, however, nothing inculpatory or exculpatory obtained from him by the police during his
custodial investigation.

While it cannot be denied that accused-appellant was deprived of his right to be informed of his rights
to remain silent and to have competent and independent counsel, he has not shown that, as a result of
his custodial interrogation, the police obtained any statement from him — whether inculpatory or
exculpatory — which was used in evidence against him. The records do not show that he had given one
or that, in finding him guilty, the trial court relied on such statement . . . In other words, no uncounseled
statement was obtained from accused-appellant which should have been excluded as evidence against
him. 17

It bears noting that the evidence relied upon by the prosecution is circumstantial.

It is settled that for circumstantial evidence to suffice to convict, the following requisites must be met:
1) there is more than one circumstance; 2) the facts from which the inferences are derived are proven;
and 3) the combination of all circumstances is such as to produce a conviction beyond reasonable doubt.
18

The first circumstance which the prosecution sought to prove is that appellant was seen leaving the
house where the victim lay bleeding of gunshot wounds not long after a gunshot was heard.

Prosecution witness Lydia identified appellant, then alone in the detention cell, and in open court as the
person she saw leaving the house.

The value of the in-court identification made by Lydia, however, is largely dependent upon the out-of-
court identification she made while appellant was in the custody of the police. In People v. Teehankee,
Jr., 19 this Court held that corruption of out-of-court identification contaminates the integrity of in-court
identification during the trial of the case.cralawlibrary : red

In resolving the admissibility of and relying on out-of-court identification of suspects, courts have
adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness’
opportunity to view the criminal at the time of the crime; (2) the witness’ degree of attention at that
time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty
demonstrated by the witness at the identification; (5) the length of time between the crime and the
identification; and, (6) the suggestiveness of the identification procedure. 20 (Emphasis supplied)

The totality of circumstances test has been fashioned to assure fairness as well as compliance with
constitutional requirements of due process in regard to out-of-court identification. 21

Applying the above-said test, there are nagging doubts if Lydia had a good opportunity to view the man
she saw leaving her house. For by her claim, after hearing a gunshot, she stood up and "opened" the 3-
panel jalousied and grilled bedroom window upon which she saw a tall, slim man who was about 5
meters away at the "right side of the window" ; 22 and the man turned his face to the left, glancing at
the terrace 23 which terrace she could not see from where she was, but which was lighted by an 18-

27
watt" [n]ot quite dim" but "more yellow" bulb "attached to the road (sic)." 24

If Lydia could not see the terrace 25 which was five meters away from where she was, how could the
suspect, who was by her account also five meters away from the terrace, glance at the terrace by merely
turning his whole face to the left, given the logical location of the terrace to be obliquely behind (to his
right) him.

If before appellant jumped he was, by Lydia’s claim, about three meters away from the light bulb
"attached to the road" which light illuminated the terrace, how could Lydia have clearly seen the face of
the man turning his face to the left?

As for the circumstances surrounding the identification process, they were clearly tainted by improper
suggestion. While there is no law requiring a police line-up as essential to a proper identification, as
even without it there could still be proper identification as long as the police did not suggest the
identification to the witness, 26 the police in the case at bar did even more than suggest to Lydia.

Thus, by Lydia’s own account, the following transpired after she arrived at the cell where appellant was
detained.

Pros. Nolasco: On June 24, that is the following day, where were you?

A I was in our house.

Q In the afternoon or morning?

A In the morning, Adolfo Mercado went to my house and informed me that they already arrested a
suspect last June 23.

Q And what did you do with that information?

A At 1:00 o’clock in the afternoon, June 24, I went together with my brother to Puerto Police Station.

Q What did you do?

A They let me see the suspect.

Q Were you able to see the suspect?

A Yes, sir.

Q What was your reaction upon seeing the suspect?

A I was so mad because the person whom I saw at that time was the same person. 27

x x x

Atty. Azis [defense counsel]: You said that at about 8:00 o’clock of the same morning there were
operative[s] from the Puerto Police Station and you said they investigated you about the
incident?cralawlibrary : red

A Yes, ma’am.

Q Who among the police officer[s]?

A PO3 [Eddie] Akut, PO3 Ruben and PO3 Achas.

Q You only described to them what you saw, the description of the suspect?

28
A Yes, ma’am.

Q About his being slim built?

A Yes, ma’am.

Q You could not determine whether he is a fair skin[ned] or dark person?

A I could not determine.

Q In fact you could not determine whether there is mark on his face?

A Yes, ma’am.

Q You said that on June 24, 2000 you were informed that there was already a suspect arrested by the
police?

A Yes, ma’am.

Q But you were not or you did not accompany the police officer where that suspect was arrested?

A No ma’am.

Q So it was not you who pointed to the suspect in order for him to be arrested?

A No ma’am.

Q And when you went to the Puerto Police Station they introduced to you the suspect?

A Yes ma’am.

Q When did you first know his name?

A From my brother.

Q When?

A When he went to the house on June 24 in the morning.

Q Where did you see the suspect inside the police station?

A He was still inside the cell when they let me see.

Q In other words, when you saw him he was inside the cell?

A Yes, ma’am.

Q But he was alone at the time?

A Yes, ma’am.

Q And the police officer pointed to you that that is Ruel Baconguis?

A Yes, ma’am.

Q And after pointing to you they told you that he was the suspect?

A Yes, ma’am.

29
Q And because of that, you were convinced that he was the one?chanrobles.com.ph : red

A I was convinced because his face is the same person whom I saw [jump] over the fence. 28 (Emphasis
and Italics supplied)

A showup, such as what was undertaken by the police in the identification of appellant by Lydia, has
been held to be an underhanded mode of identification for "being pointedly suggestive, generating
confidence where there was none, activating visual imagination, and, all told, subverting their reliability
as an eyewitness." 29 Lydia knew that she was going to identify a suspect, whose name had priorly been
furnished by her brother-policeman, when she went to the police station. And the police pointed
appellant to her, and told her that he was the suspect, while he was behind bars, alone. 30

The unusual, coarse and highly singular method of identification, which revolts against accepted
principles of scientific crime detection, alienates the esteem of every just man, and commands neither
respect nor acceptance. 31

In People v. Acosta, 32 this Court rejected the identification by a witness of the accused while the latter
was alone in his detention cell. There, this Court held that the identification of the suspect, which was
tainted by the suggestiveness of having the witness identify him while he was incarcerated with no one
else with him with whom he might be compared by the witness, was less than objective to thus impair
the trustworthiness of their identification. 33

Under the circumstances attendant to the identification of appellant, this Court is not prepared to hold
that the prosecution had established that appellant was the man seen leaving the house-scene of the
crime soon after a gunshot was heard.

As for the positive paraffin findings on appellant, it is well settled that nitrates are also found in
substances other than gunpowder. 34 Thus, in a number of cases, 32 the Court acquitted the accused
despite the finding of gunpowder nitrates on his hand, noting that:chanrob1es virtual 1aw library

[S]cientific experts concur in the view that the result of a paraffin test is not conclusive. While it can
establish the presence of nitrates or nitrites on the hand, it does not always indubitably show that said
nitrates or nitrites were caused by the discharge of firearm. The person tested may have handled one or
more of a number of substances which give the same positive reaction for nitrates or nitrites, such as
explosives, fireworks, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person
who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are
present in the products of combustion of tobacco. The presence of nitrates, therefore, should be taken
only as an indication of a possibility but not of infallibility that the person tested has fired a gun. 33

In fact, prosecution witness Police Superintendent Liza Madeja Sabong, who conducted the paraffin test
on appellant, testified that a person who fires a gun can transfer gunpowder from his hands to someone
standing very near him even if the second person did not fire a gun himself. 34

But even assuming arguendo that appellant’s being positive for gunpowder may be credited as
circumstantial evidence indicating his culpability, that is only one circumstance, and since no other
circumstance was established by the prosecution, the first requirement for circumstantial evidence to
warrant conviction of appellant has not been met.

The prosecution having failed to discharge its burden of proving the guilt of appellant beyond
reasonable doubt, he must be acquitted.

WHEREFORE, the appealed decision of the Regional Trial Court, Branch 18, Cagayan de Oro City finding
appellant RUEL BACONGUIS y INSON guilty of murder is hereby REVERSED AND SET ASIDE and appellant
is ACQUITTED thereof. He is ordered IMMEDIATELY RELEASED from confinement unless he is being held
for some other legal cause.

The Director of Prisons is DIRECTED to forthwith implement this Decision immediately and to inform this

30
Court within five days from receipt hereof of the date appellant shall have actually been released from
confinement.chanrobles.com.ph : law library

SO ORDERED.

Davide, Jr., C.J., Puno, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Callejo, Sr., Azcuna and Tinga, JJ., concur.

G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
JOEL YATAR alias "KAWIT", appellant.

DECISION

PER CURIAM:

On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25,
sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with
Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the
amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the
amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to
P511,410.00, and costs of litigation.1

Appellant was charged with Rape with Homicide under the following Information:

That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the
jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain
KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a
bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the
victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously,
and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will.

CONTRARY TO LAW.2

The facts are:

On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn
Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West,
Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband,
appellant Joel Yatar, through Kathylyn’s friend, Cecil Casingan. Kathylyn handed the letter to
appellant earlier that morning.3

At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm
in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told
Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she
would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was
left alone in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel.
They saw appellant at the back of the house. They went inside the house through the back door of the
kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he
was getting lumber to bring to the house of his mother.5

At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the
ladder from the second floor of the house of Isabel Dawang and run towards the back of the house. 6 She
later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth

31
at the back of the house. She did not find this unusual as appellant and his wife used to live in the house
of Isabel Dawang.7

At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing
a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber
he had stacked, and that Isabel could use it. She noticed that appellant’s eyes were "reddish and sharp."
Appellant asked her where her husband was as he had something important to tell him. Judilyn’s
husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8

In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were
off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She
noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went
up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door
was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless
body that was cold and rigid.9

Isabel moved her hand throughout the entire body. She found out that it was the naked body of her
granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a
flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her
intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A
daughter of Isabel, Cion, called the police.10

At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel
Dawang’s house. Together with fellow police officers, Faniswa went to the house and found the naked
body of Kathylyn Uba with multiple stab wounds.

The people in the vicinity informed the police officers that appellant was seen going down the ladder of
the house of Isabel Dawang at approximately 12:30 p.m.

The police discovered the victim’s panties, brassiere, denim pants, bag and sandals beside her naked
cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50
meters from the house of Isabel.

When questioned by the police authorities, appellant denied any knowledge of Kathylyns’s
death,11 however, he was placed under police custody.

On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar
Abagan accompanied him to the toilet around seven to ten meters away from the police station. They
suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (He’s running away!). Police Officer
Orlando Manuel exited through the gate of the Police Station and saw appellant running away.
Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured
him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant
pleaded "not guilty."

After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under
Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape
Law of 1997, and was accordingly, sentenced to Death.

Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief,
appellant assigns the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY
THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.

II

32
 THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE
SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT.

Appellant’s contentions are unmeritorious.

The issue regarding the credibility of the prosecution witnesses should be resolved against appellant.
This Court will not interfere with the judgment of the trial court in determining the credibility of
witnesses unless there appears in the record some fact or circumstance of weight and influence which
has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule
that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal
unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same;
the reason being that the former is in a better and unique position of hearing first hand the witnesses
and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge
overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the
result of the case, the trial judge’s assessment of credibility deserves the appellate court’s highest
respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by
improper motive, their testimonies are entitled to full faith and credit.16

The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which
provides that an accused can be convicted even if no eyewitness is available, as long as sufficient
circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused
committed the crime.17

Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised,
were found on the victim’s abdomen and back, causing a portion of her small intestines to spill out of
her body.18 Rigor mortis of the vicitm’s body was complete when Dr. Bartolo examined the victim at 9:00
a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9)
to twelve (12) hours prior to the completion of rigor mortis.19 In other words, the estimated time of
death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe
within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by
witnesses.

It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C.
Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr.
Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr.
Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual
intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution
that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm
indicating resistance to the appellant’s assault on her virtue.22

Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen
from the vagina of the victim was identical the semen to be that of appellant’s gene type.

DNA is a molecule that encodes the genetic information in all living organisms.23 A person’s DNA is the
same in each cell and it does not change throughout a person’s lifetime; the DNA in a person’s blood is
the same as the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine,
skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic
structure, no two individuals have the same DNA, with the notable exception of identical twins.25

DNA print or identification technology has been advanced as a uniquely effective means to link a suspect
to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For
purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and
exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime
committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and
ensuring the proper administration of justice in every case.

DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion
in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological

33
evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victim’s body or at the
crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the
victim’s body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical
contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant,
DNA can be compared with known samples to place the suspect at the scene of the crime.28

The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used
the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With
PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus,
getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify
small samples using the PCR method.

In assessing the probative value of DNA evidence, courts should consider, inter alia, the following
factors: how the samples were collected, how they were handled, the possibility of contamination of the
samples, the procedure followed in analyzing the samples, whether the proper standards and
procedures were followed in conducting the tests, and the qualification of the analyst who conducted
the tests.29

In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an
expert witness on DNA print or identification techniques.30 Based on Dr. de Ungria’s testimony, it was
determined that the gene type and DNA profile of appellant are identical to that of the extracts subject
of examination.31 The blood sample taken from the appellant showed that he was of the following gene
types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken
from the victim’s vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and
the blood sample given by the appellant in open court during the course of the trial.

Admittedly, we are just beginning to integrate these advances in science and technology in the
Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted
waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in
other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive.

In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles
could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater
discretion over which testimony they would allow at trial, including the introduction of new kinds of
scientific techniques. DNA typing is one such novel procedure.

Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in
its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence
obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is
relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and
molecular biology.

Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal, the trial
court appreciated the following circumstantial evidence as being sufficient to sustain a conviction
beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together
with the victim, Kathylyn Uba; (2) In June 1998, appellant’s wife left the house because of their frequent
quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the
early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00
p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a
dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel
at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6)
Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan
saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn
Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by
a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her
body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and
shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victim’s vagina
(Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be

34
positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the
appellant are identical; and (13) Appellant escaped two days after he was detained but was
subsequently apprehended, such flight being indicative of guilt.35

Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which
leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator
of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must
concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are
proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond
reasonable doubt.36

In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from
him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right
against self-incrimination under Secs. 12 and 17 of Art. III of the Constitution.

This contention is untenable. The kernel of the right is not against all compulsion, but against
testimonial compulsion.37 The right against self- incrimination is simply against the legal process of
extracting from the lips of the accused an admission of guilt. It does not apply where the evidence
sought to be excluded is not an incrimination but as part of object evidence.

We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly
taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair
samples may be admitted in evidence against him, for what is proscribed is the use of testimonial
compulsion or any evidence communicative in nature acquired from the accused under duress.

Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA,
as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the
incident, the police authorities took pictures of the accused without the presence of counsel, we ruled
that there was no violation of the right against self-incrimination. The accused may be compelled to
submit to a physical examination to determine his involvement in an offense of which he is accused.

It must also be noted that appellant in this case submitted himself for blood sampling which was
conducted in open court on March 30, 2000, in the presence of counsel.

Appellant further argues that the DNA tests conducted by the prosecution against him are
unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post
facto law.

This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing
involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court.
Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual
determination of the probative weight of the evidence presented.

Appellant’s twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and
bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house
during the time when the crime was committed, undeniably link him to the June 30, 1998 incident.
Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at
the same time, especially in this case where the two places are located in the same barangay.40 He lives
within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute
walk to reach one house from the other. This fact severely weakens his alibi.

As to the second assignment of error, appellant asserts that the court a quo committed reversible error
in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt.

Appellant’s assertion cannot be sustained.

Generally, courts should only consider and rely upon duly established evidence and never on mere
conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum

35
of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may
be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being
exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant
but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of
such evidence against the likely harm that would result from its admission.

The judgment in a criminal case can be upheld only when there is relevant evidence from which the
court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond
reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is
that degree of certainty that convinces and directs the understanding and satisfies the reason and
judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable
doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and
tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else,
committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that
the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond
reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the
culprit.44

Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the
victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the
appellant running down the stairs of Isabel’s house and proceeding to the back of the same house. 46 She
also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel
Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the
incident or attempt of the appellant to rape her five days before her naked and violated body was found
dead in her grandmother’s house on June 25, 1998.48 In addition, Judilyn also testified that when her
auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to
kill our family."49 According to Judilyn, who was personally present during an argument between her
aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If
you leave me, I will kill all your family and your relatives x x x."50 These statements were not
contradicted by appellant.

Thus, appellant’s motive to sexually assault and kill the victim was evident in the instant case. It is a rule
in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the
acts or statements of the accused before or immediately after the commission of the offense, deeds or
words that may express it or from which his motive or reason for committing it may be inferred.51

Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special
complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on
the occasion thereof, in order to conceal his lustful deed, permanently sealed the victim’s lips by
stabbing her repeatedly, thereby causing her untimely demise.

The following are the elements constitutive of rape with homicide: (1) the appellant had carnal
knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or
intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or
intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the
victim’s father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that
actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence
and intimidation.54 The fact that the victim’s hymen is intact does not negate a finding that rape was
committed as mere entry by the penis into the lips of the female genital organ, even without rupture or
laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are
invariable; it may be so elastic as to stretch without laceration during intercourse. Absence of hymenal
lacerations does not disprove sexual abuse especially when the victim is of tender age.56

In the case at bar, appellant is the husband of the victim’s aunt. He is seven years older than the victim
Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law,
together with the victim and his wife. After the separation, appellant moved to the house of his parents,

36
approximately one hundred (100) meters from his mother-in-law’s house. Being a relative by affinity
within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the
victim.

Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on
the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their
position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless
submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can
be lawfully imposed in the case at bar.

As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the
victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of
P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages
cannot be awarded as part of the civil liability since the crime was not committed with one or more
aggravating circumstances.60

WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in
Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex
crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the
family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in
actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED.

Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended
by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of
the Philippines for the possible exercise of the pardoning power.

Costs de oficio.

SO ORDERED.

Davide, Jr.*, Puno*, Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,

Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

People v. tumimpad

[G.R. No. 97525. April 7, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JOEL SARTAGODA y BOCANEGRA, JIMMY BASCUÑA

y LAZARTE, VICENTE STA. ANA y GUTIERREZ and JOHN DOE, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Ernesto M. Maiquez for Accused-Appellants.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINGERPRINTS; ABSENCE THEREOF DOES NOT ELIMINATE POSSIBILITY
THAT ACCUSED COULD HAVE BEEN AT SCENE OF THE CRIME. — Although We agree with their opinion
that a positive finding of matching fingerprints has great significance, We cannot sustain their theory
that from the negative findings in the fingerprint examination conducted in the course of the
investigation in the instant case, it must be concluded that they could not have been at the scene of the
crime. Negative findings do not at all times lead to a valid conclusion for there may be logical
explanations for the absence of identifiable latent prints other than their not being present at the scene
of the crime. Only latent fingerprints found on smooth surface are useful for purposes of comparison in
a crime laboratory because prints left on rough surfaces result in dotted lines or broken lines instead of
complete and continuous lines. Such kind of specimen cannot be relied upon in a fingerprint

37
examination. The latent fingerprints are actually oily substance adhering to the surfaces of objects that
come in contact with the fingers. By their very nature, oily substances easily spread such that when the
fingers slide against the surface they touch, no identifiable latent print is left, only smudges instead. Not
all police investigators are aware of the nature of latent fingerprints so as to be guided accordingly in
deciding which objects to submit for fingerprint lifting and examination. Noting the interplay of many
circumstances involved in the successful lifting and identification of proper latent fingerprints in a
particular crime scene, the absence of one does not immediately eliminate the possibility that the
accused-appellants could have been at the scene of the crime. They may be there yet they had not left
any identifiable latent fingerprint. Besides, in the case at bar, only ten latent fingerprints are involved.
The findings in this particular fingerprint examination are not sufficient to case even just a reasonable
doubt in their finding of guilt for the crime charged.

2. ID.; ID.; IDENTIFICATION OF THE ACCUSED; POLICE LINE-UP NOT REQUIRED BY LAW FOR PROPER
IDENTIFICATION; FACE AND BODY MOVEMENT OF ASSAILANT CREATE LASTING IMPRESSION ON VICTIM.
— Whether or not there was a previous police line-up, the fact is that they were positively identified at
the trial. There is no law requiring a police line-up as essential to a proper identification. The
complainant’s recognition of the accused-appellants as her attackers cannot be doubted for she had
during the carnal acts ample opportunity to see the faces of the men who ravaged her. It is the most
natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants
and observe the manner in which the crime was committed. Most often the face of the assailant and
body movement thereof, create a lasting impression which cannot easily be erased from their memory.

3. ID.; ID.; NON-FLIGHT NOT PROOF OF INNOCENCE; CASE AT BAR. — They claim that the fact that
Vicente Sta. Ana and Jimmy Bascuña did not flee, even when they had all the opportunities to do so,
prove their innocence. When they were allowed to go home after Vilma failed to identify them during
the first confrontation at the police station, they stayed home and did not flee until they were again
required to appear at the police station for the second time. The accused-appellants in effect posit that
if flight is an indication of guilt, non-flight or the decision not to flee, having the opportunity to do so, is
a sign of innocence. We do not agree. Although it is settled that unexplained flight indicates guilt, it does
not necessarily follow that absence thereof proves innocence, specially so when there is overwhelming
evidence to establish their guilt.

4. ID.; APPEAL; FACTUAL FINDINGS OF TRIAL JUDGE ENTITLED TO HIGHEST RESPECT; EXCEPTION. — this
Court finds no reversible error having been committed by the trial court in convicting the three accused-
appellants for the crime of robbery with multiple rape under Article 294 par. 2 of the Revised Penal
Code. We affirm its findings of fact which are firmly grounded on the evidence presented at the trial. We
reiterate our ruling thus: "There is need to stress anew that this Court has long been committed to the
principle that the determination by a trial judge who could weigh and appraise the testimony as to the
facts fully proved is entitled to the highest respect, unless it could be shown that he ignored or
disregarded circumstances of weight or influence sufficient to call for a different finding."cralaw
virtua1aw library

5. CRIMINAL LAW; CIVIL LIABILITY OF PERSONS GUILTY OF CRIMES AGAINST CHASTITY; INDEMNITY TO
VICTIM FOR MULTIPLE RAPE ATTENDED BY CONSPIRACY; ACCUSED SOLIDARILY LIABLE THEREFOR. —
With regard to the indemnity to Vilma de Belen for multiple rape, there having been evidence of
conspiracy, the act of one being the act of all, each must be liable for all the three rapes committed,
they must be held solidarily liable for said indemnity which the trial court fixed at P30,000.00 for each
offender or a total of P90,000.00.

6. ID.; ID.; IN MULTIPLE RAPE ACCUSED NOT REQUIRED TO RECOGNIZE OFFSPRING. — This Court cannot
uphold the trial court’s ruling ordering each of the accused to "recognize the offspring if there by any."
In multiple rape, not one maybe required to recognized the offspring of the offended woman. In a case
where three persons, one after another, raped a woman, neither of the accuse was ordered to recognize
the offspring simply because it was impossible to determine the paternity thereof.

DECISION

38
CAMPOS, JR., J.:

The Regional Trial Court, Fourth Judicial Region, Branch 36, Calamba, Laguna convicted all three
accused-appellants in its decision ** dated November 7, 1990, the dispositive portion of which
reads:jgc:chanrobles.com.ph

"WHEREFORE, the court hereby finds the accused Joel Sartagoda y Bocanegra, Jimmy Bascoña (sic) y
Lazarte and Vicente Sta. Ana y Gutierrez all guilty beyond reasonable doubt as co-principals of the crime
of Robbery With Rape, defined and penalized in Article 294, paragraph 2 of the Revised Penal Code;
there being two aggravating circumstances without any mitigating circumstance to offset the same,
hereby sentences each of the said accused to suffer the penalty of Reclusion Perpetua with the
accessories provided for by the law.

Each of the three accused is ordered to indemnify the offended party Vilma de Belen the sum of
P30,000.00, and each of them shall recognize the offspring if there be any.chanrobles.com : virtual law
library

The said accused are likewise ordered to return the personal properties stolen or pay its equivalent
amount of P17,490.00 to Rogelio de Belen, the lawful owner thereof.

SO ORDERED." 1

The facts of the case may be summarized as follows:chanrob1es virtual 1aw library

It was the evening of July 2, 1988 while Rogelio de Belen, his two daughters and his sister Vilma de Belen
were sleeping in their house at Calamba, Laguna, when appellant broke in and woke him up, poking a
knife at him. They tied up his hands and made him lie flat on his stomach and asked for the key to his
cabinet. Fearing for his life and that of his companions, he reluctantly told them where the key was kept.

Just on the other room was Vilma, who heard whispers (kaluskos) but simply played possum. When the
three saw her on the bed, they approached her. One covered her mouth as another poked a knife at her
neck. They threatened to kill her if she should make an outcry.

They raised her blouse and removed her underwear. They tied both her hands so that she could offer no
resistance. She was at such a pitiful state when the accused Jimmy Bascuña went on top of her, kissing
her on different parts of her body, while Vicente Sta. Ana held her legs apart. Jimmy finally inserted his
sex organ inside her and satisfied his bestial desire. After Jimmy was over, Vicente took his turn and then
Joel. After the three of them had successfully deflowered Vilma, they left, carrying with them the money
and other personal belongings of the de Belen family.

After the three men left, Rogelio, with his hands and feet still tied up, tried to get up from the bed and
switched the lights on and called to his neighbors for help. Vilma, meanwhile, had lost consciousness
due to shock.

Meanwhile, Petra Lamire, his sister-in-law who lives right next to his house responded to his cry for help.
She went to their house and untied Rogelio. She saw Vilma with her upper body naked and sobbing so
she covered Vilma with a blanket. Soon after, his other sister-in-law also arrived. They reported the
incident to the Barangay Captain.

They had Vilma examined by Dr. Danilo A. Ramirez at Dr. Jose Rizal Memorial Hospital at about 10:00
that same morning. He conducted external and internal examinations. His external examination showed
no physical injuries except that he noted several abrasions at the genital area. His internal examination
showed fresh lacerations of the hymen at 9:00 and 4:00 positions. The vagina admitted two fingers with
ease.

39
In the present appeal the lone assigned error is:chanrob1es virtual 1aw library

THE LOWER COURT ERRED IN NOT DECLARING (THAT) THE EVIDENCE OF THE PROSECUTION UTTERLY
FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT HENCE, THEIR ACQUITTAL
IS INEVITABLE.

This appeal has no merit.

The accused-appellants fault the trial court of ignoring the fingerprint examination report submitted by
the Crime Laboratory of the PC/INP Camp Crame which stated that none of the specimen latent
fingerprints were found to be positive. It is their contention that since their fingerprints were not found
in the objects found in the scene of the crime they cannot be held guilty of the crime charged beyond
reasonable doubt.

Although We agree with their opinion that a positive finding of matching fingerprints has great
significance, We cannot sustain their theory that from the negative findings in the fingerprint
examination conducted in the course of the investigation in the instant case, it must be concluded that
they could not have been at the scene of the crime. Negative findings do not at all times lead to a valid
conclusion for there may be logical explanations for the absence of identifiable latent prints other than
their not being present at the scene of the crime.chanrobles law library : red

Only latent fingerprints found on smooth surface are useful for purposes of comparison in a crime
laboratory because prints left on rough surfaces result in dotted lines or broken lines instead of
complete and continuous lines. Such kind of specimen cannot be relied upon in a fingerprint
examination. The latent fingerprints are actually oily substances adhering to the surfaces of objects that
come in contact with the fingers. By their very nature, oily substances easily spread such that when the
fingers slide against the surface they touch, no identifiable latent print is left, only smudges instead. Not
all police investigators are aware of the nature of latent fingerprints so as to be guided accordingly in
deciding which objects to submit for fingerprint lifting and examination. Noting the interplay of many
circumstances involved in the successful lifting and identification of proper latent fingerprints in a
particular crime scene, the absence of one does not immediately eliminate the possibility that the
accused-appellants could have been at the scene of the crime. They may be there yet they had not left
any identifiable latent fingerprint. Besides, in the case at bar, only ten latent fingerprints are involved.
The findings in this particular fingerprint examination are not sufficient to cast even just a reasonable
doubt in their finding of guilt for the crime charged.

The accused-appellants likewise contend that the police line-up had been irregularly conducted
revealing suggestibility to their prejudice. They accused Pat. Reyes of coaching complainant Vilma de
Belen when she identified her three assailants. They claim that it was Pat. Reyes’ fault that "they were
not allowed to select their positions at the line-up; that they were not placed in line under a numeral
against a wall marked to indicate their respective height in feet and inches; that there was no record
made of their descriptions and physical characteristics; that the witness/victim was not out of view of
the three (3) accused lined-up for identification purposes." 2

We find these claims of irregularities of little if not, of no significance at all when considered in the light
of the natural desire in the victim to seek retribution not simply from anybody who may be put before
her but from the very same offenders who actually did violence against her. It would be most illogical for
an outraged victim to direct her anger against anyone other than her three offenders. We cannot accept
the accused-appellants’ claim that it was on Pat. Reyes’ suggestion that the victim pointed to the
accused-appellants as her assailants. No amount of coaching will be sufficient to counter the natural
outrage of a rape victim against her abuser when said abuser is presented before her in a police line-up.
The outrage displayed by the rape victim was a spontaneous reaction. She identified her assailants
because of no other reason except to let people know who hurt her.

Whether or not there was a previous police line-up, the fact is that they were positively identified at the
trial. There is no law requiring a police line-up as essential to a proper identification. 3 The
complainant’s recognition of the accused-appellants as her attackers cannot be doubted for she had
during the carnal acts ample opportunity to see the faces of the men who ravaged her. It is the most

40
natural reaction for victims of criminal violence to strive to see the looks and faces of their assailants
and observe the manner in which the crime was committed. Most often the face of the assailant and
body movements thereof, create a lasting impression which cannot easily be erased from their memory.
4

The accused-appellants further claim that "the Medical Findings of Dr. Danilo Ramirez concludes that
the alleged victim of rape, Vilma de Belen must have had sexual experienced (sic) five (5) to six (6) days
before the alleged incident happened on July 2, 1988 at about 3 to 4 o’clock in the morning." 5 There is
no truth to this claim. In fact, there was no categorical or positive assertion on the part of Dr. Ramirez
that the sexual intercourse with Vilma was committed on the very date when the alleged "robbery with
rape" took place on July 2, 1988.

This is a clear distortion of the testimony of Dr. Ramirez who on cross-examination testified as
follows:jgc:chanrobles.com.ph

"ATTY. MAIQUEZ:chanrob1es virtual 1aw library

Q You cannot also determine when was the first and when was the last intercourse as per your
examination?

FISCAL

Objection, witness is incompetent.

COURT

Witness may answer.

A The findings suggest that because of hymenal laceration the injuries was (sic) recent not more than
one week, sir.

Q When you say it is not more than one week, could it be 6 or 5 days?

A Possible, sir.

Q When you say it is possible that the victim could have experienced sexual intercourse 6 to 5 days that
was indicated in your examination marked as Exh. A, can you determine as per your finding?

A Well, yes, sir, I placed fresh hymenal laceration because laceration will determine whether it is fresh
or old because of the characteristice (sic) of the laceration, sir.

Q At the time you examined the patient in your medical opinion it could have been 5 or 6 days had
elapsed?

A Yes, sir.

ATTY. MAIQUEZ:chanrob1es virtual 1aw library

That will be all." 6

The trial court, in the exercise of its discretion to seek clarification in witness’ testimony proceeded as
follows:jgc:chanrobles.com.ph

"COURT:chanrob1es virtual 1aw library

Q Doctor, in your findings you noted that there was an abrasion?

A Yes, your Honor.

41
Q Is that more than one abrasion?

A I found 3 mm., your Honor.

WITNESS (continuing):chanrob1es virtual 1aw library

— and on the lower opening of the vagina on the right side, that is the only place, sir.

COURT:chanrob1es virtual 1aw library

Q Aside from that injury or rater (sic) that portion there is no other injury which you found?

A None, your Honor.

Q Because laceration stated in your medicolegal certificate that there was fresh hymenal laceration
noted at 9 and 4 o’clock on the face of the clock?

A Yes, your Honor.

Q Do we gather it right when you stated in your medicolegal certificate fresh it is not yet healed?

A Yes, your Honor.

Q From that finding of yours regarding the existence of fresh hymenal laceration you said that it least
one or 2 days had elapsed before you have conducted the physical examination?

A Yes, your Honor.

Q In other words from one to 5 days?

A Yes, your Honor.

COURT:chanrob1es virtual 1aw library

Q But it is possible that it could be more than one or two days?.

WITNESS:chanrob1es virtual 1aw library

A Yes, your Honor." 7

It is evident that Dr. Ramirez never categorically concluded that the sexual intercourse causing the fresh
hymenal lacerations took place five to six days before the date of her examination. The accused-
appellants’ claim that the sexual intercourse took place on June 26 or 27, 1988 is conjectural and
without factual basis.chanrobles virtual lawlibrary

The claim of the accused-appellants that the prosecution failed to present rebuttal evidence to refute
the averments of Joel Sartagoda that they tried in vain to persuade him to admit the charge against him
and to implicate his two (2) co-accused did not deserve the attention of the trial court nor does it
deserve Ours, being per se unacceptable and unbelievable in the light of human experience.

Finally, they claim that the fact that Vicente Sta. Ana and Jimmy Bascuña did not flee, even when they
had all the opportunities to do so, prove their innocence. When they were allowed to go home after
Vilma failed to identify them during the first confrontation at the police station, they stayed home and
did not flee until they were again required to appear at the police station for the second time. The
accused-appellants in effect posit that if flight is an indication of guilt, non-flight or the decision not to
flee, having the opportunity to do so, is a sign of innocence.

42
We do not agree. Although it is settled that unexplained flight indicates guilt, it does, not necessarily
follow that absence thereof proves innocence, specially so when there is overwhelming evidence to
establish their guilt.

This Court finds no reversible error having been committed by the trial court in convicting the three
accused-appellants for the crime of robbery with multiple rape under Article 294 par. 2 of the Revised
Penal Code. We affirm its findings of fact which are firmly grounded on the evidence presented at the
trial. We reiterate our ruling thus:jgc:chanrobles.com.ph

"There is need to stress anew that this Court has long been committed to the principle that the
determination by a trial judge who could weigh and appraise the testimony as to the facts duly proved is
entitled to the highest respect, unless it could be shown that he ignored or disregarded circumstances of
weight or influence sufficient to call for a different finding." 8

We are for the affirmance of the conviction of the three Accused-Appellants. With regard to the
indemnity to Vilma de Belen for multiple rape, there having been evidence of conspiracy, the act of one
being the act of all, each must be liable for all the three rapes committed, they must be held solidarily
liable 9 for said indemnity which the trial court fixed at P30,000.00 for each offender or a total of
P90,000.00. 10

However, this Court cannot uphold the trial court’s ruling ordering each of the accused to "recognize the
offspring if there be any." In multiple rape, not one maybe required to recognized the offspring of the
offended woman. In a case 11 where three persons, one after another, raped a woman, neither of the
accused was ordered to recognize the offspring simply because it was impossible to determine the
paternity thereof.chanrobles.com : virtual law library

WHEREFORE, premises considered, the appealed decision is AFFIRMED with the MODIFICATION that the
accused-appellants are held jointly and severally liable to indemnify Vilma de Belen for multiple rape in
the amount of P90,000.00, and that none of the accused is required to recognize the offspring.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.

G.R. No. 132676. April 4, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. JAIME CARPO, OSCAR IBAO, WARLITO IBAO and
ROCHE IBAO, Accused-Appellants.

DECISION

PER CURIAM:

The accused might as well have borrowed the famous line of Shakespeare How this world is given to
lying!1 - when they impute error to the trial court for relying on the testimony of a single witness in
convicting them of multiple murder complexed with attempted murder for the death of Florentino
Dulay, Norwela Dulay and Nissan Dulay, and the wounding of Noemi Dulay.2cräläwvirtualibräry

The challenged testimony of witness Ruben Meriales follows:3 On 25 August 1996 at about 8:00 o'clock
in the evening while he was watching television with his family his dogs barked. His mother who was
apprehensive that their cow might be stolen prodded him to check the disturbance. To allay her fears he
stood up, took his flashlight and trudged the unpaved path towards his cow that was tied to a mango
tree. Then the noise grew louder thus arousing his suspicion that something was really wrong. After
transferring his cow nearer to his house, he went inside the kitchen, stood atop the concrete washbasin,
hid himself behind the bamboo slats and peeped outside to observe. The darkness helped conceal him
from outside view while the light from the two (2) bulbs positioned at about three (3) meters from

43
where he stood filtered through the slats and illumined the surroundings. There was also moon in the
sky.

A few minutes later, he saw barangay captain Jaime Carpo together with Warlito Ibao suspiciously
stooping near his barn. He knew Jaime and Warlito very well. Jaime was his uncle and Warlito lived in his
neighborhood. Warlito's son Roche was also there; he was standing by the mango tree. They were all
looking in the direction of Florentino Dulay's house which was about a meter to the south from where
he was. He also saw Oscar Ibao, another son of Warlito, striding towards Dulay's hut. As soon as he
reached the hut Oscar lifted the sawali mat near the wall and hurled something inside. Oscar then
scurried off towards the nearby creek with Roche following him. Seconds later, a loud explosion shook
the entire neighborhood and Teresita Dulay's screams broke into the night.

Ruben Meriales, rushed outside. He ran towards Florentino's hut but was deterred by darkness. He
returned home to take his flashlight and raced back to lend aid to Teresita. Inside the hut he was
stunned by the terrifying gore that greeted him - a bloodied Florentino cradled in the arms of his
weeping widow, Norwela and Nissan lying side by side on a cot both doused in blood, and a motionless
Norma whose head was oozing with blood.

Realizing the exigency of the situation, he left the crime scene to borrow the jeepney of Brgy.
Kagawad Edgardo Marquez for the hapless victims. The neighbors milling around at once gave up hope
on Florentino so that only Norwela, Nissan and Noemi were loaded in the jeepney and rushed to the
Eastern Pangasinan District Hospital. On their way, Norwela who had injuries on her chest and lower
appendage died. Nissan who was five (5) years old and the youngest of the victims died later due to
"shock from pains" caused by the shrapnel wounds in her left shoulder, abdomen and lower
extremities.4 Noemi luckily survived. Her attending physician, Dr. Emiliano Subido, testified that Noemi
was semi-conscious and vomiting although ambulatory at the time he examined her. But due to the
seriousness of her wounds and the hospital's lack of facilities she was taken to another hospital in
Dagupan City.5cräläwvirtualibräry

In the course of their investigation, the policemen questioned the people who might have witnessed the
carnage. Fearful however that the culprits would return, Ruben Meriales refused to give any statement
but intimated to Police Officer Guillermo Osio that he would go to the police station after the burial.

On 4 September 1996, or a week later, Ruben kept his promise and went to the police station where he
gave his statement to Police Officer Osio. He named Jaime Carpo, Warlito lbao, Oscar lbao and Roche
Ibao as the perpetrators of the crime. He further said that Florentino was killed because he was about to
testify against Roche Ibao for the murder of his brother Delfin Meriales.6cräläwvirtualibräry

On 3 October 1996, solely on the basis of Ruben's testimony, a criminal complaint for the murder of
Florentino Dulay and his two (2) daughters Norwela, and Nissan as well as the frustrated murder of his
daughter Noemi was filed against Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao. Warrants for
their immediate arrest were issued by the municipal circuit trial court.

On 25 October 1996 Jaime Carpo was taken into custody by the police, while Roche Ibao eluded arrest
until 9 December 1996 when he was apprehended by police officers in La Union. With Roche's arrest,
Oscar and Warlito realized the futility of hiding and surrendered themselves to the National Bureau of
Investigation (NBI) in La Union.

At the trial, the prosecution presented Ruben, Noemi, Dr. Rosalina O. Victorio, Dr. Emiliano Subido and
Police Officers Virgilio dela Cruz, Jovencio Tapac and Guillermo Osio as witnesses.

Police Officer Osio testified that on the night of 25 August 1996 after receiving a report of an explosion
in Brgy. Baligayan, he together with Police Officers Julius Aurora, Ricardo Lugares and Jovencio Tapac
immediately responded. They were able to gather several grenade shrapnels and a grenade shifting
lever from the crime scene. He spoke with the weeping Teresita Dulay who told him that she suspected
the accused of having perpetrated the assault. He likewise conferred with Ruben Meriales who named
the same set of suspects and who promised to give his statement to the police after the funeral.

44
After speaking with Teresita and Ruben, he summoned his colleagues to go with him to Warlito Ibao's
house which was just across the road. Warlitos house was dark and its front door was locked. He called
out but there was no answer. They then proceeded to Oscar's house which was also padlocked and
unoccupied. He went to Roche's house and peeped inside before they left.7 Against their positive
identification by Ruben, the four (4) accused interposed alibi claiming that they were somewhere else
when the Dulay hut was blasted. They likewise assailed Ruben's testimony for being a fabrication and
insisted that he lied to get back at them because Roche was a suspect in the killing of his brother Delfin
Meriales. Jaime and his wife Veronica Carpo were one in testifying that in the evening of 25 August 1995
Jaime was at home in Brgy. Libsong, a hundred and fifty (150) meters away from the house of the Dulays
in Brgy. Baligayan. When he heard the loud explosion, he summoned his tanods to check whether the
blast happened within their barangay. When he learned that the explosion occurred in the
adjoining Brgy. Baligayan, he went home to sleep. Brgy. Baligayan is separated from his barangay by a
creek and could be reached in ten (10) minutes. However, on the night of the incident, the creek was
neck deep such that one had to make a detour through a mountainous route for about thirty (30)
minutes to reach Brgy. Baligayan.8cräläwvirtualibräry

Jaime testified that Ruben implicated him because the latter was angry at him. Ruben's grudge
supposedly started when Jaime sided with the Ibaos in the murder case instituted by the Merialeses
against Roche for the death of Delfin Meriales. As a matter of fact on 10 December 1996 while he was
incarcerated at the Balungao District Jail, Ruben supposedly visited him asking his forgiveness for having
named him as one of the perpetrators of the crime. Ruben subsequently pleaded with him to reveal the
names of those responsible but when he claimed ignorance, Ruben left in a huff.

Warlito, Oscar and Roche Ibao testified that on the night of the explosion their family was having a
farewell party for the family's only girl Maribel Ibao who was leaving for Hongkong. They heard the blast
but they did not bother to check. They denied having heard the police officers call for them an hour
after the explosion. Roche further asserted that he did not have a house in Brgy. Baligayan as reported
because he lived with his parents-in-law in Brgy. Libsong. However, on the night of the blast, he slept at
his parents' house as all of his siblings and their families were there. He only learned of the bloodbath
the following morning when they went home to his in-laws. His wife Jovelyn corroborated his testimony
in the same manner that Remedios supported the story of her husband Warlito.9cräläwvirtualibräry

In convicting Jaime Carpo, Warlito Ibao, Oscar Ibao and Roche Ibao of the multiple murder of Florentino,
Norwela and Nissan Dulay and the attempted murder of Noemi Dulay the trial Court gave full credit to
the testimony of Ruben.10 It accepted his straightforward testimony and ruled that "at no instance
throughout the twin testimonies of Meriales did the Court notice a twitch of falsehood on his
lips."11 Accordingly, in accordance with Sec. 6, RA 7659, and Art. 48 of The Revised Penal Code the trial
court imposed upon all of the accused the supreme penalty of death and ordered them to solidarily
indemnify the heirs of the deceased as well as Noemi Dulay in the amount of
P600,000.00.12cräläwvirtualibräry

Forthwith, the case was elevated to this Court for automatic review. After the filing of briefs, the
accused filed an Addendum to Appellant's Brief urging that the favorable results of their lie detector
tests with the NBI be admitted into the records.13cräläwvirtualibräry

A lie detector test is based on the theory that an individual will undergo physiological changes, capable
of being monitored by sensors attached to his body, when he is not telling the truth. The Court does not
put credit and faith on the result of a lie detector test inasmuch as it has not been accepted by the
scientific community as an accurate means of ascertaining truth or deception.14cräläwvirtualibräry

The explosion by means of a hand grenade on the night of 25 August 1996 resulting in the death of
Florentino, Norwela and Nissan Dulay and in the wounding of Noemi Dulay is an admitted fact. The
identity of the perpetrators, as tenaciously questioned by the accused, depends upon the credibility of
Ruben Meriales.

In this appeal, accused-appellants challenge the veracity of the testimony of Ruben Meriales primarily
on two (2) grounds: first, Ruben's testimony in court is different from and is contradictory to his affidavit
of 4 October 1996; and second, Ruben is not a disinterested witness because he has a grudge against the

45
Ibaos. Consistent with giving due deference to the observations of the trial court on credibility of
witnesses, we agree with the court a quo when it believed Ruben Meriales more than the defense
witnesses.15 Indeed, the trial court is best equipped to make an assessment of witnesses, and its factual
findings are generally not disturbed on appeal unless it has overlooked, misunderstood or disregarded
important facts,16 which is not true in the present case.

The twin arguments therefore raised by accused-appellants against the testimony of Ruben Meriales are
devoid of merit. A scrutiny of the records reveals that his testimony is not inconsistent with his affidavit
of 4 October 1996 inasmuch as the former merely supplied the details of the event which the latter
failed to disclose. But assuming that there was any inconsistency, it is settled that whenever an affidavit
contradicts a testimony given in court the latter commands greater respect.17 Such inconsistency is
unimportant and would not even discredit a fallible witness.18 The mere fact that Ruben admitted
harboring resentment against the Ibaos for the murder of his brother Delfin does not confirm that he
fabricated his story. His frankness in admitting his resentment against the Ibaos should even be
considered in his favor.19 There is likewise nothing unnatural in Ruben's attitude of concealing himself
behind the kitchen wall instead of warning the Dulays of the looming danger to their lives. It is a well-
known fact that persons react differently to different situations - there may be some who will respond
violently to an impending danger while there may be others who will simply assume a cravenly
demeanor. In this case, Ruben was ruled by his fear rather than by his reason, but for this alone, his
credibility should not be doubted.

Apropos Jaime's imputation that Ruben had admitted to him while in jail that he lied in his testimony,
we find this accusation farcical as nothing was ever offered in support thereof. The lone corroborative
testimony, which was that of Roche, does not inspire belief since Roche himself admitted overhearing
the conversation while Jaime together with other prisoners was constructing a hut outside of his cell at
about three (3) meters away. As correctly hinted by the prosecution, the noise generated by the
construction made it unlikely for Roche to hear conversations three (3) meters
away.20cräläwvirtualibräry

The defense proffered by the accused is alibi. But this is futile. By his own admission, Jaime was only a
hundred and fifty (150) meters away from the scene of the crime. In fact, it would only take him thirty
(30) minutes, at the most, to be at the place of the Dulays.

More so for the Ibaos who acknowledged that they were having a party just a stone's throw away from
the crime scene at the time of the explosion. Curiously though, if they were indeed reveling inside their
house on that fateful night, then we cannot comprehend why they did not go out to investigate after
hearing the blast. Besides, it was rather strange for the Ibaos not to have joined their neighbors who had
instantaneously milled outside to view the mayhem. Their conduct indeed betrayed them.

Further, the immediate flight and tarriance of the Ibaos to La Union until Roche's arrest cannot but
demonstrate their guilt and desire to evade prosecution.21cräläwvirtualibräry

The trial court also correctly ruled that accused-appellants conspired in perpetrating the offense
charged. From the detailed account of Ruben, Jaime and Warlito positioned themselves near the hay
barn while Roche casually stood by the mango tree. As observed by the trial court, the presence of
Jaime, Warlito and Roche inescapably gave encouragement and a sense of security to Oscar, the group's
preceptor. Surely, the latter was emboldened to commit the crime knowing that his co-conspirators
were not far behind.

Under the doctrine enunciated in People v. Tayo,22 the crime committed may otherwise be more
approriately denominated as murder qualified by explosion rather than by treachery. However, since it
was treachery that is alleged in the Information and appreciated by the trial court, the explosion of the
grenade which resulted in the death of Florentino, Norwela and Nissan, and the wounding of Noemi can
only be multiple murder complexed with attempted murder.23 The crime committed against Noemi
Dulay was correctly denominated by the trial court as attempted murder considering that none of her
injuries was fatal. Her attending physician even made conflicting statements in the assessment of her
wounds, to wit: although he said that Noemi could have died from the shrapnel wound in her head, he
specifically ruled out the possibility of "intercerebral hemorrhage"24 and despite the seriousness of the

46
possible complications of her injuries she would suffer from physical incapacity for only ten (10) to
fourteen (14) days.

As none of her wounds was severe as to cause her death, accused-appellants not having performed all
the acts of execution that would have brought it about, the crime is only attempted
murder.25cräläwvirtualibräry

Since the three (3) murders and attempted murder were produced by a single act, namely, the explosion
caused by the hurling of a grenade into the bedroom of the Dulays, the case comes under Art. 48 of The
Revised Penal Code on complex crimes. Article 48 provides that the penalty for the more serious crime,
which in the present case is reclusion perpetua to death, should be applied in its maximum period. As
the crime was complexed, the death penalty was properly imposed by the trial court.

At this point, we take exception to the court a quo's award of damages in the "negotiated amount of
P600,00.00." It appears that under the auspices of the trial court counsel for the defense entered into an
oral compromise with the public prosecutor, which was subsequently ratified by the private
complainant, limiting the amount of civil liability to P600,000.00. We note the discourse between the
court and the counsel for both parties regarding the award.

PROS. CORPUZ: x x x x (W)e would like to enter into stipulation the civil aspect of the case.

COURT: Are the accused confident that they could be acquitted in this case? Atty Sanglay?

ATTY. SANGLAY: I think so, your Honor.

COURT: What about Atty. Rafael?

ATTY. RAFAEL: We are confident, your Honor.

COURT: All right. So you can easily stipulate. First of all, how much do you want Fiscal?

PROS. CORPUZ: P1,282,740.00, your Honor x x x x

COURT: x x x x Agree gentlemen of the defense?

ATTY. SANGLAY: P600,000.00, your Honor.

COURT: Do you agree Fiscal?

PROS. CORPUZ: Yes, your Honor.

COURT: All right so P600,000.00 is the agreed liquidated amount in case of conviction without
necessarily having to interpret this stipulation as admission of guilt on the part of any of the accused. All
right so we will dispense with the testimony on the civil aspect x x x x

COURT: x x x x Are you the private complainant in this case?

TERESITA DULAY: Yes, sir.

COURT: If the accused get convicted and I will hold them severally liable for you of damages in the
liquidated sum of P600,000.00 as agreed upon by the counsel, will you be satisfied? x x x x

TERESITA: Yes, sir.

COURT: So let that be of record. Will you sign the note so that there will be evidence.

(At this juncture private complainant Teresita Dulay affixed her signature at the bottom right margin of
the stenographic notes page 2 hereof).26cräläwvirtualibräry

47
Article 1878 of the Civil Code and Sec. 23 of Rule 138 of the Rules of Court set forth the attorney's power
to compromise. Under Art. 1878 of the Civil Code, a special power of attorney is necessary "to
compromise, to submit questions to arbitration, to renounce the right to appeal from a judgment, to
waive objections to the venue of an action or to abandon a prescription already acquired." On the other
hand, Sec. 23, Rule 138 of the Rules of Court provides, "(a)ttorneys have authority to bind their clients in
any case by any agreement in relation thereto made in writing, and in taking appeal, and in all matters
of ordinary judicial procedure, but they cannot, without special authority, compromise their clients'
litigation or receive anything in discharge of their clients' claims but the full amount in cash."

The requirements under both provisions are met when there is a clear mandate expressly given, by the
principal to his lawyer specifically authorizing the performance of an act.27 It has not escaped our
attention that in the present case counsel for both parties had no special power of attorney from their
clients to enter into a compromise. However, insofar as Teresita was concerned, she was apprised of the
agreement and in fact had signed her name as instructed by the court, thereby tacitly ratifying the same.
As for accused-appellants, the aforecited dialogue between the court and counsel does not show that
they were ever consulted regarding the proposed settlement. In the absence of a special power of
attorney given by accused-appellants to their counsel, the latter can neither bind nor compromise his
clients' civil liability. Consequently, since Atty. Sanglay and Atty. Rafael had no specific power to
compromise the civil liability of all accused-appellants, its approval by the trial court which did not take
the precautionary measures to ensure the protection of the right of accused-appellants not to be
deprived of their property without due process of law, could not legalize it. For being violative of
existing law and jurisprudence, the settlement should not be given force and effect.

In light of the foregoing, the award of damages must be set aside and a new one entered with all the
circumstances of the case in mind. For the death of Florentino, Norwela and Nissan Dulay, civil
indemnity at P50,000.00 each or a total amount of P50,000.00 is awarded to their heirs. This is in
addition to the award of moral damages at an aggregate amount of P150,000.00 for their emotional and
mental anguish. With respect to Noemi, an indemnity of P30,000.00 would be just and proper. All taken,
an award of P330,000.00 is granted.

Four (4) members of the Court maintain their position that RA 7659, insofar as it prescribes the death
penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by a majority vote, that
the law is constitutional and that the death penalty should be accordingly imposed.

WHEREFORE, the assailed Decision of the trial court finding accused-appellants JAIME CARPO, OSCAR
IBAO, WARLITO IBAO and ROCHE IBAO GUILTYof the complex crime of multiple murder with attempted
murder and sentencing them to the supreme penalty of death is AFFIRMEDwith the MODIFICATIONthat
they are ordered to pay the heirs of the deceased Florentino, Norwela and Nissan, all surnamed Dulay,
P50,000.00 as death indemnity and P50,000.00 as moral damages for each death or an aggregate
amount of P300,00.00. In addition, accused-appellants are ordered to pay Noemi Dulay P30,000.00 as
indemnity for her attempted murder. Costs against accused- appellants.

In accordance with Sec. 25 of RA 7659, amending Art. 83 of The Revised Penal Code, upon finality of this
Decision, let the records of this case be forthwith forwarded to the Office of the President for possible
exercise of executive clemency or pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.

[G.R. No. 108338. April 17, 2001.]

CALIXTO SAÑADO, Petitioners, v. THE COURT OF APPEALS and SIMEON G.

NEPOMUCENO, Respondents.

DECISION

48
MELO, J.:

This case is one of the older ones which was raffled to undersigned ponente pursuant to the Court’s
Resolution in A.M. 00-9-03 dated February 27, 2001 and concerns a petition seeking the reversal of the
decision of the Court of Appeals dated September 11, 1992 and its resolution dated October 15, 1992
denying reconsideration. The Court of Appeals modified the decision of Branch 18 of the Regional Trial
Court of the Ninth Judicial Region stationed in Pagadian City which was rendered in favor of herein
petitioner. Disposed thus the Court of Appeals in its CA-G.R. CV No. 23165 per Justice Montenegro, with
Justices Paras and Ordoñez-Benitez concurring:chanrob1es virtua1 1aw 1ibrary

WHEREFORE, premises considered, judgment is hereby rendered:chanrob1es virtual 1aw library

(a) affirming the judgment appealed from with modification as follows:chanrob1es virtual 1aw library

1. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno to pay the share of plaintiff-
appellee in the amount of P168,000.00 covering the period of four (4) years from February 19, 1975 to
February 19, 1979, with only eight (8) hectares considered to be productive;

2. Ordering defendant-appellant Simeon G. Nepomuceno to pay reasonable rental of the fishpond area
in question from February 20, 1979 to March 20, 1980 in the amount of P25,000.00;

3. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and defendant Edgar J. Chu, to
jointly pay plaintiff-appellee the reasonable rentals of the fishpond area in question at the rate of
P25,000.00 per annum from March 21, 1980 to January 2, 1985;

4. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and defendant Edgar J. Chu, to
jointly and severally pay plaintiff-appellee the sum of P100,000.00 as attorney’ fees;

5. Ordering and sentencing defendant-appellant Simeon G. Nepomuceno and Edgar J. Chu to pay the
costs; and

(b) reversing the decision appealed from insofar as it ordered "defendants jointly to restore possession
and control of the fishpond area in question to the plaintiff" .

(pp. 37-38, Rollo.)

The generative facts are chronicled as follows:chanrob1es virtual 1aw library

The controversy began on October 28, 1969 when the defunct Philippine Fisheries Commission issued in
favor of petitioner Sañado Ordinary Fishpond Permit No. F-5810-X covering an area of fifty hectares
situated in Bo. Monching, Siay, Zamboanga del Sur. As a consequence, petitioner on January 6, 1972
executed a deed of quitclaim involving twenty hectares of the original area of fifty hectares in favor of
his uncle and brother (Decision of the Office of the President, p. 46, Rollo).

On July 16, 1973, petitioner as First Party and private respondent Nepomuceno as Second Party
executed a contract entitled "Contract of Fishpond Development and Financing", which pertinently
provided:chanrob1es virtual 1aw library

That the FIRST PARTY is the possessor and holder of a piece of agricultural land with an area of
approximately FIFTY (50) HECTARES COVERED BY Ordinary Fishpond Permit No. F-5810-X situated at
Monching, Siay, Zamboanga del Sur;

That the SECOND PARTY agreed to undertake full expenses for the development of an area of THIRTY
(30) hectares, out of the approximately FIFTY (50) hectares, covered by Ordinary Fishpond Permit No. F-

49
5810-X of the FIRST PARTY and which parcel is described and bounded as follows:chanrob1es virtual
1aw library

x x x

That the development which shall be undertaken by the SECOND PARTY on the aforesaid area of THIRTY
(30) hectares, consists of:chanrob1es virtual 1aw library

a Construction of dumps; gates, buildings and other accessories pertinent to the full development of the
fishpond area;

b Construction of dikes and the purchase of Bangus Fry for the said fishpond;

That the whole amount invested by the SECOND PARTY for the development of the aforesaid area for
fishpond shall first be recovered out of the products of the fishpond area;

That after the full investment of the SECOND PARTY shall have been recovered, the sharing basis with
the FIRST PARTY shall immediately commence for a period of Four (4) years and the sharing basis shall
be in accordance with the following percentage:chanrob1es virtual 1aw library

THIRTY FIVE PERCENT (35%) of the Net per harvest — FIRST PARTY;

SIXTY FIVE PERCENT (65%) of the Net per harvest — SECOND PARTY;

That after the expiration of the Four (4) years of sharing basis on the Net harvest, this contract of
sharing basis shall be renewed at the option of the second party for a period of another Four (4) years;

(pp. 26-27, Rollo.)

On July 18, 1973, the contracting parties executed a handwritten agreement, modifying the earlier
agreement by excluding the area of ten hectares already cultivated and fully developed by petitioner
and providing that "the contract will be renewed for another four (4) years with another agreement
beneficial to both parties." Simply stated, instead of the renewal being at the option of private
respondent, it shall be renewed on terms acceptable to both petitioner and private Respondent.

Based on the agreement as modified by the aforestated handwritten agreement, private respondent
proceeded with the development of the fishpond area, excluding the area of ten hectares already
developed by petitioner.chanrob1es virtua1 law library

On September 28, 1979, the Director of Fisheries and Aquatic Resources recommended to the then
Ministry of Natural Resources the conversion of Ordinary Fishpond Permit No. F-5810-X into a 25-year
fishpond loan agreement which covered a reduced area of 26.7450 hectares (p. 165, Rollo). Pursuant to
said recommendation, Fishpond Lease Agreement No. 3090 was issued to petitioner on October 8, 1979.

On March 20, 1980, private respondent waived his rights, interest, and participation over the fishpond
area in favor of one Edgar J. Chu.

On March 28, 1980, apparently to oppose the issuance of the 25-year fishpond lease agreement in favor
of petitioner, private respondent informed the Bureau of Fisheries and Aquatic Resources in writing of
his financing/development contract with petitioner and that the fishpond was almost fully developed at
his expense (Ibid.).

Parenthetically, sometime that year, private respondent submitted to petitioner an accounting of the
income or proceeds of the fishpond as well as his expenditures in the development thereof (tsn, July 5,
1983, pp. 10-14). This document, marked as Exhibit "D" and dated February 19, 1975, showed earnings
of the fishpond in the amount of P98,106.35, expenses and advances in the sum of P87,405.25, and cash
on hand of P10,701.10. The original copy thereof was filed with the Bureau of Fisheries and
Development as evidenced by the stamp of the office thereon.

50
On July 17, 1981, petitioner filed a complaint against private respondent and Edgar J. Chu with the
regional trial court docketed as Civil Case No. 2085 for recovery of possession and damages, wherein he
alleged that on February 19, 1975, private respondent had already recovered his investment in full; that
as of said date, the total earnings had amounted to P98,106.35 leaving an excess of P10,701.10 to be
divided between petitioner and private respondent at 35-65 sharing; that the 4-year period during
which petitioner and private respondent would share the net harvest commenced on February 19, 1975
and expired on February 18, 1979; that after February 18, 1975, private respondent has not accounted
for the income of the fishpond and has failed and refused, in gross and evident bad faith despite
renewed and repeated demands, to deliver petitioner’s share of the net harvest for four years which
totaled P250,000.00 more or less.

Meanwhile, during the pendency of the aforesaid Civil Case No. 2085 with the trial court, an order was
issued by then Minister of Agriculture and Food Salvador H. Escudero III, on January 28, 1985 cancelling
Fishpond Lease Agreement No. 3090 and forfeiting the improvements thereon in favor of the
government. Later, said order was reconsidered to the extent that private respondent was given priority
to apply for the area and that his improvements thereon were not considered forfeited in favor of the
government. Petitioner elevated the matter to the Office of the President but his appeal was dismissed
in a decision rendered on July 31, 1989.chanrob1es virtua1 1aw 1ibrary

On June 19, 1989, the trial court rendered its decision in Civil Case No. 2085, the dispositive portion of
which reads as follows:chanrob1es virtual 1aw library

WHEREFORE, IN VIEW OF ALL THE FOREGOING, judgment is hereby rendered in favor of the plaintiff and
against the defendants:chanrob1es virtual 1aw library

1. Ordering defendants jointly to restore possession and control of the fishpond area in question to the
plaintiff;

2. Declaring the Waiver of All Rights, Interests and Participations Over a Fishpond Area (Part) (Exhibit
"E") executed by defendant Nepomuceno in favor of defendant Edgar Chu as null and void;

3. Ordering defendant Simeon Nepomuceno to pay the share of plaintiff in the amount of P168,000.00
covering the period of four years from February 19, 1975 to February 19, 1979, with only eight (8)
hectares considered to be productive;

4. Ordering defendants to jointly pay plaintiff the rentals of the fishpond area in question at the
reasonable rate of P25,000.00 per annum reckoned from February 19, 1979 up to the time the same
fishpond area shall have been duly restored to the possession of the plaintiff;

5. Ordering defendants jointly and severally pay plaintiff the sum of P100,000.00 as attorney’s fees; and

6. To pay the costs.

IT IS SO ORDERED.;

(pp. 24-25, Rollo.)

Private respondent and Edgar J. Chu both appealed the trial court’s decision. However, for failure to file
brief, Chu’s appeal was dismissed.

For his part, private respondent maintained that: (a) the trial court erred in ruling that private
respondent has fully recovered his financial investment in the fishpond area in question as of February
19, 1975 (hence the sharing of the net harvest should not commence on said date); (b) the trial court
erred in ruling that private respondent cannot waive his right to finance the development of the
fishpond area; and (c) the trial court committed grave error and injustice in not dismissing petitioner’s
complaint and in ordering respondent to pay petitioner the amounts of P168,000.00 as petitioner’s
share covering the period beginning February 19, 1975 to February 19, 1979, P25,000.00 per annum

51
constituting reasonable rentals from February 19, 1979 up to the time the fishpond area shall have been
restored to petitioner, as well as P100,000.00 as attorney’s fees.

As mentioned earlier, the Court of Appeals affirmed the trial court’s decision as regards petitioner’s
share in the produce from February 19, 1975 to February 19, 1979 (P168,000.00), the reasonable rental
of the fishpond area (P25,000.00 per annum) from February 20, 1979 to March 20, 1980 and from
March 21, 1980 to January 2, 1986, as well as attorney’s fees (P100,000.00), and costs.

The petition before us hinges on the argument that the Court of Appeals entertained evidence and/or
other matters not duly covered or taken up in the trial of Civil Case No. 2085. Petitioner posits that the
appellate court committed grave abuse of discretion in doing so and in applying said matters in its
disposition of the case. Verily, petitioner’s grumble and protest is confined to that portion of the June 19,
1989 decision of the Court of Appeals directing "defendants jointly to restore possession and control of
the fishpond area to the plaintiff." chanrob1es virtua1 1aw 1ibrary

Petitioner points out that the July 31, 1989 decision rendered by the Office of the President through
Deputy Executive Secretary Magdangal B. Elma is a new matter which should not have been treated by
the appellate court with legal force and effect because "it was merely incidental to the propriety or
impropriety of the issuance of a writ of preliminary mandatory injunction respecting the earlier Writ of
Execution granted by the trial court in favor of Calixto Sañado" (p. 19, Rollo).

In this light, petitioner mentions that on December 11, 1990, during the pendency of the appeal of Civil
Case No. 2085, he filed with the appellate court a motion for execution pending appeal, stating that the
appeal of Edgar J. Chu (who was said to be the actual possessor of the area) had been dismissed. The
appellate court denied the same. On May 21, 1991, petitioner filed another motion for issuance of writ
of execution, claiming that the Sheriff’s Return of Service dated June 6, 1991 stated that "the restoration
to and/or placement of plaintiff Sañado thereof on said fishpond area in controversy . . . ., are hereby
considered complied with." Thereafter private respondent filed a petition for relief from judgment and
or execution which resulted in an order dated June 7, 1991 restoring possession of the fishpond area to
him. Petitioner then proceeds to mention that on June 11, 1991, private respondent filed with the
appellate court an "Ex-Parte Urgent Motion for Issuance of Writ of Preliminary Mandatory Injunction",
alleging that the trial court has not yet issued the corresponding writ of preliminary mandatory
injunction to restore private respondent to the possession of the subject fishpond area. Petitioner
stresses that it was at this particular stage of the proceedings that the subject July 31, 1989 Malacañang
decision was initially mentioned by private respondent who thereby argued that the trial court failed to
consider that prior to the issuance of the writ of execution, the restoration of the subject fishpond to
herein petitioner would in effect destroy the essence of said Malacañang decision which affirmed the
cancellation of the Fishpond Lease Agreement No. 3050. In consequence thereof, the appellate court
issued a resolution dated June 14, 1991 ordering that anyone who had anything to do with the
enforcement of the writ of execution issued by the trial court was restrained temporarily from enforcing
said writ, such that private respondent, who was acknowledged to be in possession of the subject
property consisting of five ponds at the time of the issuance of the aforesaid writs; should remain in the
possession thereof until further notice by the court. Later, the trial court itself ordered the immediate
restoration of possession of the subject fishpond area to herein private Respondent. An exchange of
pleadings followed where, as an attachment to his comment, private respondent presented a photostat
copy of the subject July 31, 1989 decision of the Office of the President.

Setting aside the factual ramifications of the instant case, we find that the only issue thereof refers to
the legal effect and evidentiary weight of the July 19, 1989 decision rendered by the Office of the
President in relation to Civil Case No. 2085 and CA-G.R. CV No. 23165.chanrob1es virtua1 1aw 1ibrary

Let us first examine the premise and basis of the aforesaid July 31, 1989 decision of the Office of the
President. A perusal thereof reveals that it resolved the appeal filed by petitioner and the Samahang
Kabuhayan ng Barangay Monching from the order of the then Minister of Agriculture and Food, dated
January 28, 1985 which cancelled the Fishpond Lease Agreement No. 3090 issued to petitioner and
forfeited in favor of the government the improvements thereof, including the bond, and ruled that the
area with the improvements shall be disposed of in accordance with Presidential Decree No. 704
(Revising and Consolidating All Laws and Decrees Affecting Fishing and Fisheries) to any qualified

52
applicant pursuant to applicable rules and regulations thereon. Said cancellation was premised on the
following factors: (1) violation by petitioner of the terms of the fishpond lease agreement and of
Fisheries Administrative Order (FAO) 125 (s. 1979) when he transferred/subleased his leasehold rights
without government approval; and (2) failure of petitioner to comply with the development
requirements.

In the subject July 31, 1989 decision, the Office of the President, through then Deputy Executive
Secretary Magdangal B. Elma, upholding the January 28, 1985 Escudero Order, dismissed petitioner’s
appeal and affirmed the cancellation of the subject Fishpond Lease Agreement No. 3090 on the
following grounds: (1) Section 5(k) of Fisheries Administrative Order (FAO) No. 125 prohibits the
awardee of a fishpond lease agreement from transferring or subletting the fishpond granted to him
without the previous consent or approval of the ministry concerned, and similarly, the lessee shall not
sublet or enter into a sub-lease contract over the area or portion covered by the fishpond lease
agreement; (2) the Sañado-Nepomuceno contract is not the only instance when petitioner
transferred/subleased his rights over the fishpond area without approval of the appropriate ministry
head since on January 6, 1972, he transferred 20 hectares of the original 50-hectare fishpond area to his
brother and uncle, and on September 12, 1982, he transferred his rights over the 26.7450 area to the
Samahang Kabuhayan ng Barangay Monching Association which later assigned its leasehold rights in
favor of the Development Bank of the Philippines in consideration of the amount of P653,153.46; and
(3) petitioner’s failure to develop forty percent of the area within three years and to completely develop
the remaining portions within five years, both to commence from the date of the issuance of the lease
agreement in accordance with the terms and conditions of the lease agreement (out of the whole area
occupied by petitioner, only four hectares more or less, corresponding to 60% to 70% was developed).
The appellate court thus held that all these violations are recognized grounds for the termination and
cancellation of a fishpond lease agreement under Section 9 of the FAO No. 125, series of 1979. As a last
note, the subject decision stated that it mainly deals with the validity of the cancellation by the Ministry
of Agriculture and Food of petitioner’s Fishpond Lease Agreement No. 3090 for violation of the terms
thereof and/or fisheries rules, and that a decision in Civil Case No. 2085 which is a possessory action has
hardly any bearing in the resolution of the aforestated appeal.

True, the subject July 31, 1989 decision was rendered a few days after the trial court handed down its
decision ordering herein petitioner to be restored to the possession of the subject fishpond area.
However, such fact is of no moment considering that said decision of the trial court did not attain finality
and was seasonably appealed. In other words, the July 31, 1989 decision was rendered while Civil Case
No. 2085 was pending appeal. It is thus proper to consider the same a supervening event the existence
of which cannot just be disregarded by the appellate court.

What is the nature of the July 31, 1989 Malacañang decision and what is its effect on the resolution of
Civil Case No. 2085? The action of an administrative agency in granting or denying, or in suspending or
revoking, a license, permit, franchise, or certificate of public convenience and necessity is administrative
or quasi-judicial. The act is not purely administrative but quasi-judicial or adjudicatory since it is
dependent upon the ascertainment of facts by the administrative agency, upon which a decision is to be
made and rights and liabilities determined (De Leon, Administrative Law: Text and Cases, 1993 ed., pp.
143-144). As such, the July 31, 1989 decision of the Office of the President is explicitly an official act of
and an exercise of quasi-judicial power by the Executive Department headed by the highest officer of
the land. It thus squarely falls under matters relative to the executive department which courts are
mandatorily tasked to take judicial notice of under Section 1, Rule 129 of the Rules of Court. Judicial
notice must be taken of the organization of the Executive Department, its principal officers, elected or
appointed, such as the President, his powers and duties (Francisco, Evidence [Rules 128-134], 1996 ed.,
p. 24, citing Canal Zone v. Mena, 2 Canal Zone 170).chanrob1es virtua1 1aw 1ibrary

The rendition of the subject July 31, 1989 Malacañang decision is premised on the essential function of
the executive department — which is to enforce the law. In this instance, what is being enforced is
Presidential Decree No. 704 which consolidated and revised all laws and decrees affecting fishing and
fisheries. Such enforcement must be true to the policy behind such laws which is "to accelerate and
promote the integrated development of the fishery industry and to keep the fishery resources of the
country in optimum productive condition through proper conservation and protection" (Section 2, P.D.
No. 704).

53
Further, the issue of whether or not petitioner is still entitled to possession of the subject fishpond area
is underpinned by an ascertainment of facts. And such task belongs to the administrative body which
has jurisdiction over the matter — the Ministry of Agriculture and Food. The policy of the courts as
regards such factual findings is not to interfere with actions of the executive branch on administrative
matters addressed to the sound discretion of government agencies. This policy is specially applicable in
the grant of licenses, permits, and leases, or the approval, rejection, or revocation of applications
therefor (Manuel v. Villena, 37 SCRA 745 [1971]). Such respect is based on the time-honored doctrine of
separation of powers and on the fact that these bodies are considered co-equal and coordinate rank as
courts. The only exception is when there is a clear showing of capricious and whimsical exercise of
judgment or grave abuse of discretion, which we find absent in the case at bar.

The reasons given by the Office of the President in dismissing petitioner’s appeal are quite clear.
Transferring or subletting the fishpond granted to a licensee without the consent or approval of the
administrative body concerned, as well as the failure to develop the area required by the fisheries rules,
are definitely solid and logical grounds for the cancellation of one’s license. Withal, if petitioner
disagrees with the decision of the Office of the President, he should have elevated the matter by
petition for review before the Court of Appeals for the latter’s exercise of judicial review. Nowhere in
the record do we find such action on petitioner’s part.

Understandably, to restore petitioner to the possession of the fishpond area is to totally disregard the
July 31, 1989 decision of the Office of the President which can hardly be described as an unrelated
matter, considering its patent implications in the result of both Civil Case No. 2085 and CA-G.R. CV No.
23165. For how could the appellate court award possession to the very same party whose license has
been cancelled by the executive or administrative officer tasked to exercise licensing power as regards
the development of fishpond areas, and which cancellation has been sustained by the Office of the
President? Petitioner must remember the essence of the grant of a license. It is not a vested right given
by the government but a privilege with corresponding obligations and is subject to governmental
regulation. Hence, to allow petitioner to possess the subject area is to run counter to the execution and
enforcement of the July 31, 1989 decision which would easily lose its "teeth" or force if petitioner were
restored in possession. In addition, as pointed out in the July 31, 1989 decision, petitioner is not
assailing the May 14, 1985 order of Minister Escudero which gave private respondent priority in applying
for the subject area and which considered respondent’s improvements thereon as not forfeited in favor
of the government. In this regard, the July 31, 1989 decision stated:chanrob1es virtua1 1aw 1ibrary

The Escudero Order of May 14, 1985 stands unchallenged. As such, the herein appeal of Sañado, Et Al.,
from the Escudero Order of January 25, 1985 remains the only obstacle, on the administrative level, to
the said May 14, 1985 Order being considered in force and effect.

(p. 50, Rollo.)

Accordingly, the Court of Appeals correctly held —

. . . The issue (on waiver of rights and interests and participation by respondent) is rendered moot and
academic by the order of then MAF Minister Salvador H. Escudero III cancelling Fishpond Lease
Agreement No. 3090 of plaintiff-appellee which was affirmed on appeal by the Office of the President.
The lease agreement having been cancelled, possession of the fishpond area covered by the lease
agreement cannot be returned to plaintiff-appellee even if the waiver of rights, interests, and
participation is held null and void . . .

(p. 31, Rollo.)

In addition, petitioner considers the July 31, 1989 decision a foreign matter which was not raised in the
court below and hence should not have been treated by the Court of Appeals with legal force and effect.
To reiterate, petitioner also notes that the decision of the Office of the President is dated July 31, 1989,
whereas the decision of Civil Case No. 2085 was rendered June 19, 1989. Further, petitioner argues that
the subject decision of the Office of the President was merely incidental to the propriety or impropriety
of the issuance of a writ of preliminary mandatory injunction to restore private respondent to the

54
possession of the fishpond area after a writ of execution was issued by the trial court in favor of
petitioner.

Rules of fair play, justice, and due process dictate that parties cannot raise for the first time on appeal
issues which they could have raised but never did during the trial (Reburiano v. Court of Appeals, 301
SCRA 342 [1999]). Significantly, private respondent could have not been expected to present the July 31,
1989 decision during the trial because it was obviously not yet extant during that time. But one thing is
for sure, petitioner knew that there was a pending administrative case (O.P. Case No. 2958) on the
subject fishpond area. He knew about the appeal since he was precisely the one who filed it, challenging
the January 28, 1985 order of then Minister Escudero which cancelled Fishpond Lease Agreement No.
3090. Hence, the presentation of the July 31, 1989 decision before the appellate court had caused no
undue surprise upon petitioner who, we repeat, was the one who filed the appeal.

Verily, the trial court’s decision of July 19, 1989 did not attain finality. It was appealed within the
reglementary period. If the court could modify or alter a judgment even after the same has become
executory whenever circumstances transpire rendering its decision unjust and inequitable, as where
certain facts and circumstances justifying or requiring such modification or alteration transpired after
the judgment has become final and executory (David v. Court of Appeals, 316 SCRA 710 [1999]) and
when it becomes imperative in the higher interest of justice or when supervening events warrant it
(People v. Gallo, 315 SCRA 461 [1999]), what more if the judgment has not yet attained
finality?chanrob1es virtua1 1aw 1ibrary

It is thus plain in the case at bar that the July 31, 1989 decision of the Office of the President is a
substantial supervening event which drastically changed the circumstances of the parties to the subject
fishpond lease agreement. For to award possession to petitioner is futile since he has lost the fishpond
license. In point is our ruling in Baluyot v. Guiao (315 SCRA 396 [1997]) where we held that judgment is
not confined to what appears on the face of the decision, but also covers those necessarily included
therein or necessary thereto. For example, where the ownership of a parcel of land is decreed in the
judgment, the delivery of the possession of the land should be considered included in the decision, it
appearing that the defeated party’s claim to the possession thereof is based on his claim of ownership.
By analogy, the July 31, 1989 decision, is not confined to the validity of the cancellation by the Ministry
of Agriculture and Food of petitioner’s Fishpond Lease Agreement No. 3090 for violation of the terms
thereof and/or the fisheries rules. The right to possess the subject fishpond area is necessarily included
in the decision. The cancellation or revocation of petitioner’s license necessarily eliminated his right to
possess the same since the new licensee would then be the one to enjoy this right.chanrob1es virtua1
1aw 1ibrary

WHEREFORE, the instant petition is hereby DENIED for lack of merit. The September 11, 1992 decision of
the Court of Appeals in CA-G.R. CV No. 23165 is hereby AFFIRMED.

SO ORDERED.

Vitug, Panganiban, Gonzaga-Reyes and Sandoval-Gutierrez, JJ., concur.

G.R. No. 145169 May 13, 2004

SIENA REALTY CORPORATION, as represented by LYDIA CO HAO and LILIBETH MANLUGON, petitioner,
vs.
HON. LOLITA GAL-LANG, as Presiding Judge of the RTC of Manila, Branch 44; ANITA CO NG in trust for
ROCKEFELLER NG; and the COURT OF APPEALS, SPECIAL 13th DIVISION, respondents.

DECISION

CARPIO MORALES, J.:

Challenged via petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Court is the
September 13, 2000 Resolution of the Court of Appeals in C.A.-G.R. SP No. 59096, Siena Realty

55
Corporation, as represented by Lydia Co Hao and Lilibeth Manlugon v. Hon. Lolita O. Gal-lang, as
Presiding Judge of Br. 44 of the RTC of Manila, and Anita Co Ng in trust for Rockefeller Ng.

Since the petition attributes grave abuse of discretion on the part of the Court of Appeals in the issuance
of subject resolution, what should have been filed was one for certiorari under Rule 65. On this score
alone, the petition must be denied due course.

But even if technicality were set aside, just the same the petition fails.

Petitioners filed a petition for certiorari before the Court of Appeals on June 7, 2000 or allegedly on the
60th day from their receipt of the March 23, 2000 Order of Branch 44 of the Manila Regional Trial
Court denying their motion for Reconsideration of said court’s Order dismissing, on motion of private
respondent, their complaint.

The Court of Appeals, by Resolution1 of June 20, 2000, dismissed petitioner’s petition for certiorari,
however, for being filed out of time, it holding that:

Per records, it appears that petitioners had only until May 29, 2000 within which to file the
Petition for Certiorari considering the following:

1. Petitioners received a copy of the October 20, 1999 Order denying their [counsel’s]
Notice of Withdrawal [and likewise denying petitioners’ Motion for Reconsideration of
the Order dismissing their complaint] on November 8, 1999;

2. Petitioners filed a motion for reconsideration of the October 20, 1999 Order on
November 17, 1999; and that

3. Petitioners received a copy of the March 23, 2000 Order denying their motion for
reconsideration on April 8, 2000.

The instant petition was filed on June 7, 2000 or nine (9) days late.

Thus, for being belatedly filed, the instant petition is hereby DISMISSED.

Petitioners thereupon filed (on July 10, 2000) a motion for reconsideration2 of the above-said June 20,
2000 Order of the appellate court.

In the meantime, this Court issued in A.M. No. 00-2-03-SC (Reglamentary Period to File Petitions for
Certiorari and Petition for Review on Certiorari) a Resolution dated August 1, 2000 approving the
amendment to the following provision of Section 4, Rule 65 of the 1997 Rules of Civil Procedure:

SECTION 4. Where petition filed. – The petition may be filed not later than sixty (60) days from
notice of the judgment, order, resolution sought to be assailed in the Supreme Court or, if it
relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in
the Regional Trial Court exercising jurisdiction over the territorial area as defined by the
Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of
its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless
otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by
the Court of Appeals.

If the petitioner had filed a motion for new trial or reconsideration after notice of said
judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is
denied, the aggrieved party may file the petition within the remaining period, but which shall
not be less than five (5) days in any event, reckoned from notice of such denial. No extension
of time shall be granted except for the most compelling reason and in no case to exceed
fifteen (15) days. (Emphasis and underscoring supplied)

The amendment to Sec. 4, Rule 65, which took effect on September 1, 2000, reads:

56
 SECTION 4. When and where petition filed. – The petition shall be filed not later than sixty (60)
days from notice of the judgment, order or resolution. In case a motion for reconsideration or
new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall
be counted from notice of the denial of the said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a
lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the
Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the
Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a
quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed
in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason and in no
case exceeding fifteen (15) days. (Emphasis and underscoring supplied)

The Court of Appeals, acting on petitioners’ Motion for Reconsideration of its Order of June 20, 2000,
denied, by Resolution of September 13, 2000,3 said motion in this wise:

xxx

From the argument espoused by petitioners’ counsel, it appears that he overlooked the
provision of second paragraph of Sec. 4, Rule 65 of the 1997 Rules of Civil Procedure as
amended per Supreme Court Circular dated July 21, 1998, which provides as follows:

"If the petitioner had filed a motion for new trial or reconsideration after notice of said
judgment, order or resolution, the period herein fixed shall be interrupted. If the motion
is denied, the aggrieved party may file the petition within the remaining period, but
which shall not be less than five (5) days in any event, reckoned from notice of such
denial. No extension of time shall be granted except for the most compelling reason and
in no case to exceed fifteen (15) days."

Verily, the sixty (60) day period within which to file a Petition for Certiorari is not counted from
the date of the receipt of the denial of Motion for Reconsideration, but from the date of the
receipt of the questioned order or decision, except that such 60-day period is interrupted upon
the filing of a Motion for Reconsideration.

WHEREFORE, for reason above-stated, the instant motion is DENIED. Consequently, the present
Petition for Certiorari is DISMISSED with finality. (Underscoring supplied)

Hence, the petition at bar, petitioners challenging the September 13, 2000 Resolution of the appellant
court as having been

. . . ISSUED WITH GRAVE ABUSE OF DISCRETION AS IT WAS MADE WITHOUT TAKING PRIOR
JUDICIAL NOTICE OF SUPREME COURT A.M. NO. 00-2 - 03 SC WHICH RESOLUTION TOOK EFFECT
ON SEPTEMBER 1, 2000, AND WHICH AMENDED THE SECOND PARAGRAPH OF SECTION 4, RULE
65 OF THE 1997 RULES OF CIVIL PROCEDURE.4 (Underscoring supplied)

Petitioner’s argument is well-taken.

Section 1, Rule 129 of the Rules on Evidence reads:

SECTION 1. Judicial notice, when mandatory. – A court shall take judicial notice, without the
introduction of evidence, of the existence and territorial extent of states, their political history,
forms of government and symbols of nationality, the law of nations, the admiralty and maritime
courts of the world and their seals, the political constitution and history of the Philippines, the
official acts of the legislative, executive and judicial departments of the Philippines, the laws of

57
 nature, the measure of time, and the geographical divisions. (Emphasis and underscoring
supplied)

Even if petitioner did not raise or allege the amendment in their motion for reconsideration before it,
the Court of Appeals should have taken mandatory judicial notice of this Court’s resolution in A.M.
Matter No. 00-02-03 SC. The resolution did not have to specify that it had retroactive effect as it
pertains to a procedural matter. Contrary to private respondent’s allegation that the matter was no
longer pending and undetermined, the issue of whether the petition for certiorari was timely filed was
still pending reconsideration when the amendment took effect on September 1, 2000, hence, covered
by the its retroactive application.

The amendatory rule in their favor notwithstanding, petitioners’ petition fails as stated early on. The
order of the trial court granting private respondent’s Motion to Dismiss the complaint was a final, not
interlocutory, order and as such, it was subject to appeal,5 not a petition for certiorari. At the time
petitioners filed before the appellate court their petition for certiorari on the 60th day following their
receipt of the October 20, 1999 Order of the trial court denying their Motion for Reconsideration of its
dismissal order, the said October 20, 1999 Order had become final and executory after the 15th day
following petitioners’ receipt thereof.

WHEREFORE, the instant petition is, in light of the foregoing discussions, hereby DENIED.

SO ORDERED.

Republic vs CA, 277 SCRA 633, 641 (1997)

”Judicial notice will be taken of the record, pleading or judgment of a case in another court between the
same parties or involving one of the same parties as well as of the record of another case between
different parties in the same court. Judicial notice will also be taken of court personnel.”

Facts:
Josefa Gacot claimed a parcel of land, the area of which is not indicated, in Palawan. Gacot claims that
she has been in actual possession of the property for more than 30 year and bought the land from
Cipriana Dantic-Llanera by virtue of a deed of sale and introduced improvement thereon and paid taxes
for the land in her name. It appears that a certain Ceferino Sabenacio is a co-owner of the land who later
waived his claim in favor of Gacot and admitted that he was only a boundary owner of the land and it
was Gacot who is in actual possession of it. Prior to the hearing, the Land Registration Authority
intervened, calling the attention of the court on the decision made by Judge Lorenzo Garlitos declaring
the property as owned by the Republic. However, it did not bar Gacos from filing her answer, presenting
evidence of her actual possession of the said property and tax declaration and payment made in her
name. The counsel of the petitioner did not present evidence and submitted the case for resolution.

The court rendered a decision in favor of Gacot thus the Solicitor General elevated the case to the CA
and filed a motion for the court to reopen and remand the case back to the trial court to allow the
Republic to present the decision of Judge Garlitos which motion was granted by the court. The hearing
was set several times and Gacot was able to submit her memorandum while the Republic was unable to
submit any evidence to support the claim of the government in court. For failure of the government to
refute and to present their evidence contrary to Gacot’s claim, the court decided not to disturb its
former decision.

The Republic assailed the decision of the court invoking 2061 that set the time limit of filing an
application for the reopening of judicial proceedings on certain lands declared as public land, a provision
thereof provides that the application for judicial proceeding should not extend beyond Dec. 31, 1968.
Gacot only filed her claim on June 7, 1971 thus the court did not acquired jurisdiction on her claim as
she did not file her answer within the period fixed by RA 2061.

58
Issue: Whether or not the court has acquired jurisdiction over the case?

Ruling:
The Court held that what the Solicitor General claims would have been operative if it were able to
present evidence during the rehearing of the case proving the alleged decision of Judge Garlitos
declaring the property as public land. However they failed to offer evidence on their claim and the court
cannot take judicial notice of such claim in the absence of any proof presented before the court. The
appellate court remanded the case back to the trial court to allow the Republic to present evidence
which they failed to do.

It is a settled rule that the court shall not consider evidence that has not been formally offered before it.
The court cannot take judicial knowledge of the contents of the record of other cases, in the
adjudication of the cases pending before them even if the trial judge knows or remember the contents
thereof. While the case is on trial, Josefa Gacot passed away and her heirs were impleaded to substitute
her as the party to the case. The court held to lax on the technical rules of procedure in the case and to
expedite the proceeding take a liberal construction on the laws to meet advance the cause of substantial
justice. Because the lot area awarded to Gacot was not specified in the records and based on the
certification of the Forest Management Services of the Department of Environment and Natural
Resources, some of the lots in the area are classified as alienable and disposable land, while some
portion are timber land that forms part of the Mangrove Swamp Forest Reserve. The court decided to
remand back to the trial court the case for proper disposition of the conflicting claims of the parties.

G.R. No. 142295 May 31, 2001

VICENTE DEL ROSARIO y NICOLAS, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

PARDO, J.:

Petitioner Vicente del Rosario y Nicolas appeals via certiorari from a decision of the Court of
Appeals1 affirming with modification the decision of the Regional Trial Court, Bulacan, Branch 20,
Malolos, and finding him guilty beyond reasonable doubt of violation of P. D. No. 1866, as amended, by
Republic Act No. 8294 (illegal possession of firearms), sentencing him to four (4) years, nine (9) months
and eleven (11) days of prision correccional, as minimum, to six (6) years, eight (8) months and one (1)
day of prision mayor, as maximum, and to pay a fine of P30,000.00.1âwphi1.nêt

On June 17, 1996, Assistant Provincial Prosecutor Eufracio S. Marquez of Bulacan filed with the Regional
Trial Court, Bulacan, Malolos an Information charging petitioner Vicente del Rosario y Nicolas with
violation of P. D. No. 1866, as follows:

"That on or about the 15th day of June 1996, in the municipality of Norzagaray, Province of
Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, did then and there wilfully, unlawfully and feloniously have in his possession under his
custody and control, the following, to wit:

"a) One (1) pc. Pistol Cal. 45 SN:70G23792 (w/o license)

"b) One (1) pc. Revolver Cal. 22 SN:48673 (w/o license)

"c) Twenty Seven (27) rds live ammos. For cal. .45

"d) Five (5) pcs. Magazines for cal. .45

"e) Eight (8) rds live ammunitions for cal. 22

"f) Five (5) pcs. Magazines short for cal. 5.56 (M16)

59
 "g) Twenty (20) rds live ammunitions for cal 5.56.

"without first having obtained" a proper license therefor.

"Contrary to law."2

On June 25, 1996, the trial court arraigned the petitioner. He pleaded not guilty.3 Trial ensued.

The facts, as found by the Court of Appeals, are as follows:

"Sometime in May 1996, the police received a report that accused-appellant Vicente del Rosario
was in possession of certain firearms without the necessary licenses. Acting upon the report,
P/Sr. Insp. Jerito Adique of the PNP Criminal Investigation Group at Camp Olivas, Pampanga
inquired from the PNP Firearms and Explosive Division "whether or not the report was true. On
May 10, 1996, P/Sr. Insp. Edwin C. Roque of the PNP Firearms and Explosives Division issued a
certification (Exhibit L) stating that per records in his office, the appellant is not a
licensed/registered firearm holder of any kind and caliber. Armed with the said certification,
P/Sr. Insp. Adique applied for a search warrant to enable his team to search the house of
appellant.1âwphi1.nêt

"On June 13, 1996, a search warrant (Exhibit A) was issued by Judge Gil Femandez, Sr. of the
Regional Trial Court of Quezon City, Branch 217, authorizing the search of the residence of
appellant at Barangay Tigbe, Norzagaray, Bulacan.4 On June 15, 1996, at about 7:00 o'clock in
the morning, a team led by P/Sr. Insp. Adique went to Norzagaray to serve the warrant. Before
proceeding to the residence of the appellant, the police officers requested Barangay Chairman
Rogelio de Silva and Barangay Councilman Aurelio Panteleon to accompany them in the
implementation of the warrant. Upon arrival at the house of appellant, the police officers
introduced themselves to the wife of appellant. When the appellant came out, P/Sr. Insp.
Adique informed him that they had a search warrant and that they were authorized to search
his house. After appellant gave his permission, the police officers conducted a search of the
house. The search yielded the following items: (a) a caliber .45 pistol with Serial No. 703792 with
five magazines of caliber .45 (Exhibits B and H) found at the master's bedroom; (b) five
magazines of 5.56 M-16 rifle and two radios (Exhibits C to C-4) found in the room of appellant's
daughter; and (c) a caliber .22 revolver with Serial No. 48673 (Exhibit F) containing 8 pieces of
live ammunition (Exhibit M) found in the kitchen of the house. When asked about his license to
possess the firearms, the appellant failed to produce any. This prompted the police officers to
seize the subject firearms.

"SPO2 Marion Montezon, one of the searching officers, prepared three separate inventories of
the seized items (Exhibits H, M and N). The inventories were signed by P/Sr. Insp. Adique, the
appellant and the barangay officials who witnessed the search. Thereafter SPO2 Montezon
prepared a certification of orderly search (Exhibit I) which was signed by the appellant and the
barangay officials attesting to the orderly conduct of the search.

"For his defense, appellant contends that he had a license for the caliber .45 pistol recovered in
his bedroom and that the other items seized during the search including the caliber .22 revolver,
were merely planted by the police officers. Appellant likewise assails the manner in which the
search was carried out, claiming that the police officers just barged into his house without
asking permission. Furthermore, he claimed that the barangay officials arrived only after the
police already had finished the search.

"After trial and on July 2, 1998, the trial court rendered a judgment of conviction, the dispositive
portion of which reads:

"WHEREFORE, premises considered, the Court finds the accused VICENTE DEL ROSARIO
y NICOLAS guilty beyond reasonable doubt of violation of P. D. No. 1866 as charged
under the Information dated June 17, 1996.

60
 "Conformably with the provisions of said law, as amended by Republic Act No. 8294,
and pursuant to the provisions, of the Indeterminate Sentence Law, the Court hereby
sentences the accused to suffer imprisonment of six (6) months of arresto mayor, as
minimum, to six (6) years of prision correctional, as maximum, and to pay a fine of
Fifteen. Thousand Pesos (P15,000.00).

On July 20, 1998, petitioner appealed to the Court of Appeals, assailing the decision for being contrary
to facts and the law.6

On July 9, 1999, the Court of Appeals promulgated its decision affirming with modification the decision
of the trial court as set out in the opening paragraph of this decision.7

On August 10, 1999, petitioner filed with the Court of Appeals a motion for reconsideration and/or new
trial.8 He contended that the certification issued by the Chief, Firearms and Explosives Division,
Philippine National Police stating that the person named therein had not been issued a firearm license
referred to a certain Vicente "Vic" del Rosario of barangay Bigte, Norzagaray, Bulacan, not to him. He
comes from barangay Tigbe, Norzagaray, Bulacan, and that he has a valid firearm license.

On February 22, 2000, the Court of Appeals denied the motion for reconsideration for lack of merit.9

Hence, this appeal.10

Petitioner submits that the search conducted at his residence was illegal the search warrant was issued
in violation of the Constitution11 and consequently, the evidence seized was inadmissible. He also
submits that he had a license for the .45 caliber firearm and ammunition seized in his bedroom. The
other firearm, a .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for 5.56
mm. cal. Armalite rifle, and two 2-way radios found in his daughter's bedroom, were either planted by
the police or illegally seized, as they were not mentioned in the search warrant.

We find the petition impressed with merit. We define the issues as follows:

First: whether petitioner had a license for the .45 caliber Colt pistol and ammunition seized in his
bedroom; and

Second: whether the .22 caliber revolver seized in a drawer at the kitchen of his house, a magazine for
5.56 mm. cal. Armalite rifle and two 2-way radios found in his daughter's bedroom, were planted by the
police or were illegally seized.

We shall resolve the issues in seriatim.

First: The .45 cal. Colt pistol in question was duly licensed.

Normally, we do not review the factual findings of the Court of Appeals and the trial courts.12 However,
this case comes within the exceptions.13 The "findings of fact by the Court of Appeals will not be
disturbed by the Court unless these findings are not supported by evidence."14 In this case, the findings
of the lower courts even directly contradict the evidence. Hence, we review the evidence. The trial court
held that the copy of the license presented was blurred, and that in any event, the court could rely on
the certification dated May 10, 1996, of P/Sr. Inspector Edwin C. Roque, Chief, Records Branch, Firearms
and Explosives Division, Philippine National Police stating that Vicente "Vic" del Rosario of
Barangay Bigte, Norzagaray, Bulacan is not a licensed/registered firearm holder of any kind and
caliber.15 As against this, petitioner submitted that he was not the person referred to in the said
certification because he is Vicente del Rosario y Nicolas from Barangay Tigbe, Norzagaray, Bulacan. The
Court takes judicial notice of the existence of both barangay Tigbe and barangay Bigte, in Norzagaray,
Bulacan.16 In fact, the trial court erred grievously in not taking judicial notice of the barangays within its
territorial jurisdiction, believing the prosecution's submission that there was only barangay Tigbe, and
that barangay Bigte in the certification was a typographical error.17 Petitioner presented to the head of
the raiding team, Police Senior Inspector Jerito A. Adique, Chief, Operations Branch, PNP Criminal
Investigation Command, a valid firearm license. The court is duty bound to examine the evidence

61
assiduously to determine the guilt or innocence of the accused. It is true that the court may rely on the
certification of the Chief, Firearms and Explosives Division, PNP on the absence of a firearm
license.18 However, such certification referred to another individual and thus, cannot prevail over a valid
firearm license duly issued to petitioner. In this case, petitioner presented the printed computerized
copy of License No. RCL 1614021915 issued to him on July 13, 1993, expiring in January 1995, by the
Chief, Firearms and Explosives Division, PNP under the signature of Reynaldo V. Velasco, Sr. Supt. (GSC)
PNP, Chief, FEO.19 On the dorsal side of the printed computerized license, there is stamped the words
"Validity of computerized license is extended until renewed license is printed" dated January 17, 1995,
signed by Police Chief Inspector Franklin S. Alfabeto, Chief, Licence Branch, FEO.20 Coupled with this
indefinite extension, petitioner paid the license fees for the extension of the license for the next two-
year period.21

Consequently, we find that petitioner was the holder of a valid firearm license for the .45 caliber Colt
pistol seized in the bedroom of his house on June 15, 1996.22 As required, petitioner presented the
license to the head of the raiding team, Police Senior Inspector Jerito A. Adique of the Criminal
Investigation Division Group, PNP.23 As a senior police officer, Senior Inspector Adique could easily
determine the genuineness and authenticity of the computerized printed license presented. He must
know the computerized license printed form. The stamp is clearly visible. He could decipher the words
and the signature of the authorized signing official of the Firearms and Explosives Division, PNP. He
belonged to the same national police organization.

Nevertheless, Senior Insp. Adique rejected the license presented because, according to him, it was
expired. However, assuming that the license presented was expired during the period January 1995 to
January 1997, still, possession of the firearm in question, a .45 caliber Colt pistol with serial No.
70G23792, during that period was not illegal. The firearm was kept at home, not carried outside
residence. On June 15, 1996, at the time of the seizure of the firearm in question, possession of firearm
with an expired license was not considered unlawful, provided that the license had not been cancelled
or revoked. Republic Act No. 8294, providing that possession of a firearm with an expired license was
unlawful took effect only on July 7, 1997.24 It could not be given retroactive effect.25

According to firearm licensing regulations, the renewal of a firearm license was automatically applied for
upon payment of the license fees for the renewal period. The expired license was not cancelled or
revoked. It served as temporary authority to possess the firearm until the renewed license was issued.
Meantime, the applicant may keep the gun at home pending renewal of the firearm license and issuance
of a printed computerized license. He was not obliged to surrender the weapon. Printed at the dorsal
side of the computerized license is a notice reading:

"IMPORTANT

1. This firearm license is valid for two (2) years. Exhibit this license whenever demanded by
proper authority.

2. Surrender your firearm/s to the nearest PNP Unit upon revocation or termination of this
license. Under any of the following instances, your license shall be revoked for which reason
your firearm/s is/are subject to confiscation and its/their forfeiture in favor of the government.

a. Failure to notify the Chief of PNP in writing of your change of address, and/or qualification.

b. Failure to renew this license by paying annual license, fees, within six (6) months from your
birth month. Renewal of your license can be made within your birth month or month
preceding your birth month. Late renewal shall be penalized with 50% surcharge for the first
month (from the first day to the last day of this month) followed by an additional 25% surcharge
for all of the succeeding five (5) months compounded monthly.

c. Loss of firearm/s through negligence.

d. Carrying of firearm/s outside of residence without appropriate permit and/or carrying

firearm/s in prohibited places.

62
 e. Conviction by competent court for a crime involving moral turpitude or for any offense where
the penalty carries an imprisonment of more than six (6) months or fine of at least Pl,000.00.

f. Dismissal for cause from, the service.

g. Failure to sign license, or sign ID picture or affix right thumb mark.

3. Unauthorized loan of firearm/s to another person is punishable by permanent disqualification

and forfeiture of the firearm in favor of the government.

4. If termination is due to death, your next of kin should surrender your firearm/s to the nearest
PNP Unit. For those within Metro, Manila, surrender should be made with FEO, Camp Crame.

5. When firearms become permanently unserviceable, they should be deposited with the
nearest PNP Unit and ownership should be relinquished in writing so that firearms may be
disposed of in accordance with law.

6. Application for the purchase of ammunition should be made in case of a resident of Metro
Manila direct to the Chief, FEO and for residents of a Province to secure recommendation letter
to the nearest PNP Provincial Command who will thereafter endorse same to CHIEF, FEO for
issuance of the permit. License must be presented before an authority to purchase ammo could
be obtained."26

Indeed, as heretofore stated, petitioner duly paid the license fees for the automatic renewal of the
firearm license for the next two years upon expiration of the license in January, 1995, as evidenced by
official receipt No. 7615186, dated January 17, 1995.27 The license would be renewed, as it was, because
petitioner still possessed the required qualifications. Meantime, the validity of the license was extended
until the renewed computerized license was printed. In fact, a renewed license was issued on January 17,
1997, for the succeeding two-year period.28

Aside from the clearly valid and subsisting license issued to petitioner, on January 25, 1995, the Chief,
Philippine National Police issued to him a permit to carry firearm outside residence valid until January 25,
1996, for the firearm in question.29 The Chief, Philippine National Police would not issue a permit to
carry firearm outside residence unless petitioner had a valid and subsisting firearm license. Although the
permit to carry firearm outside residence was valid for only one year, and expired on January 25, 1996,
such permit is proof that the regular firearm license was renewed and subsisting within the two-year
term up to January 1997." A Permit to Carry Firearm Outside Residence presupposes that the party to
whom it is issued is duly licensed to possess the firearm in question."30 Unquestionably, on January 17,
1997, the Chief, Firearms and Explosives Division, PNP renewed petitioner's license for the .45 cal. Colt
pistol in question.31

Clearly then; petitioner had a valid firearm license during the interregnum between January 17, 1995, to
the issuance of his renewed license on January 17, 1997.

Finally, there is no rhyme or reason why the Court of Appeals and the trial court did not accept with
alacrity the certification dated June 25, 1996, of P/Sr. Inspector Edwin C. Roque,32 Chief, Records Branch,
Firearms and Explosives Division, PNP that Vicente N. del Rosario of Barangay Tigbe, Norzagaray,
Bulacan is a licensed/registered holder of Pistol, Colt caliber .45 with serial number 70G23792, covered
by computerized license issued dated June 15, 1995, with an expiry date January 1997.33 Reinforcing the
aforementioned certification, petitioner submitted another certification dated August 27, 1999, stating
that Vicente N. del Rosario of Barangay Tigbe, Norzagaray, Bulacan, was issued firearm license No. RL-
C1614021915, for caliber .45 Pistol with Serial Number 70G23792, for the years covering the period
from July 13, 1993 to January 1995, and the extension appearing at the back thereof for the years 1995
to 1997.34 Had the lower courts given full probative value to these official issuances, petitioner would
have been correctly acquitted, thus sparing this Court of valuable time and effort.

"In crimes involving illegal possession of firearm, the prosecution has the burden of proving the
elements thereof, viz.: (a) the existence of the subject firearm and (b) the fact that the accused who

63
owned or possessed it does not have the license or permit to possess the same.35 The essence of the
crime of illegal possession is the possession, whether actual or constructive, of the subject firearm,
without which there can be no conviction for illegal possession. After possession is established by the
prosecution, it would only be a matter of course to determine whether the accused has a license to
possess the firearm."36 "Possession of any firearm becomes unlawful only if the necessary permit or
license therefor is not first obtained. The absence of license and legal authority constitutes an essential
ingredient of the offense of illegal possession of firearm and every ingredient or essential element of an
offense must be shown by the prosecution by proof beyond reasonable doubt. Stated otherwise, the
negative fact of lack or absence of license constitutes an essential ingredient of the offense which the
prosecution has the duty not only to allege but also, to prove beyond reasonable doubt."37 "To convict
an accused for illegal possession of firearms and explosives under P. D. 1866, as amended, two (2)
essential elements must be indubitably established, viz.: (a) the existence of the subject firearm or
explosive which may be proved by the presentation of the subject firearm or explosive or by the
testimony of witnesses who saw accused in possession of the same, and (b) the negative fact that the
accused had no license or permit to own or possess the firearm or explosive which fact may be
established by the testimony or certification of a representative of the PNP Firearms and Explosives Unit
that the accused has no license or permit to possess the subject firearm or explosive." x x x We stress
that the essence of the crime penalized under P. D. 1866 is primarily the accused's lack of license or
permit to carry or possess the firearm, ammunition or explosive as possession by itself is not prohibited
by law."38 Illegal possession of firearm is a crime punished by special law, a malum prohibitum, and no
malice or intent to commit a crime need be proved.39 To support a conviction, however, there must be
possession coupled with intent to possess (animus possidendi) the firearm.40

In upholding the prosecution and giving credence to the testimony of police officer Jerito A. Adigui, the
trial court relied on the presumption of regularity in the performance of official duties by the police
officers.41 This is a flagrant error because his testimony is directly contradictory to the official records of
the Firearms and Explosives Division, PNP, which must prevail. Morever, the presumption of regularity
can not prevail over the Constitutional presumption of innocence.42 Right from the start, P/Sr. Insp.
Jerito A. Adigue was aware that petitioner possessed a valid license for the caliber .45 Colt pistol in
question. Despite this fact, P/Sr. Insp. Adigue proceeded to detain petitioner and charged him with
illegal possession of firearms. We quote pertinent portions of the testimony of petitioner:

Q: What else did Adigue tell you after showing to him the license of your cal. .45 pistol and
the alleged cal. .22 found in a drawer in your kitchen?

A: He told me that since my firearm is licensed, he will return my firearm, give him ten
thousand pesos (P10,000.00) and for me to tell who among the people in our barangay have
unlicensed firearm, sir.

Q: How did he say about the ten thousand pesos?

A: He said "palit kalabaw na lang tayo" sir.

Q: And what did you answer him?

A: I told him my firearm is licensed and I do not have money, if I have, I will not give him, sir,
because he was just trying to squeeze something from me.

Q: How about the unlicensed firearms in your barangay which he asked, from you?

A: I said I do not know any unlicensed firearm in our barangay, sir.

Q: About the .22 cal. pistol, what was your answer to him?

A: I told him that it was not mine, they planted it, sir.

Q: What did he say next?

64
 A: He said that it is your word against mine, the Court will believe me because I am a police
officer, sir.

Q: What was your comment to what he said?

A: I said my firearm is licensed and we have Courts of law who do not conform with officials
like you and then he laughed and laughed, sir."43

The trial court was obviously misguided when it held that "it is a matter of judicial notice that a
caliber .45 firearm can not be licensed to a private individual."44 This ruling has no basis either in law or
in jurisprudence.45

Second issue. The seizure of items not mentioned in the search warrant was illegal.

With respect to the .22 caliber revolver with Serial No. 48673, that the police raiding team found in a
drawer at the kitchen of petitioner's house, suffice it to say that the firearm was not mentioned in the
search warrant applied for and issued for the search of petitioner's house. "Section 2, Article III of the
Constitution lays down the general rule that a search and seizure must be carried out through or on the
strength of a judicial warrant, absent which such search and seizure becomes 'unreasonable' within the
meaning of said constitutional provision."46 "Supporting jurisprudence thus outlined the following
requisites for a search warrant's validity, the absence of even one will cause" its downright nullification:
(1) it must be issued upon probable cause; (2) the probable cause must be determined by the judge
himself and not by the applicant or any other person; (3) in the determination of probable cause, the
judge must examine, under oath or affirmation, the complainant and such witnesses as the latter may
produce; and (4) the warrant issued must particularly describe the place to be searched and persons or
things to be seized."47 Seizure is limited to those items particularly described in a valid search warrant.
Searching officers are without discretion regarding what articles they shall seize.48 Evidence seized on
the occasion of such an unreasonable search and seizure is tainted and excluded for being the proverbial
"fruit of a poisonous tree." In the language of the fundamental law, it shall be inadmissible in evidence
for any purpose in any proceeding.49

In this case, the firearm was not found inadvertently and in plain view. It was found as a result of a
meticulous search in the kitchen of petitioner's house. This firearm, to emphasize, was not mentioned in
the search warrant. Hence, the seizure was illegal.50 The seizure without the requisite search warrant
was in plain violation of the law and the Constitution.51 True that as an exception, the police may seize
without warrant illegally possessed firearm or any contraband for that matter, inadvertently found in
plain view. However, "[t]he seizure of evidence in 'plain view' applies only where the police officer is not
searching for evidence against the accused, but inadvertently comes across an incriminating
object."52 Specifically, seizure of evidence in "plain view" is justified when there is:

(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally
present in the pursuit of their official duties;

(b) the evidence was inadvertently discovered by the police who had the right to be where they
are.

(c) the evidence must be immediately apparent, and

(d) "plain view" justified mere seizure of evidence without further search.53

Hence, the petitioner rightly rejected the firearm as planted and not belonging to him. The prosecution
was not able to prove that the firearm was in the effective possession or control of the petitioner
without a license. In illegal possession of firearms, the possessor must know of the existence of the
subject firearm in his possession or control. "In People v. de Gracia,54 we clarified the meaning of
possession for the purpose of convicting a person under P. D. No.1866, thus: x x x 'In the present case, a
distinction should be made between criminal intent and intent to possess. While mere possession
without criminal intent is sufficient to convict a person for illegal possession of a firearm, it must still be
shown that there was animus possidendi or an intent to possess on the part of the accused.' x x x x

65
Hence, the kind of possession punishable under P. D. No. 1866 is one where the accused possessed a
firearm either physically or constructively with animus possidendi or intention to possess the
same."55 That is the meaning of animus possidendi. In the absence of animus possidendi, the possessor
of a firearm incurs no criminal liability.

The same is true with respect to the 5.56 cal. magazine found in the bedroom of petitioner's daughter.
The seizure was invalid and the seized items were inadmissible in evidence. As explained in People v.
Doria,56 the "plain view" doctrine applies when the following requisites concur: (1) the law if
enforcement officer is in a position where he has a clear view of a particular area or alias prior
justification for an intrusion; (2) said officer inadvertently comes across (or sees in plain view) a piece of
incriminating evidence; and (3) it is, immediately apparent to such officer that the item he sees may be
evidence of a crime or a contraband or is otherwise subject to seizure."

With particular reference to the two 2-way radios that the raiding policemen also seized in the bedroom
of petitioner's daughter, there was absolutely no reason for the seizure. The if radios were not
contraband per se. The National Telecommunications Commission may license two-way radios at its
discretion.57 The burden is on the prosecution to show that the two-way radios were not licensed. The
National Telecommunication Commission is the sole agency authorized to seize unlicensed two-way
radios. More importantly, admittedly, the two-way radios were not mentioned in the search warrant.
We condemn the seizure as illegal and a plain violation of a citizen's right. Worse, the petitioner was not
charged with illegal possession of the two-way radios.1âwphi1.nêt

Consequently, the confiscation of the two 2-way radios was clearly illegal. The possession of such radios
is not even included in the charge of illegal possession of firearms (violation of P. D. No. 1866, as
amended) alleged in the Information.

WHEREFORE, the Court hereby REVERSES the decision of the Court of Appeals in CA-G. R. CR No. 22255,
promulgated on July 09, 1999.

The Court ACQUITS petitioner Vicente del Rosario y Nicolas of the charge of violation of P. D. No. 1866,
as amended by R. A. No. 8294 (illegal possession of firearms and ammunition), in Criminal Case No. 800-
M-96, Regional Trial Court, Bulacan, Branch 20, Malolos.

Costs de oficio.

The Chief; Firearms and Explosives Division, PNP shall return to petitioner his caliber .45 Colt pistol, with
Serial Number No. 70023792, the five (5) extra magazines and twenty seven (27) rounds of live
ammunition, and the two 2-way radios confiscated from him. The Chief, Philippine National Police, or his
duly authorized representative shall show to this Court proof of compliance herewith within fifteen (15)
days from notice. The .22 caliber revolver with Serial No. 48673, and eight (8) live ammunition and the
magazine for 5.56 mm. caliber Armalite rifle are confiscated in favor of the government.1âwphi1.nêt

SO ORDERED.

Davide, Jr., Puno, Kapunan, Ynares-Santiago, JJ., concur.

G.R. Nos. 117485-86 April 22, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
MELCHOR ESTOMACA y GARQUE, accused-appellant.

REGALADO, J.:p

With our recent adjudgment in People vs. Alicando1 as a backdrop, even an initial perusal of the records
of these cases now before us on appeal and/or automatic review gives a sense of paramnesia or, in the

66
French term more often used, deja vu. One cannot escape the illusion of remembering events when
experienced for the first time, or of something overly or unpleasantly familiar in the present appellate
review.

Indeed, the courtroom dramatis personae in the cases at bar are the same as in Alicando, that is, the
presiding judge, 2 the government counsel de oficio,3 and the substitute counsel de parte. 4 The cases
likewise involve the heinous crime of rape and were repressed by the sentence of death. The crux of the
controversy in both is identically the validity vel non of the arraignment conducted by the same trial
court which followed closely equivalent procedures in conducting the questioned proceedings. Hence,
as will hereafter be demonstrated, the observations of this Court will also inevitably converge and move
along the same channels of thought.

On May 24, 1994, consequent to five separate complaints, Criminal Cases Nos. 43567, 43568, 43569,
43570 and 43571 were filed in the Regional Trial Court, Branch 38, Iloilo City charging herein appellant,
an illiterate laborer, with rape committed on five separate occasions against his own daughter,
complainant Estelita Estomaca.

The trial court detailed its findings and the prosecution's contentions on the multiple incestuous rapes,
as follows:

Melita is the eldest daughter of the accused, the second husband of Melita's mother.
Melita has a full-blood younger brother around twelve (12) years old. She has two (2)
half-blood sisters (from) the first marriage of her mother who are residing in Manila.

Melita claims that she was first raped in July 1993, at their residence at Barangay Tiolas,
San Joaquin, Iloilo. This is now the subject of Criminal Case No. 43567. The offense was
repeated by her father before Christmas of December, 1993 (Criminal Case No. 43568);
January 1994 (Criminal Case No. 43569); February 1994 (Criminal Case No. 43570); and
on March 6, 1994 (Criminal Case No. 43571).5

There is some inconsistency in the statements on record as to what actually took place on June 14, 1994
during the arraignment of appellant, assisted by his government counsel de oficio, Atty. Rogelio
Antiquiera. The decision of the court below, dated July 15, 1994, declares that he entered a plea of
guilty to Criminal Cases Nos. 43568 and 43571, and a plea of not guilty to Criminal Cases Nos. 43567,
43569 and 43570.6 Obviously engendered by the insufficiency of the proceedings conducted and the
imprecision of the notes taken at this stage, this matter will be further discussed hereafter.

The two criminal complaints, both subscribed by the offended party on April 29, 1994 and which are the
subject of the joint judgment of the lower court challenged in this appellate review, respectively allege:

Criminal Case No. 43568

That sometime in the month of December, 1993, in the Municipality of San Joaquin,
Province of Iloilo, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, taking advantage of his superior strength, abuse of confidence
and trust, he being the father of the undersigned, with deliberate intent and by means
of force, threat and intimidation, did then and there wilfully, unlawfully and feloniously
have sexual intercourse with the undersigned who, at that time, (was) 15 years of age.7

Criminal Case No. 43571

That on or about March 6, 1994, in the Municipality of San Joaquin, Province of Iloilo,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being the father of the undersigned complainant, with deliberate intent and by
means of force, threat and intimidation, did then and there wilfully, unlawfully and
feloniously have sexual intercourse (with) the undersigned, who, at that time, (was) 15
years of age. 8

67
Proceeding upon the capital nature of the offenses involved, the trial court, after appellant ostensibly
waived the presentation of evidence for his defense, required the prosecution to adduce evidence
purportedly to establish appellant's guilt beyond reasonable doubt. Thus, on June 29, 1994, the
complainant herself, Melita Estomaca, appeared in court and testified that she was raped by her father
once in December, 1993 and, again, on March 6, 1994. Both incidents, according to her, took place
inside their residence at Sitio
Tan-agan, Barangay Tiolas in San Joaquin, Iloilo at nighttime and that, on those two occasions, she tried
to resist her father's assaults to no avail. After the last rape, she gathered enough courage to flee from
their home, and thereafter she reported the incidents to her mother who was then living separately
from them. Apparently, appellant was later apprehended and has since been under detention.9

On the authority of Republic Act No. 7659 which took effect on December 31, 1993, the lower court
imposed upon appellant the penalty of reclusion perpetua for the sexual assault supposedly perpetrated
in December, 1993, and the supreme penalty of death with respect to the rape allegedly committed on
March 6, 1994. In each of the said cases, he was further ordered to indemnify the offended party in the
amount of P50,000.00 and to pay the costs. 10

What disconcerts this Court, however, is the alarming consistency of non-compliance by the court a
quo of the procedural rules to be observed for the validity of the arraignment of an accused. Indeed, the
importance of this particular stage of a criminal proceeding, especially when capital offenses are
involved, cannot be over-emphasized. Hence, we pause at this juncture to once again briefly expound
on this vital procedural aspect which the trial court, once in Alicando and again in the case at bar,
appears to have treated with cavalier disregard or frustrating misapprehension.

1. In People vs. A. Albert, 11 we traced the developmental antecedents which culminated and found
expression in reglementary form in Section 3, Rule 116 of the 1985 Rules on Criminal Procedure
governing a plea of guilty to a capital offense. We there pointed out that the rationale behind the rule is
that courts must proceed with more care where the possible punishment is in its severest form — death
— for the reason that the execution of such a sentence is irrevocable and experience has shown that
innocent persons have at times pleaded guilty. 12

We stressed the need to avoid improvident pleas of guilt since the accused may thereby forfeit his life
and liberty without having fully understood the meaning, significance and consequences of his
plea. 13 We lamented the confused application adopted or the apathetic indifference in the application
of said rule considering the paramount importance of a valid arraignment, it being the stage where the
issues are joined in the criminal action and without which the proceedings cannot advance further or, if
held, will otherwise be void. We then enjoined the trial courts to review and reflect upon the
jurisprudential and statutory rules which evolved over time in response to the injustice created by
improvident pleas acknowledging guilt, at times belatedly discovered under the judicial rug, if at all.

With exacting certitude, Section 1(a) of Rule 116 requires that the arraignment should be made in open
court by the judge himself or by the clerk of court furnishing the accused a copy of the complaint or
information with the list of witnesses stated therein, then reading the same in the language or dialect
that is known to him, and asking him what his plea is to the charge. The requirement that the reading be
made in a language or dialect that the accused understands and knows is a mandatory requirement, just
as the whole of said Section 1 should be strictly followed by trial courts. This the law affords the accused
by way of implementation of the all-important constitutional mandate regarding the right of an accused
to be informed of the precise nature of the accusation leveled at him and is, therefore, really an avenue
for him to be able to hoist the necessary defense in rebuttal thereof. 14 It is an integral aspect of the due
process clause under the Constitution.

2. For a more graphic illustration, and thereby a clearer appreciation of what actually transpired in the
so-called arraignment of appellant in the court below, we quote at length the pertinent transcripts of
the stenographic notes taken at that stage, with emphases on significant portions:

Pros. Nelson Geduspan : For the prosecution.

Atty. Rogelio Antiquiera : For the accused. Ready for arraignment.

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Court : The offended party is the daughter.

Interpreter : (Reading the information/complaint to the accused in

Ilonggo/local dialect).

For Crim. Case No. 43567,

the accused, pleads Guilty.
For Crim. Case No. 43568,
the accused, pleads Guilty.
For Crim. Case No. 43569,
the accused, pleads Guilty.
For Crim. Case No. 43570,
the accused, pleads Guilty.
For Crim. Case No. 43571,
the accused, pleads Guilty.

Court : What is your educational attainment?

Witness : I was not able to finish Grade I.

Court : The court would like to explain to you in your plea of Guilty. If
you plead Guilty to these five (5) offenses, definitely, you will have five
(5) sentences.

Accused : Yes, your honor.

Court : Under the New Law the least most probably would be life
sentence.

Accused : Yes, your honor.

Court : How old are you now?

Accused : Forty two.

Court : Because of this fact you have no chance to get back to the new
society and your rights will be affected.

Accused : I know. That's what they told to me.

Court : Despite of (sic) this fact you still insist on your plea of guilty in
these five cases?

Interpreter : According to him, he performed only two (2) acts.

Court : When (were) these two acts performed?

Accused : December 1993 and March 1994.

Court : The other cases charged against you (are) not true?

Accused : It is not true maybe it was committed by her boyfriend then it

was charged against me.

Court : In so far as. . . What is not included in the plea therefore, is the
month of July 1993, January 1994 and the month of February 1994. You
did not commit these? Why is it that when you were asked you entered
a plea of guilty?

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 Accused : Because I committed two acts only.

Court : Why is it that when you were asked you entered a plea of guilty?

Accused : Because what I recall is that I just committed two acts of rape.

Court : Not Guilty in the three (3) charges and Guilty in two (2) charges.
Does counsel and accused agree to pre-trial conference?

Atty. Antiquiera : We dispense (with) the pre-trial conference.

Court : For the two charges (to) which he pleads guilty, the court will
receive evidence in order to impose the proper penalty and on the
other charges, the court will receive evidence for the
prosecution. 15 (Emphasis and corrections in parentheses ours.)

xxx xxx xxx

At the subsequent hearing, just like what happened in Alicando, the presiding judge went through the
same formality of having appellant stand again before him, and this is what transpired:

Court : Before the court allows the prosecution to present evidence,

accused, please come here again.

(At this juncture, the accused came near to the court)

Court : The court informs you as accused that you are charged (with)
the crime of rape; under the new law which if you plead guilty, you will
be sentence(d) to death penalty, did you understand that?

A : Yes, Your Honor.

Q : Despite this warning for the second time by the court to you, do you
still insist (o)n your plea of guilty?

A : Yes, Your Honor.

Q : Is this plea your voluntary will without force or intimidation from

anyone else to include the complaining witness or the family?

A : No, Your Honor.

Q : So, therefore, the court will allow you to present evidence if you
wis(h) to because you insist (o)n your plea of guilty. Do you intend to
present evidence.

A : No, I will not present evidence.

Court : Okey, because of this the court will receive evidence of the
prosecution.

In another case, the last time when arraigned, you admitted that
sometime in December, 1993, you likewise raped your daughter, do you
still confirm and affirm this?

A : Yes, Your Honor.

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 Q : In this case, because this was committed (i)n December 1993, the
penalty here is reclusion perpetua. After learning this as informed to you
by the court, do still insist on your plea of guilty?

A : Yes, I will admit. I did it.

Q : Do you admit this voluntarily without force, intimidation or physical

injuries or mauling on you by anyone whomsoever?

A : No, Sir.

Q : In connection with this, therefore, definitely you will be convicted in

both cases?

A : Yes, your honor.

Q : What is your educational attainment?

A : Grade I.

Q : Being Grade I, the court emphasized that you are swayed by your
own fashion because of your low education?

A : I am not.

Q : In other words, you still insist on your plea of guilty?

A : Yes, sir.

Court : Okey, proceed with the presentation of prosecution evidence.

Q : In this Criminal Case No. 43568, do you intend to present evidence?

A : No, Your Honor.

Court : Okey, proceed. 16

xxx xxx xxx

3. At threshold, what strikes this Court as peculiar is that the arraignment appears to have consisted
merely of the bare reading of the five complaints, synthetically and cryptically reported in the transcript,
thus: "(Reading the information/complaint to the accused in Ilonggo/local dialect)." Since what was
supposed to have been read was stated in the singular, but there were five criminal complaints against
appellant, this Court is then left to speculate on whether all five criminal complaints were actually read,
translated or explained to appellant on a level within his comprehension, considering his limited
education.

Again, on the presumption of correctness, since this Court has no other bearings to steer by, it may be
assumed that all five complaints were read since the clerk is supposed to have thereafter announced in
cadence and in the consecutive order of cases that appellant pleaded guilty to all the charges. What,
however, punctures this possible bubble of regularity is that appellant subsequently declared, and the
clerk consequently contradicted her previous recital, that he was not pleading guilty to three of the
complaints. This is hardly a respectable and credible performance in the solemnity of a court trial of five
capital offenses.

We cannot, therefore, be persuaded that on this very basic procedure alone, involving just the
mechanical process of arraignment outlined in Section 1, there was the necessary degree of compliance
by the court below. Other considerations reveal how flawed the supposed arraignment actually was. For

71
instance, there is no showing whether or not appellant or his counsel de oficio was furnished a copy of
each complaint with the list of witnesses against him, in order that the latter may duly prepare and
comply with his responsibilities. Of more troublous concern is the fact that appellant was not specifically
warned that on his plea of guilty, he would definitely and in any event be given the death penalty under
the "New Law," as the trial court calls Republic Act No. 7659. He was also not categorically advised
that his plea of guilty would not under any circumstance affect or reduce the death sentence as he may
have believed or may have been erroneously advised.

Such an erroneous notion on the part of appellant which may have impelled him to plead guilty is not
improbable or conjectural, especially when we consider his mental state and the environmental
situation. This is precisely what People vs. Dayot 17 cautioned against, thus:

A "searching inquiry," under the Rules, means more than informing cursorily the
accused that he faces a jail term (because the accused is aware of that) but so also, the
exact length of imprisonment under the law and the certainty that he will serve time at
the national penitentiary or a penal colony. Not infrequently indeed, an accused pleads
guilty in the hope, as we said, of a lenient treatment, or upon a bad advice or promises
of the authorities or parties of a lighter penalty should he admit guilt or express
"remorse." It is the duty of the judge to see to it that he does not labor under these
mistaken impressions, . . . . (Emphasis supplied).

Likewise of very serious importance and consequence is the fact that the complaints were supposedly
read to appellant in "Ilonggo/local dialect." Parenthetically, there was no statement of record that
appellant fully understood that medium of expression. This assumes added significance since Ilonggo, or
properly called Hiligaynon, is a regional language, 18 spoken in a major part of Iloilo province, Negros
Occidental and, with variations, in Capiz. Within a province or major geographical area using a basic
regional language, there may be other local dialects spoken in certain parts thereof. If said indication in
the aforequoted portion of the transcript intended to convey that Ilonggo is merely a local dialect and
was also the idiom referred to, the same is egregious error; it would be different if "local dialect" was
used to denote an alternative and different medium but, inexplicably, without identifying what it was.

The significance of this distinction is found right in the provisions of Section 1(a) of Rule 116 which,
cognizant of the aforestated linguistic variations, deliberately required that the complaint or information
be read to the accused in the language or the dialect known to him, to ensure his comprehension of the
charges. The Court takes judicial notice, because it
is either of public knowledge or readily capable of unquestionable demonstration, 19 that in the central
and northwestern part of Iloilo province and all the way up to and throughout Antique, including
necessarily San Joaquin where the offenses were committed and of which appellant and his family are
natives, the local dialect is known as "kinaray-a."

Barring previous exposure to or as a consequence of extended social or commercial intercourse,

"kinaray-a" is not readily understandable to nor spoken by those born to the Hiligaynon regional
language or who have lived in the areas under its sway for an appreciable period of time. The converse
is true for those whose native tongue is the dialect of "kinaray-a," since they are generally not well-
versed in Ilonggo, or Hiligaynon. Since all the complaints are not only in English but in technical legal
language, we are again at sea as to whether and how the indictments were translated to Ilonggo and/or
to "kinaray-a," or that the appellant was truly and honestly made aware of the charges and, especially,
the consequences of his guilty plea thereto. The records are silent and do not reveal anything on this
point, nor how the dialogue between the presiding judge and appellant was translated. Yet a man's life
is at stake while this Court wrestles with that dilemma created by an omission of official duty.

4. The foregoing discussion brings us to the strict injunction that the trial court must fully discharge its
duty to conduct the requisite searching inquiry in such a way as would indubitably show that appellant
had made not only a clear, definite and unconditional plea, but that he did so with a well-informed
understanding and full realization of the consequences thereof. To ask an accused about his educational
attainment and then warn him that he might have admitted the crime because of his poor intelligence is
certainly not the logical approach in assaying the sufficiency of his plea of guilty.

72
In the same manner, a mere warning to him that he could possibly face extreme retribution in the form
of death or face a life sentence in jail is not even enough. 20 The trial judge should ascertain and be
totally convinced that, for all intents and purposes, the plea recorded has all the earmarks of a valid
and acceptable confession upon which an eventual judgment of conviction can stand. 21 Although there
is no definite and concrete rule as to how a trial judge may go about the matter of a proper "searching
inquiry," it would be well for the court, for instance, to require the accused to fully narrate the incident
that spawned the charges against him, or by making him reenact the manner in which he perpetrated
the crime, or by causing him to furnish and explain to the court missing details of significance. 22

The trial court should also be convinced that the accused has not been coerced or placed under a state
of duress either by actual threats of physical harm coming from malevolent or avenging quarters and
this it can do, such as by ascertaining from the accused himself the manner in which he was
subsequently brought into the custody of the law; or whether he had the assistance of competent
counsel during the custodial and preliminary investigations; and, ascertaining from him the conditions
under which he was detained and interrogated during the aforestated investigations. Likewise, a series
of questions directed at defense counsel as to whether or not said counsel had conferred with, and
completely explained to the accused the meaning of a plea and its consequences, would be a well-taken
step along those lines. 23

Questions of these nature are undoubtedly crucial and no truer is this than in the case of appellant for,
again, the original records and rollo of this case now under review are completely bereft of any
document or record concerning his apprehension, detention and prior investigation, whether custodial or
preliminary. The foregoing circumstances must be taken in addition to the appropriate forewarnings of
the consequences of a plea of guilty, as well as the questions by the court regarding the age, educational
attainment and socio-economic status of the accused which may reveal contributory insights for a
proper verdict in the case.

And, on this latter aspect, we are inclined to quote from Alicando since, as stated in limine the defective
arraignment in the cases now before us is virtually a reprise of what the same trial court with its
presiding judge did or did not do in that previous case:

Section 3 of Rule 116 which the trial court violated is not a new rule for it merely
incorporated the decision of this Court in People vs. Apduhan Jr. and reiterated in an
unbroken line of cases. The bottom line of the rule is that a plea of guilt must be based
on a free and informed judgment. Thus, the searching inquiry of the trial court must be
focused on: (1) the voluntariness of the plea; and (2) the full comprehension of the
consequences of the plea. The questions of the trial court failed to show the
voluntariness of the plea of guilt of the appellant nor did the questions demonstrate
appellant's full comprehension of the consequences of the plea. The records do not
reveal any information about the personality profile of the appellant which can serve as
a trustworthy index of his capacity to give a free and informed plea of guilt. The age,
socio-economic status, and educational background of the appellant were not plumbed
by the trial court. . . . . (Citations omitted).

It will be readily observed, if one would analyze appellant's responses during his irregular arraignment,
that his low intelligence quotient and lack of education combined to deprive him of fully understanding
what obviously appeared to him as mysterious rituals and unfamiliar jargons. This was also what
happened, and what we duly noted, in People vs. Albert, supra.

In the transcripts of said proceeding which are earlier quoted extensively, there are italicized portions
showing not only the grossly inadequate or ambiguous, if not indifferent, questions of the lower court
but also the erratic answers of appellant which are neither responsive nor rational.. There is no need to
belabor them here since they speak for themselves, but we are not impressed by the formulary
questions posed by the lower court while going through the motions of interviewing appellant. The
Court would want to stress here, therefore, that the judicial conscience cannot accept as valid a plea of
guilty to a charge with a mandatory death penalty when entered by an accused with a befuddled state
of mind at an arraignment with reversible lapses in law.

73
5. Adverting once again to Alicando, we reiterated therein that pursuant to Binabay vs. People, et
al.,24 no valid judgment can be rendered upon an invalid arraignment. Since in Alicando the arraignment
of appellant therein was void, the judgment of conviction rendered against him was likewise void, hence
in fairness to him and in justice to the offended party that case was remanded to the trial court for
further proceedings. The case at bar being on all fours with the aforementioned cases on the particular
determinant issue, we have perforce to yield to the same doctrine and disposition.

Let it be clearly understood, however, especially by the censorious: This Court will not hesitate to
impose the capital punishment when all the requisites therefor have been met in accordance with the
law of the land. It cannot, therefore, hold a life forfeit, no matter how despicable the offender, when
effective protection for his basic rights was denied because of poverty or ignorance. Nor will the Court
render a death sentence just to make a meretricious obeisance to the vengeful call for blood. Judicious
verdicts evolve from the privacy of reasoned reflection in chambers and not from the publicity of
emotional acclaim on the podium.

WHEREFORE, the judgment of the court a quo in Criminal Cases Nos. 43568 and 43571 convicting
accused-appellant Melchor Estomaca y Garque of two crimes of rape is hereby SET ASIDE. Said cases are
REMANDED to the trial court for further and appropriate proceedings, with instructions that the same
be given appropriate priority and the proceedings therein be conducted with deliberate dispatch and
circumspection.

SO ORDERED.

Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Mendoza, Hermosisima, Jr. and
Panganiban, JJ., concur.

G.R. No. 126389 July 10, 1998

SOUTHEASTERN COLLEGE INC., Petitioner, v. COURT OF APPEALS, JUANITA DE JESUS VDA. DE

DIMAANO, EMERITA DIMAANO, REMEDIOS DIMAANO, CONSOLACION DIMAANO and MILAGROS
DIMAANO, Respondents.

PURISIMA, J.:

Petition for review under Rule 45 of the Rules of Court seeking to set aside the Decision 1 promulgated
on July 31, 1996, and Resolution 2 dated September 12, 1996 of the Court of Appeals 3 in CA-G.R. No.
41422, entitled "Juanita de Jesus vda. de Dimaano, et al. vs. Southeastern College, Inc.", which reduced
the moral damages awarded below from P1,000,000.00 to P200,000.00. 4 The Resolution under attack
denied petitioner's motion for reconsideration.

Private respondents are owners of a house at 326 College Road, Pasay City, while petitioner owns a
four-storey school building along the same College Road. On October 11, 1989, at about 6:30 in the
morning, a powerful typhoon "Saling" hit Metro Manila. Buffeted by very strong winds, the roof of
petitioner's building was partly ripped off and blown away, landing on and destroying portions of the
roofing of private respondents' house. After the typhoon had passed, an ocular inspection of the
destroyed building was conducted by a team of engineers headed by the city building official, Engr. Jesus
L. Reyna. Pertinent aspects of the latter's Report 5 dated October 18, 1989 stated, as follows:

5. One of the factors that may have led to this calamitous event is the formation of the building in the
area and the general direction of the wind. Situated in the peripheral lot is an almost U-shaped
formation of 4-storey building. Thus, with the strong winds having a westerly direction, the general
formation of the building becomes a big funnel-like structure, the one situated along College Road,
receiving the heaviest impact of the strong winds. Hence, there are portions of the roofing, those
located on both ends of the building, which remained intact after the storm.

74
6. Another factor and perhaps the most likely reason for the dislodging of the roofing structural trusses
is the improper anchorage of the said trusses to the roof beams. The 1/2' diameter steel bars embedded
on the concrete roof beams which serve as truss anchorage are not bolted nor nailed to the trusses. Still,
there are other steel bars which were not even bent to the trusses, thus, those trusses are not anchored
at all to the roof beams.

It then recommended that "to avoid any further loss and damage to lives, limbs and property of persons
living in the vicinity," the fourth floor of subject school building be declared as a "structural hazard."

In their Complaint 6 before the Regional Trial Court of Pasay City, Branch 117, for damages based
on culpa aquiliana, private respondents alleged that the damage to their house rendered the same
uninhabitable, forcing them to stay temporarily in others' houses. And so they sought to recover from
petitioner P117,116.00, as actual damages, P1,000,000.00, as moral damages, P300,000.00, as
exemplary damages and P100,000.00, for and as attorney's fees; plus costs.

In its Answer, petitioner averred that subject school building had withstood several devastating
typhoons and other calamities in the past, without its roofing or any portion thereof giving way; that it
has not been remiss in its responsibility to see to it that said school building, which houses school
children, faculty members, and employees, is "in tip-top condition"; and furthermore, typhoon "Saling"
was "an act of God and therefore beyond human control" such that petitioner cannot be answerable for
the damages wrought thereby, absent any negligence on its part.

The trial court, giving credence to the ocular inspection report to the effect that subject school building
had a "defective roofing structure," found that, while typhoon "Saling" was accompanied by strong
winds, the damage to private respondents' houses "could have been avoided if the construction of the
roof of [petitioner's] building was not faulty." The dispositive portion of the lower court's
decision 7 reads, thus:

WHEREFORE, in view of the foregoing, the Court renders judgment (sic) in favor of the plaintiff (sic) and
against the defendants, (sic) ordering the latter to pay jointly and severally the former as follows:

a) P117,116.00, as actual damages, plus litigation expenses;

b) P1,000,000.00 as moral damages;

c) P100,000.00 as attorney's fees;

d) Costs of the instant suit.

The claim for exemplary damages is denied for the reason that the defendants (sic) did in a wanton
fraudulent, reckless, oppressive or malevolent manner.

In its appeal to the Court of Appeals, petitioner assigned as errors, 8 that:

THE TRIAL COURT ERRED IN HOLDING THAT TYPHOON "SALING", AS AN ACT OF GOD, IS NOT "THE SOLE
AND ABSOLUTE REASON" FOR THE RIPPING-OFF OF THE SMALL PORTION OF THE ROOF OF
SOUTHEASTERN'S FOUR (4) STOREY SCHOOL BUILDING.

II

THE TRIAL COURT ERRED IN HOLDING THAT "THE CONSTRUCTION OF THE ROOF OF DEFENDANT'S
SCHOOL BUILDING WAS FAULTY" NOTWITHSTANDING THE ADMISSION THAT THERE WERE TYPHOONS
BEFORE BUT NOT AS GRAVE AS TYPHOON "SALING" WHICH IS THE DIRECT AND PROXIMATE CAUSE OF
THE INCIDENT.

III

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THE TRIAL COURT ERRED IN AWARDING ACTUAL AND MORAL DAMAGES AS WELL AS ATTORNEY'S FEES
AND LITIGATION EXPENSES AND COSTS OF SUIT TO DIMAANOS WHEN THEY HAVE NOT INCURRED
ACTUAL DAMAGES AT ALL AS DIMAANOS HAVE ALREADY SOLD THEIR PROPERTY, AN INTERVENING
EVENT THAT RENDERS THIS CASE MOOT AND ACADEMIC.

IV

THE TRIAL COURT ERRED IN ORDERING THE ISSUANCE OF THE WRIT OF EXECUTION INSPITE OF THE
PERFECTION OF SOUTHEASTERN'S APPEAL WHEN THERE IS NO COMPELLING REASON FOR THE
ISSUANCE THERETO.

As mentioned earlier, respondent Court of Appeals affirmed with modification the trial court's
disposition by reducing the award of moral damages from P1,000,000.00 to P200,000.00. Hence,
petitioner's resort to this Court, raising for resolution the issues of:

1. Whether or not the award of actual damages [sic] to respondent Dimaanos on the basis of speculation
or conjecture, without proof or receipts of actual damage, [sic] legally feasible or justified.

2. Whether or not the award of moral damages to respondent Dimaanos, with the latter having suffered,
actual damage has legal basis.

3. Whether or not respondent Dimaanos who are no longer the owner of the property, subject matter of
the case, during its pendency, has the right to pursue their complaint against petitioner when the case
was already moot and academic by the sale of the property to third party.

4. Whether or not the award of attorney's fees when the case was already moot academic [sic] legally
justified.

5. Whether or not petitioner is liable for damage caused to others by typhoon "Saling" being an act of
God.

6. Whether or not the issuance of a writ of execution pending appeal, ex-parte or without hearing, has
support in law.

The pivot of inquiry here, determinative of the other issues, is whether the damage on the roof of the
building of private respondents resulting from the impact of the falling portions of the school building's
roof ripped off by the strong winds of typhoon "Saling", was, within legal contemplation, due to
fortuitous event? If so, petitioner cannot be held liable for the damages suffered by the private
respondents. This conclusion finds support in Article 1174 of Civil Code, which provides:

Art 1174. Except in cases expressly specified by the law, or when it is otherwise declared by stipulation,
or when the nature of the obligation requires the assumption of risk, no person shall be responsible for
those events which could not be foreseen, or which, though foreseen, were inevitable.

The antecedent of fortuitous event or caso fortuito is found in the Partidas which defines it as "an event
which takes place by accident and could not have been foreseen." 9 Escriche elaborates it as "an
unexpected event or act of God which could neither be foreseen nor resisted." 10 Civilist Arturo M.
Tolentino adds that "[f]ortuitous events may be produced by two general causes: (1) by nature, such as
earthquakes, storms, floods, epidemics, fires, etc. and (2) by the act of man, such as an armed invasion,
attack by bandits, governmental prohibitions, robbery, etc." 11

In order that a fortuitous event may exempt a person from liability, it is necessary that he be free from
any previous negligence or misconduct by reason of which the loss may have been occasioned. 12 An act
of God cannot be invoked for the protection of a person who has been guilty of gross negligence in not
trying to forestall its possible adverse consequences. When a person's negligence concurs with an act of
God in producing damage or injury to another, such person is not exempt from liability by showing that
the immediate or proximate cause of the damages or injury was a fortuitous event. When the effect is
found to be partly the result of the participation of man - whether it be from active intervention, or

76
neglect, or failure to act - the whole occurrence is hereby humanized, and removed from the rules
applicable to acts of God. 13

In the case under consideration, the lower court accorded full credence to the finding of the
investigating team that subject school building's roofing had "no sufficient anchorage to hold it in
position especially when battered by strong winds." Based on such finding, the trial court imputed
negligence to petitioner and adjudged it liable for damages to private respondents.

After a thorough study and evaluation of the evidence on record, this Court believes otherwise,
notwithstanding the general rule that factual findings by the trail court, especially when affirmed by the
appellate court, are binding and conclusive upon this Court. 14 After a careful scrutiny of the records and
the pleadings submitted by the parties, we find exception to this rule and hold that the lower courts
misappreciated the evidence proffered.

There is no question that a typhoon or storm is a fortuitous event, a natural occurrence which may be
foreseen but is unavoidable despite any amount of foresight, diligence or care. 15 In order to be exempt
from liability arising from any adverse consequence engendered thereby, there should have been no
human participation amounting to a negligent act. 16 In other words; the person seeking exoneration
from liability must not be guilty of negligence. Negligence, as commonly understood, is conduct which
naturally or reasonably creates undue risk or harm to others. It may be the failure to observe that
degree of care, precaution, and vigilance which the circumstances justify demand, 17 or the omission to
do something which a prudent and reasonable man, guided by considerations which ordinarily regulate
the conduct of human affairs, would
18
do. From these premises, we proceed to determine whether petitioner was negligent, such that if it
were not, the damage caused to private respondents' house could have been avoided?

At the outset, it bears emphasizing that a person claiming damages for the negligence of another has
the burden of proving the existence of fault or negligence causative of his injury or loss. The facts
constitutive of negligence must be affirmatively established by competent evidence, 19 not merely by
presumptions and conclusions without basis in fact. Private respondents, in establishing the culpability
of petitioner, merely relied on the aforementioned report submitted by a team which made
an ocular inspection of petitioner's school building after the typhoon. As the term imparts,
an ocular inspection is one by means of actual sight or viewing. 20 What is visual to the eye through, is
not always reflective of the real cause behind. For instance, one who hears a gunshot and then sees a
wounded person, cannot always definitely conclude that a third person shot the victim. It could have
been self-inflicted or caused accidentally by a stray bullet. The relationship of cause and effect must be
clearly shown.

In the present case, other than the said ocular inspection, no investigation was conducted to determine
the real cause of the partial unroofing of petitioner's school building. Private respondents did not even
show that the plans, specifications and design of said school building were deficient and defective.
Neither did they prove any substantial deviation from the approved plans and specifications. Nor did
they conclusively establish that the construction of such building was basically flawed. 21

On the other hand, petitioner elicited from one of the witnesses of private respondents, city building
official Jesus Reyna, that the original plans and design of petitioner's school building were approved
prior to its construction. Engr. Reyna admitted that it was a legal requirement before the construction of
any building to obtain a permit from the city building official (city engineer, prior to the passage of the
Building Act of 1977). In like manner, after construction of the building, a certification must be secured
from the same official attesting to the readiness for occupancy of the edifice. Having obtained both
building permit and certificate of occupancy, these are, at the very least, prima facie evidence of the
regular and proper construction of subject school building. 22

Furthermore, when part of its roof needed repairs of the damage inflicted by typhoon "Saling", the same
city official gave the go-signal for such repairs - without any deviation from the original design - and
subsequently, authorized the use of the entire fourth floor of the same building. These only prove that
subject building suffers from no structural defect, contrary to the report that its "U-shaped" form was

77
"structurally defective." Having given his unqualified imprimatur, the city building official is presumed to
have properly performed his duties 23 in connection therewith.

In addition, petitioner presented its vice president for finance and administration who testified that an
annual maintenance inspection and repair of subject school building were regularly undertaken.
Petitioner was even willing to present its maintenance supervisor to attest to the extent of such regular
inspection but private respondents agreed to dispense with his testimony and simply stipulated that it
would be corroborative of the vice president's narration.

Moreover, the city building official, who has been in the city government service since 1974, admitted in
open court that no complaint regarding any defect on the same structure has ever been lodged before
his office prior to the institution of the case at bench. It is a matter of judicial notice that typhoons are
common occurrences in this country. If subject school building's roofing was not firmly anchored to its
trusses, obviously, it could not have withstood long years and several typhoons even stronger than
"Saling."

In light of the foregoing, we find no clear and convincing evidence to sustain the judgment of the
appellate court. We thus hold that petitioner has not been shown negligent or at fault regarding the
construction and maintenance of its school building in question and that typhoon "Saling" was the
proximate cause of the damage suffered by private respondents' house.

With this disposition on the pivotal issue, private respondents' claim for actual and moral damages as
well as attorney's fees must fail. 24 Petitioner cannot be made to answer for a purely fortuitous
event. 25 More so because no bad faith or willful act to cause damage was alleged and proven to warrant
moral damages.

Private respondents failed to adduce adequate and competent proof of the pecuniary loss they actually
incurred. 26 It is not enough that the damage be capable of proof but must be actually proved with a
reasonable degree of certainty, pointing out specific facts that afford a basis for measuring whatever
compensatory damages are borne. 27 Private respondents merely submitted an estimated amount
needed for the repair of the roof their subject building. What is more, whether the "necessary repairs"
were caused ONLY by petitioner's alleged negligence in the maintenance of its school building, or
included the ordinary wear and tear of the house itself, is an essential question that remains
indeterminable.

The Court deems unnecessary to resolve the other issues posed by petitioner.

As regards the sixth issue, however, the writ of execution issued on April 1, 1993 by the trial court is
hereby nullified and set aside. Private respondents are ordered to reimburse any amount or return to
petitioner any property which they may have received by virtue of the enforcement of said writ.

WHEREFORE, the petition is GRANTED and the challenged Decision is REVERSED. The complaint of
private respondents in Civil Case No. 7314 before the trial court a quo is ordered DISMISSED and the
writ of execution issued on April 1, 1993 in said case is SET ASIDE. Accordingly, private respondents are
ORDERED to return to petitioner any amount or property received by them by virtue of said writ. Costs
against the private respondents.

SO ORDERED.

Narvasa, C.J., Romero and Kapunan, JJ., concur.

[G.R. No. 120466. May 17, 1999.]

COCA COLA BOTTLERS PHILS., INC., Petitioners, v. NATIONAL LABOR RELATIONS COMMISSION and
RAMON B. CANONICATO, Respondents.

DECISION

78
BELLOSILLO, J.:

This petition for certiorari under Rule 65 of the Revised Rules of Court assails the 3 January 1995
decision 1 of the National Labor Relations Commission (NLRC) holding that private respondent Ramon B.
Canonicato is a regular employee of petitioner Coca Cola Bottlers Phils. Inc. (COCA COLA) entitled to
reinstatement and back wages. The NLRC reversed the decision of the Labor Arbiter of 28 April 1994 2
which declared that no employer-employee relationship existed between COCA COLA and Canonicato
thereby foreclosing entitlement to reinstatement and back wages.

On 7 April 1986 COCA COLA entered into a contract of janitorial services with Bacolod Janitorial Services
(BJS) stipulating 3 among others —

That the First Party (COCA COLA) desires to engage the services of the Second Party (BJS), as an
Independent Contractor, to perform and provide for the maintenance, sanitation and cleaning services
for the areas hereinbelow mentioned, all located within the aforesaid building of the First Party . . .

1. The scope of work of the Second Party includes all floors, walls, doors, vertical and horizontal areas,
ceiling, all windows, glass surfaces, partitions, furniture, fixtures and other interiors within the
aforestated covered areas.

2. Except holidays which are rest days, the Second Party will undertake daily the following: 1) Sweeping,
damp-mopping, spot scrubbing and polishing of floors; 2) Cleaning, sanitizing and disinfecting agents to
be used on commodes, urinals and washbasins, water spots on chrome and other fixtures to be
checked; 3) Cleaning of glass surfaces, windows and glass partitions that require daily attention; 4)
Cleaning and dusting of horizontal and vertical surfaces; 5) Cleaning of fixtures, counters, panels and
sills; 6) Clean, pick-up cigarette butts from sandburns and ashtrays and trash receptacles; 7) Trash and
rubbish disposal and burning.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

In addition, the Second Party will also do the following once a week, to wit: 1) Cleaning, waxing and
polishing of lobbies and offices; 2) Washing of windows, glasses that require cleaning; 3) Thorough
disinfecting and cleaning of toilets and washrooms.

3. The Second Party shall supply the necessary utensils, equipment and supervision, and it shall only
employ the services of fifteen (15) honest, reliable, carefully screened, cooperative and trained
personnel, who are in good faith, in the performance of its herein undertaking . . .

4. The Second Party hereby guarantees against unsatisfactory workmanship. Minor repair of comfort
rooms are free of charge provided the First Party will supply the necessary materials for such repairs at
its expense. As may be necessary, the Second Party shall also report on such part or areas of the
premises covered by this contract which may require repairs from time to time . . . (Emphasis supplied).

Every year thereafter a service contract was entered into between the parties under similar terms and
conditions until about May 1994. 4

On 26 October 1989 COCA COLA hired private respondent Ramon Canonicato as a casual employee and
assigned him to the bottling crew as a substitute for absent employees. In April 1990 COCA COLA
terminated Canonicato’s casual employment. Later that year COCA COLA availed of Canonicato’s
services, this time as a painter in contractual projects which lasted from fifteen (15) to thirty (30) days. 5

On 1 April 1991 Canonicato was hired as a janitor by BJS 6 which assigned him to COCA COLA
considering his familiarity with its premises. On 5 and 7 March 1992 Canonicato started painting the
facilities of COCA COLA and continued doing so several months thereafter or so for a few days every
time until 6 to 25 June 1993. 7

Goaded by information that COCA COLA employed previous BJS employees who filed a complaint

79
against the company for regularization pursuant to a compromise agreement, 8 Canonicato submitted a
similar complaint against COCA COLA to the Labor Arbiter on 8 June 1993. 9 The complaint was
docketed as RAB Case No. 06-06-10337-93.chanrobles law library

Without notifying BJS, Canonicato no longer reported to his COCA COLA assignment starting 29 June
1993. On 15 July 1993 he sent his sister Rowena to collect his salary from BJS. 10 BJS released his salary
but advised Rowena to tell Canonicato to report for work. Claiming that he was barred from entering
the premises of COCA COLA on either 14 or 15 July 1993, Canonicato met with the proprietress of BJS,
Gloria Lacson, who offered him assignments in other firms which he however refused. 11

On 23 July 1993 Canonicato amended his complaint against COCA COLA by citing instead as grounds
therefor illegal dismissal and underpayment of wages. He included BJS therein as a co-respondent. 12
On 28 September 1993 BJS sent him a letter advising him to report for work within three (3) days from
receipt, otherwise, he would be considered to have abandoned his job. 13

On 28 April 1994 the Labor Arbiter ruled that: (a) there was no employer-employee relationship
between COCA COLA and Ramon Canonicato because BJS was Canonicato’s real employer; (b) BJS was a
legitimate job contractor, hence, any liability of COCA COLA as to Canonicato’s salary or wage
differentials was solidary with BJS in accordance with pars. 1 and 2 of Art. 106, Labor Code; (c) COCA
COLA and BJS must jointly and severally pay Canonicato his wage differentials amounting to P2,776.80
and his 13th month salary of P1,068.00, including ten (10%) percent attorney’s fees in the sum of
P384.48. The Labor Arbiter also ordered that all other claims by Canonicato against COCA COLA be
dismissed for lack of employer-employee relationship; that the complaint for illegal dismissal as well as
all the other claims be likewise dismissed for lack of merit; and that COCA COLA and BJS deposit
P4,429.28 with the Department of Labor Regional Arbitration Branch Office within ten (10) days from
receipt of the decision. 14

The NLRC rejected on appeal the decision of the Labor Arbiter on the ground that the janitorial services
of Canonicato were found to be necessary or desirable in the usual business or trade of COCA COLA. The
NLRC accepted Canonicato’s proposition that his work with the BJS was the same as what he did while
still a casual employee of COCA COLA. In so holding the NLRC applied Art. 280 of the Labor Code and
declared that Canonicato was a regular employee of COCA COLA and entitled to reinstatement and
payment of P18,105.10 in back wages. 15

On 26 May 1995 the NLRC denied COCA COLA’s motion for reconsideration for lack of merit. 16 Hence,
this petition, assigning as errors: (a) NLRC’s finding that janitorial services were necessary and desirable
in COCA COLA’s trade and business; (b) NLRC’s application of Art. 280 of the Labor Code in resolving the
issue of whether an employment relationship existed between the parties; (c) NLRC’s ruling that there
was an employer-employee relationship between petitioner and Canonicato despite its virtual
affirmance that BJS was a legitimate job contractor; (d) NLRC’s declaration that Canonicato was a regular
employee of petitioner although he had rendered the company only five (5) months of casual
employment; and, (e) NLRC’s order directing the reinstatement of Canonicato and the payment to him
of six (6) months back wages. 17

We find good cause to sustain petitioner. Findings of fact of administrative offices are generally
accorded respect by us and no longer reviewed for the reason that such factual findings are considered
to be within their field of expertise. Exception however is made, as in this case, when the NLRC and the
Labor Arbiter made contradictory findings.

We perceive at the outset the disposition of the NLRC that janitorial services are necessary and desirable
to the trade or business of petitioner COCA COLA. But this is inconsistent with our pronouncement in
Kimberly Independent Labor Union v. Drilon 18 where the Court took judicial notice of the practice
adopted in several government and private institutions and industries of hiring janitorial services on an
"independent contractor basis." In this respect, although janitorial services may be considered directly
related to the principal business of an employer, as with every business, we deemed them unnecessary
in the conduct of the employer’s principal business. 19

This judicial notice, of course, rests on the assumption that the independent contractor is a legitimate

80
job contractor so that there can be no doubt as to the existence of an employer-employee relationship
between the contractor and the worker. In this situation, the only pertinent question that may arise will
no longer deal with whether there exists an employment bond but whether the employee may be
considered regular or casual as to deserve the application of Art. 280 of the Labor
Code.chanroblesvirtuallawlibrary:red

It is an altogether different matter when the very existence of an employment relationship is in question.
This was the issue generated by Canonicato’s application for regularization of his employment with
COCA COLA and the subsequent denial by the latter of an employer-employee relationship with the
applicant. It was error therefore for the NLRC to apply Art. 280 of the Labor Code in determining the
existence of an employment relationship of the parties herein, especially in light of our explicit holding
in Singer Sewing Machine Company v. Drilon 20 that —

. . . [t]he definition that regular employees are those who perform activities which are desirable and
necessary for the business of the employer is not determinative in this case. Any agreement may
provide that one party shall render services for and in behalf of another for a consideration (no matter
how necessary for the latter’s business) even without being hired as an employee. This is precisely true
in the case of an independent contractorship as well as in an agency agreement. The Court agrees with
the petitioner’s argument that Article 280 is not the yardstick for determining the existence of an
employment relationship because it merely distinguishes between two kinds of employees, i.e., regular
employees and casual employees, for purposes of determining the right of an employee to certain
benefits, to join or form a union, or to security of tenure. Article 280 does not apply where the existence
of an employment relationship is in dispute.

In determining the existence of an employer-employee relationship it is necessary to determine whether

the following factors are present: (a) the selection and engagement of the employee; (b) the payment of
wages; (c) the power to dismiss; and, (d) the power to control the employee’s conduct. 21 Notably,
these are all found in the relationship between BJS and Canonicato and not between Canonicato and
petitioner COCA COLA. As the Solicitor-General manifested 22 —

In the instant case, the selection and engagement of the janitors for petitioner were done by BJS. The
application form and letter submitted by private respondent (Canonicato) to BJS show that he
acknowledged the fact that it was BJS who did the hiring and not petitioner . . .

BJS paid the wages of private respondent, as evidenced by the fact that on July 15, 1993, private
respondent sent his sister to BJS with a note authorizing her to receive his pay.

Power of dismissal is also exercised by BJS and not petitioner. BJS is the one that assigns the janitors to
its clients and transfers them when it sees fit. Since BJS is the one who engages their services, then it
only follows that it also has the power to dismiss them when justified under the circumstances.

Lastly, BJS has the power to control the conduct of the janitors. The supervisors of petitioner, being
interested in the result of the work of the janitors, also give suggestions as to the performance of the
janitors, but this does not mean that BJS has no control over them. The interest of petitioner is only with
respect to the result of their work. On the other hand, BJS oversees the totality of their performance.

The power of the employer to control the work of the employee is said to be the most significant
determinant. Canonicato disputed this power of BJS over him by asserting that his employment with
COCA COLA was not interrupted by his application with BJS since his duties before and after he applied
for regularization were the same, involving as they did, working in the maintenance department and
doing painting tasks within its facilities. Canonicato cited the Labor Utilization Reports of COCA COLA
showing his painting assignments. These reports, however, are not expressive of the true nature of the
relationship between Canonicato and COCA COLA; neither do they detract from the fact that BJS
exercised real authority over Canonicato as its employee.

Moreover, a closer scrutiny of the reports reveals that the painting jobs were performed by Canonicato
sporadically, either in a few days within a month and only for a few months in a year. 23 This
infrequency or irregularity of assignments countervails Canonicato’s submission that he was assigned

81
specifically to undertake the task of painting the whole year round. If anything, it hews closely to the
assertion of BJS that it assigned Canonicato to these jobs to maintain and sanitize the premises of
petitioner COCA COLA pursuant to its contract of services with the company. 24

It is clear from these established circumstances that NLRC should have recognized BJS as the employer
of Canonicato and not COCA COLA. This is demanded by the fact that it did not disturb, and therefore it
upheld, the finding of the Labor Arbiter that BJS was truly a legitimate job-contractor and could by itself
hire its own employees. The Commission could not have reached any other legitimate conclusion
considering that BJS satisfied all the requirements of a job-contractor under the law, namely, (a) the
ability to carry on an independent business and undertake the contract work on its own account under
its own responsibility according to its own manner and method, free from the control and direction of
its principal or client in all matters connected with the performance of the work except as to the results
thereof; and, (b) the substantial capital or investment in the form of tools, equipment, machinery, work
premises, and other materials which are necessary in the conduct of its business.25cralaw:red

It is to be noted that COCA COLA is not the only client of BJS which has its roster of clients like San
Miguel Corporation, Distilleria Bago Incorporated, University of Negros Occidental-Recolletos, University
of St. La Salle, Riverside College, College Assurance Plan Phil., Inc., and Negros Consolidated Farmers
Association, Inc. 26 This is proof enough that BJS has the capability to carry on its business of janitorial
services with big establishments aside from petitioner and has sufficient capital or materials necessary
therefor. 27 All told, there being no employer-employee relationship between Canonicato and COCA
COLA, the latter cannot be validly ordered to reinstate the former and pay him back wages.

WHEREFORE, the petition is GRANTED. The NLRC decision of 3 January 1995 declaring Ramon B.
Canonicato a regular employee of petitioner Coca Cola Bottlers Phils., Inc., entitled to reinstatement and
back wages is REVERSED and SET ASIDE. The decision of the Labor Arbiter of 28 April 1994 finding no
employer-employee relationship between petitioner and private respondent but directing petitioner
Coca Cola Bottlers Phils., Inc., instead and Bacolod Janitorial Services to pay jointly and severally Ramon
B. Canonicato P2,776.80 as wage differentials, P1,068.00 as 13th month pay and P384.48 as attorney’s
fees, is REINSTATED.

SO ORDERED.

Puno, Mendoza and Quisumbing, JJ., concur.

Buena, J., is on leave.

[G.R. No. 128720. January 23, 2002.]

S/SGT. ELMER T. VERGARA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

QUISUMBING, J.:

Petitioner seeks the reversal of the Court of Appeals’ decision dated October 31, 1996, in CA-G.R. No. CR
18318, which affirmed the judgment of the Regional Trial Court of Pasig City, Branch 167, in Criminal
Case No. 86163, convicting him of robbery, thus:chanrob1es virtua1 1aw 1ibrary

WHEREFORE, judgment is hereby rendered finding the accused S/Sgt. Elmer Vergara GUILTY beyond
peradventure of doubt of the crime of Robbery defined and penalized under Art. 294, No. (5), in relation
to Art. 295, of the Revised Penal Code and is hereby sentenced to an indeterminate penalty of Four (4)
years of prision correccional, as minimum, to Eight (8) years and Twenty-One (21) days of prision mayor,
as maximum; to indemnify the offended party in the sum of P106,000.00; to suffer all the accessory
penalties appurtenant thereto; and, to pay the Costs.

82
SO ORDERED. 1

The facts of the case are as follows:chanrob1es virtual 1aw library

On March 19, 1991, an information charging S/Sgt. Elmer Vergara, PC, C1C Nicolas Custodio y Abrera, PC
and Leonido Losanes y Vasquez of robbery in band was filed by the Rizal Provincial Prosecutor’s Office
with the RTC of Pasig, Metro Manila. The information read:chanrob1es virtual 1aw library

That on or about the 19th day of October, 1990, in the Municipality of Mandaluyong, Metro Manila,
Philippines, a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring
and confederating together with John Doe, whose true identity and present whereabout is still unknown,
and mutually helping and aiding one another, armed with high powered handguns, with intent of gain,
by means of violence and intimidation employed upon the person of one Catherine F. Manalo, an
employee of J & E Manalo Construction Co., Inc., who was then aboard a private car, did then and there
wilfully, unlawfully and feloniously take, steal and divest from Catherine F. Manalo the payroll money
amounting to P89,000.00 belonging to J & E Manalo Construction Company, Inc. and a gold necklace
with two (2) pendants, 18K valued at P17,000 belonging to Catherine F. Manalo, to the damage and
prejudice of J & E Manalo Construction Company, Inc. and Catherine F. Manalo in the aforementioned
amounts of P89,000.00 and P17,000.00 respectively.

Contrary to law. 2

Although all the suspects were brought into police custody, petitioner’s co-accused managed to
extricate themselves from police control and remain at large. Only petitioner was left to face the
charges. On May 21, 1993, he was arraigned. With the assistance of counsel de oficio, he pleaded "not
guilty" to the charges. Following the pre-trial conference on August 20, 1993, trial on the merits ensued.

The prosecution relied on the positive identification made by private complainant who testified in court.
As found by the court a quo:chanrob1es virtual 1aw library

x x x

On October 27, 1990, during the police line-up at the San Juan Police Station...she positively identified
herein accused Elmer Vergara as the armed man who pointed the gun at her after he approached the
left side of the car and wearing an army fatigue uniform with black hat and who got her car keys,
thereafter, she executed another statement implicating accused Elmer Vergara as one of the four armed
men who robber her.

On March 16, 1994, during the hearing of the case, she (Catherine F. Manalo) again pointed to accused
Elmer Vergara to be one of the robbery/hold-up gang members (HULIDAP), who took the payroll money
of the J & E Manalo Construction Co., Inc., and her gold necklace, his participation being that of the
person who pointed the gun at her and got the keys to her car; she remembered him to be about 5’6" to
5’7" in height, with dark features, chubby and heavily built. 3

Petitioner claimed an alibi, while denying any participation in the offense. The trial court summed up his
defense as follows:chanrob1es virtual 1aw library

Accused Elmer Vergara lays a serious doubt on his identity as one of the perpetrators of the robbery
‘hold-up’ in question . . . Claiming innocence, he presented evidence showing that he was at some other
place during the occurrence of the robbery. His alleged presence at the Pacita Complex at San Pedro,
Laguna, being a member of the narcotic operatives engaged in a surveillance of a suspected drug pusher,
was corroborated by no less than the team leader Captain, now Major Christopher Laxa. Major
Christopher Laxa was definite in declaring that S/Sgt. Elmer Vergara was physically present inside the
Pizza Hut restaurant at Pacita Complex, San Pedro Laguna, at about 3:00 o’clock in the afternoon of
October 19, 1990 and, that he did not leave the area from the time of their arrival at around 1:00 o’clock
in the morning until 11:30 o’clock in the evening. . . . 4

The trial court chose to believe the prosecution and disregarded petitioner’s alibi. On March 29, 1995, it

83
convicted Vergara not of robbery in band as charged in the information, however, but of robbery as
defined and penalized under Article 294 of the Revised Penal Code. As explained by the trial court

Under Art. 295 of the Revised Penal Code a robbery shall be deemed to have been committed by a band
when more than three armed malefactors (underline supplied) take part in its commission. The
prosecution’s evidence demonstrates that only three (3) in the group were armed, although there was
another member inside the car at the time of the commission. However, there is no indication that the
person inside the car was armed. Conceding in gratia argumenti, therefore, that the group of the
accused Elmer Vergara was composed of more than three (3) malefactors, the evidence disclosed that
only three (3) were armed, and hence, the crime cannot be considered to have been committed by a
band and does not come within the purview of Article 296 of the Revised Penal Code, which requires
more than three (3) armed malefactors to constitute the crime of robbery committed be a band. 5

In convicting petitioner for robbery, the trial court stated:chanrob1es virtual 1aw library

Both the defenses of negative identification and alibi are unavailing. Contrary to these protestations,
complainant Catherine Manalo had a vivid recollection of the identity of S/Sgt. Elmer Vergara as the
person who accosted her on the left side of the car or at the driver’s seat and who poked a gun at her
neck and was also the one who took the key from the ignition. It was a clear day, 3:00 o’clock in the
afternoon, and the probability of a poor recollection is nil. Catherine Manalo was able to see Sgt. Elmer
Vergara while on board the Gallant (sic) Sigma Car when it was trailing her car and also at the time it was
passing her car until her path was blocked and the three (3) armed malefactors disembarked. She had
sufficient time to recollect the faces of the persons who approached the car and their respective
positions. There is no reason to doubt her unerring testimony that she was able to positively remember
and then later on identified the robbers. Between the positive declaration of Catherine Manalo and the
denial of accused Elmer Vergara, the former deserves more credence, notwithstanding minor
inaccuracies as to the height and weight and styling of the hair of accused Elmer Vergara.

x x x

Conceding the fact that accused Elmer Vergara was in San Pedro, Laguna, it is not physically impossible
for him to have gone to Pasig, Metro Manila, considering that he had an available means of
transportation. The distance between San Pedro, Laguna where the accused claimed he was at the time
the robbery took place, and Pasig, Metro Manila, where the crime was committed, is less than an hour
drive by car and can easily be reached by one who, like the accused Elmer Vergara, had a car available to
him. 6

Aggrieved by his conviction, Vergara elevated the case to the Court of Appeals, docketed as CA-G.R. CR
No. 18318, on the sole issue of whether or not petitioner committed the crime charged against him. The
appeal was anchored on two grounds: (1) the alleged dubious identification of Vergara by the private
complainant, and (2) failure of the trial court to appreciate Vergara’s alibi that he was on an intelligence
mission in San Pedro, Laguna at the time the alleged robbery, specially in view of the corroboration of
his alibi by his commanding officer.

Finding no reversible error in the findings and conclusions of the trial court, the Court of Appeals
affirmed Vergara’s conviction. The appellate court said:chanrob1es virtual 1aw library

In the case at bench (sic), the prosecution had proven the identity of accused-appellant beyond
reasonable doubt through the testimonies of prosecution witnesses Villanueva and Manalo. Appellant
failed to controvert the testimony of prosecution witness Villanueva that accused-appellant was pointed
to by witness Manalo out of nine (9) persons. Thus, the trial court had no reason to consider the
identification made by witness Manalo in the police station as one that stemmed from a suggestive
identification procedure used by the police.

The trial court was correct in regarding the difference in height as a minor matter. What is vital is that
the witness recognized accused in the line-up and reiterated her identification of accused-appellant in
open court. In the absence of ill-motive on her part to testify falsely against accused-appellant, the trial
court is correct in giving full faith and credence to the testimony of witness Manalo. 7

84
Petitioner timely filed a motion for reconsideration, but it was denied by the appellate court in its
resolution of March 26, 1997.

Insisting on his innocence, petitioner now submits to this Court the following sole assignment of
error:chanrob1es virtual 1aw library

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING MORE CREDENCE TO THE TESTIMONY
OF COMPLAINANT CATHERINE MANALO THAN THE TESTIMONIES OF THE ACCUSED AND HIS WITNESS
AND CONSEQUENTLY FURTHER ERRED IN FINDING THE ACCUSED GUILTY OF THE CRIME BEYOND
REASONABLE DOUBT. 8

The issue of whether or not the guilt of the accused had been proven beyond reasonable doubt hinges,
in our view, on the credibility of witnesses presented by the prosecution and the defense. Crucial in this
regard is the identification made by the complaining witness, Catherine Manalo, of the petitioner, Sgt.
Elmer T. Vergara, as one of the malefactors.

Petitioner vehemently insists that the contradictions in Catherine Manalo’s testimony are not mere
minor inconsistencies. According to petitioner, while private complainant below described him as
around 5’6" -5’7" tall, weighing about 160-165 lbs., and sporting a military haircut; in truth, he is only
5’3-1/2" tall, tips the scale at less than 150 lbs., and had long hair at the time of the incident. Given
these discrepancies, petitioner insists that private complainant below must have been referring to
another person and not to him.

Basically, petitioner’s contention raises questions of facts, which traditionally fall within the province of
the trial court and the Court of Appeals. After reviewing the records of this case, we find no reason to
disturb the assessment of the trial court of all the pieces of evidence submitted before it, particularly as
its findings and conclusions had been affirmed by the appellate court.

In this case, petitioner has been convicted on the basis of the positive identification made by private
complainant below. As the Court of Appeals stressed, petitioner was categorically identified by the
private complainant not just once, but twice, as one of the armed men who robbed her. The first time
was during the police line-up of nine (9) persons on October 27, 1990 and the second time was during
her testimony in open court. The records show that private complainant had no motive to falsely testify
against petitioner. We agree with the lower courts that the discrepancies in the private complainant’s
description are not decisive. Her description was based on visual estimates, which cannot be expected
to be perfect. What is decisive is that petitioner was positively and categorically identified as one of the
robbers, not just once but twice, by private complainant, Catherine Manalo. Her recollection of his
description might suffer from imperfection regarding his height, weight and personal appearance. But
we note less. Jurisprudence recognizes that victims of crime have a penchant for seeing the faces and
features of their attackers, and remembering them. 9 That some variance as to petitioner’s height and
weight might exist in her recollection, in comparison to his statistical measurement does not destroy her
credibility. That the trial court found this variance inconsequential does not render its findings on the
credibility of witnesses erroneous. Such findings are accorded great respect and will be sustained by the
appellate courts unless the trial court overlooked, misunderstood, or misapplied some facts or
circumstances of weight and substance which could alter the decision or affect the result of the case. 10
Here, the important thing is that complaining witness Catherine Manalo identified the petitioner as one
of the perpetrators of the robbery twice, without any presumptions or suggestion from the police at the
line-up or the court at the trial.

Petitioner also argues that the prosecution failed to contradict his alibi. He submits that the prosecution
failed to prove that he had a car available to him, or that he drove one from San Pedro, Laguna to Pasig,
Metro Manila. Petitioner further insists that the trial court’s finding that the place where the crime was
committed is less than an hour’s drive by car and can easily be reached by one who, like petitioner, had
a car available to him, is erroneous and unsupported by the evidence on record.

Judicial notice could be taken of the travel time by car from San Pedro, Laguna to Pasig City, Metro
Manila, because it is capable of unquestionable demonstration, and nowadays is already of public

85
knowledge, especially to commuters. 11 We find no error in the trial court’s finding that it was not
impossible for petitioner to be at the scene of the crime, despite his alibi that he was engaged in
intelligence work in San Pablo Laguna that same afternoon of October 19, 1990.

For alibi to prosper, it would not be enough for the accused to prove that he was elsewhere when the
crime was committed. He must further demonstrate that it would have been physically impossible for
him to have been at the scene of the crime at the time of its commission. 12 It is essential that credible
and tangible proof of physical impossibility for the accused to be at the scene of the crime be presented
to establish an acceptable alibi. 13 Petitioner failed to meet this test. While petitioner could have been
working as intelligence agent in San Pedro, Laguna from October 19-21, 1990, contrary to his claim, it
was not physically impossible for him to have been in Pasig City, Metro Manila on the day of the
commission of the crime.

Petitioner’s insistence that he had no vehicle available to him is not supported by the testimony of his
own commanding officer who testified in petitioner’s defense, to wit:chanrob1es virtual 1aw library

FISCAL: CROSS EXAMINATION:chanrob1es virtual 1aw library

Q: Mr. Witness, what mode of transportation did you take in going to Laguna in (sic) October 19, 1990.

A: We used cars.

Q: What vehicle?

A: Toyota Corona ‘78 model and a Galant, old model.

Q: And in what particular vehicle did you yourself used?

A: Toyota Corona and another car as a back-up vehicle.

x x x

Q: Who arrived ahead, your car or the car of the accused?

A: We arrived together because we traveled not far with each other, we maintained the distance of
three to five meters, ma’m.

Q: How many were you?

A: Normally, up to nine members of the team, but in that operation I think, seven or six members, ma’m.

x x x

Q: Who were the companions of Vergara where he was riding?

A: It was Sgt. San Jose who was driving the car, together with Sgt. Magno and Sgt. Rubi.

Q: How about you, who were your companions?

A: I was with the other car, with a civilian driver, and I cannot recall anymore whom I was with at the
time. 14

Nor was his commanding officer’s corroborative testimony of much help in sustaining petitioner’s alibi,
as shown by the following:chanrob1es virtual 1aw library

FISCAL:chanrob1es virtual 1aw library

86
What is your basis that Vergara was with you at about 3:00 in the afternoon of October 19, 1990?

A: What do you mean basis? His physical presence in the area is my basis, ma’m, that he was there.

Q: Do you keep an attendance record or attendance book of the members of the team?

A: We do not normally do it once we left for an operation, we believe it is not necessary to account
every minute every hour of the operation, so long as we are in the area, target area and every body (sic)
is posted on our designated position, as soon as the signal is already given then that’s the time we will
respond or arrest the guy, but I can say that Sgt. Vergara never left the place until the 21st of October,
he was there in Pacita Complex, ma’m.

Q: In other cases where you conducted surveillance do you maintain a logbook?

A: The log book is filled up only, I mean we do the logging prior and after the operation, that’s the time
we placed the preparations or extent of our operation, that’s the time we entered this in the log book
and when we returned from the operation, we also registered about the result of the operation.

x x x

Q: You do not likewise keep a call or make a roll call or keep attendance record?

A: It is automatic ma’m, everytime, during the operation we see to it that all the persons were in the
arca at the time we registered ourselves in the logbook.

Q: In your team, who in particular is assigned to keep track of the attendance?

A: Being the team leader, I am the one in charge to keep the movements of every members (sic) of the
team, but when I left on 19th October proceeding to Makati, I specifically gave instructions to maintain
the operation and see to it that they have new informations (sic) or new development of the case they
have to call me by radio so that I can come back in the area, that was the instruction to the assistant
team leader whenever I left the area.

Q: So I understand that you do not go with the members of the team during the whole period or
duration of the surveillance.

A: Sometimes, ma’m, there are instances. In that particular instance I left my men at about 1130 in the
evening of 19th October, I left my team and back again in the early morning of 20 October. 15

There were far too many glaring lapses in the testimony of petitioner’s corroborative witness for
petitioner’s alibi to be given much weight, thus:chanrob1es virtual 1aw library

Q: And what was that particular mission in San Pedro, Laguna on October 19, 1990?

A: We were supposed to conduct a buy-bust operation with the aid of our informant, an errand boy of
the subject pusher.

Q: Do you know the name of that informant?

A: I cannot recall.

x x x

Q: And in what particular place in Laguna was this suppose(d) surveillance that you will conduct?

A: I cannot recall the name of the street but I know the place, but the street name and the exact number
I cannot recall.

87
x x x

Q: What place?

A: I cannot recall.

Q: What is the number?

A: I cannot recall

Q: Who was the subject?

A: It was a certain alias German. ma’m.

x x x

COURT:chanrob1es virtual 1aw library

Is a certain Nicasio Custodio y Abrera a member of your team?

A: I think during that time.

x x x

COURT:chanrob1es virtual 1aw library

On October 19, 1990, will you recall if he was with you?

A: I cannot recall, your honor. 16

In the case of alibi, it is elementary that the requirements of time and place be strictly complied with by
the defense, meaning that the accused must not only show that he was somewhere else but that it was
also physically impossible for him to have been at the scene of the crime at the time it was committed.
17

In the light of private complainant’s positive identification of petitioner as the perpetrator of the crime,
the latter’s defense of bare denial and alibi must necessarily fail, as her positive testimony overrides his
negative testimony. 18 Alibi is a weak defense that becomes even weaker in the face of positive
identification of the accused. 19 Further, an alibi cannot prevail over the positive identification of the
petitioner by a credible witness who has no motive to testify falsely. 20

WHEREFORE, the instant petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. No.
CR 18318 is hereby AFFIRMED. Costs against the petitioner.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

EN BANC

G.R. Nos. 146710-15. April 3, 2001

JOSEPH E. ESTRADA, Petitioner, vs. ANIANO DESIERTO, in his capacity as Ombudsman, RAMON
GONZALES, VOLUNTEERS AGAINST CRIME AND CORRUPTION, GRAFT FREE PHILIPPINES FOUNDATION,
INC., LEONARD DE VERA, DENNIS FUNA, ROMEO CAPULONG and ERNESTO B. FRANCISCO,
JR., Respondents.

88
[G.R. No. 146738. April 3, 2001

JOSEPH E. ESTRADA, Petitioner, vs. GLORIA MACAPAGAL-ARROYO, Respondent.

RESOLUTION

PUNO, J.:

For resolution are petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and Omnibus Motion
in G.R. No. 146738 of the Courts Decision of March 2, 2001.

In G.R. Nos. 146710-15, petitioner raises the following grounds:

I. IT DISREGARDED THE CLEAR AND EXPLICIT PROVISIONS OF ART. XI, SECTION 3 (7) OF THE
CONSTITUTION AND THE SETTLED JURISPRUDENCE THEREON.

II. IT HELD THAT PETITIONER CAN BE PROSECUTED NOW, FOR THIS RULING WOULD VIOLATE THE
DOUBLE JEOPARDY CLAUSE OF THE CONSTITUTION, CONSIDERING THAT PETITIONER WAS ACQUITTED
IN THE IMPEACHMENT PROCEEDINGS.

III. IT HELD THAT PETITIONER IS NO LONGER ENTITLED TO ABSOLUTE IMMUNITY FROM SUIT.

IV. IT HELD THAT PETITIONERS DUE PROCESS RIGHTS TO A FAIR TRIAL HAVE NOT BEEN PREJUDICED BY
PRE-TRIAL PUBLICITY.

V. IT HELD THAT THERE IS NOT ENOUGH EVIDENCE TO WARRANT THE COURT TO ENJOIN THE
PRELIMINARY INVESTIGATION OF THE INCUMBENT OMBUDSMAN, PETITIONER HAVING FAILED TO
PROVE THE IMPAIRED CAPACITY OF THE OMBUDSMAN TO RENDER A BIASED FREE DECISION.

In G.R. No. 146738, petitioner raises and argues the following issues:

1. WHETHER PETITIONER RESIGNED OR SHOULD BE CONSIDERED RESIGNED AS OF JANUARY 20, 2001;

2. WHETHER THE ANGARA DIARY IS INADMISSIBLE FOR BEING VIOLATIVE OF THE FOLLOWING RULES ON
EVIDENCE: HEARSAY, BEST EVIDENCE, AUTHENTICATION, ADMISSIONS AND RES INTER ALIOS ACTA;

3. WHETHER RELIANCE ON NEWSPAPER ACOUNTS IS VIOLATIVE OF THE HEARSAY RULE;

4. WHETHER CONGRESS POST FACTO CAN DECIDE PETITIONERS INABILITY TO GOVERN CONSIDERING
SECTION 11, ARTICLE VII OF THE CONSTITUTION; and

5. WHETHER PREJUDICIAL PUBLICITY HAS AFFECTED PETITIONERS RIGHT TO FAIR TRIAL.

We find the contentions of petitioner bereft of merit.

Prejudicial Publicity on the Court

Petitioner insists he is the victim of prejudicial publicity. Among others, he assails the Decision for
adverting to newspaper accounts of the events and occurrences to reach the conclusion that he has
resigned. In our Decision, we used the totality test to arrive at the conclusion that petitioner has
resigned. We referred to and analyzed events that were prior, contemporaneous and posterior to the
oath-taking of respondent Arroyo as president. All these events are facts which are well-established
and cannot be refuted. Thus, we adverted to prior events that built up the irresistible pressure for the
petitioner to resign. These are: (1) the expose of Governor Luis Chavit Singson on October 4, 2000; (2)
the I accuse speech of then Senator Teofisto Guingona in the Senate; (3) the joint investigation of the
speech of Senator Guingona by the Blue Ribbon Committee and the Committee on Justice; (4) the

89
investigation of the Singson expose by the House Committee on Public Order and Security; (5) the move
to impeach the petitioner in the House of Representatives; (6) the Pastoral Letter of Archbishop Jaime
Cardinal Sin demanding petitioners resignation; (7) a similar demand by the Catholic Bishops
conference; (8) the similar demands for petitioners resignation by former Presidents Corazon C. Aquino
and Fidel V. Ramos; (9) the resignation of respondent Arroyo as Secretary of the DSWD and her call for
petitioner to resign; (10) the resignation of the members of petitioners Council of Senior Economic
Advisers and of Secretary Mar Roxas III from the Department of Trade and Industry; (11) the defection
of then Senate President Franklin Drilon and then Speaker of the House of Representatives Manuel Villar
and forty seven (47) representatives from petitioners Lapiang Masang Pilipino; (12) the transmission of
the Articles of Impeachment by Speaker Villar to the Senate; (13) the unseating of Senator Drilon as
Senate President and of Representative Villar as Speaker of the House; (14) the impeachment trial of the
petitioner; (15) the testimonies of Clarissa Ocampo and former Finance Secretary Edgardo Espiritu in the
impeachment trial; (16) the 11-10 vote of the senator-judges denying the prosecutors motion to open
the 2nd envelope which allegedly contained evidence showing that petitioner held a P3.3 billion deposit
in a secret bank account under the name of Jose Velarde; (17) the prosecutors walkout and resignation;
(18) the indefinite postponement of the impeachment proceedings to give a chance to the House of
Representatives to resolve the issue of resignation of their prosecutors; (19) the rally in the EDSA Shrine
and its intensification in various parts of the country; (20) the withdrawal of support of then Secretary of
National Defense Orlando Mercado and the then Chief of Staff, General Angelo Reyes, together with the
chiefs of all the armed services; (21) the same withdrawal of support made by the then Director General
of the PNP, General Panfilo Lacson, and the major service commanders; (22) the stream of resignations
by Cabinet secretaries, undersecretaries, assistant secretaries and bureau chiefs; (23) petitioners
agreement to hold a snap election and opening of the controversial second envelope. All these prior
events are facts which are within judicial notice by this Court. There was no need to cite their news
accounts. The reference by the Court to certain newspapers reporting them as they happened does
not make them inadmissible evidence for being hearsay. The news account only buttressed these
facts as facts. For all his loud protestations, petitioner has not singled out any of these facts as false.

We now come to some events of January 20, 2001 contemporaneous to the oath taking of respondent
Arroyo. We used the Angara Diary to decipher the intent to resign on the part of the petitioner. Let it be
emphasized that it is not unusual for courts to distill a persons subjective intent from the evidence
before them. Everyday, courts ascertain intent in criminal cases, in civil law cases involving last wills and
testaments, in commercial cases involving contracts and in other similar cases. As will be discussed
below, the use of the Angara Diary is not prohibited by the hearsay rule. Petitioner may disagree with
some of the inferences arrived at by the Court from the facts narrated in the Diary but that does not
make the Diary inadmissible as evidence.

We did not stop with the contemporaneous events but proceeded to examine some events posterior to
the oath-taking of respondent Arroyo. Specifically, we analyzed the all important press release of the
petitioner containing his final statement which was issued after the oath-taking of respondent Arroyo as
president. After analyzing its content, we ruled that petitioners issuance of the press release and his
abandonemnt of Malacaang Palace confirmed his resignation. 1 These are overt acts which leave no
doubt to the Court that the petitioner has resigned.

In light of this finding that petitioner has resigned before 12 oclock noon of Janaury 20, 2001, the
claim that the office of the President was not vacant when respondent Arroyo took her oath of office
at half past noon of the same day has no leg to stand on.

We also reject the contention that petitioners resignation was due to duress and an involuntary
resignation is no resignation at all.

x x x [I]t has been said that, in determining whether a given resignation is voluntarily tendered, the
element of voluntariness is vitiated only when the resignation is submitted under duress brought on by
government action. The three-part test for such duress has been stated as involving the following
elements: (1) whether one side involuntarily accepted the others terms; (2) whether circumstances
permitted no other alternative; and (3) whether such circumstances were the result of coercive acts of
the opposite side. The view has also been expressed that a resignation may be found involuntary if on
the totality of the circumstances it appears that the employers conduct in requesting

90
resignation effectively deprived the employer of free choice in the matter. Factors to be considered,
under this test, are: (1) whether the employee was given some alternative to resignation; (2) whether
the employee understood the nature of the choice he or she was given; (3) whether the employewe was
given a reasonable time in which to choose; and (4) whether he or she was permitted to select the
effective date of resignation. In applying this totality of the circumstances test, the assessment whether
real alternatives were offered must be gauged by an objective standard rather than by the employees
purely subjective evaluation; that the employee may perceive his or her only option to be resignation
for example, because of concerns about his or her reputation is irrelevant. Similarly, the mere fact
that the choice is between comparably unpleasant alternatives for example, resignation or facing
disciplinary charges does not of itself establish that a resignation was induced by duress or coercion,
and was therefore involuntary. This is so even where the only alternative to resignation is facing
possible termination for cause, unless the employer actually lacked good cause to believe that grounds
for termination existed. In this regard it has also been said that a resignation resulting from a choice
between resigning or facing proceedings for dismissal is not tantamount to discharge by coercion
without procedural view if the employee is given sufficient time and opportunity for deliberation of the
choice posed. Futhermore, a resignation by an officer charged with misconduct is not given under
duress, though the appropriate authority has already determined that the officers alternative is
termination, where such authority has the legal authority to terminate the officers employment under
the particular circumstances, since it is not duress to threaten to do what one has the legal right to do,
or to threaten to take any measure authorized by law and the circumstances of the
case.2cräläwvirtualibräry

In the cases at bar, petitioner had several options available to him other than resignation. He proposed
to the holding of snap elections. He transmitted to the Congress a written declaration of temporary
inability. He could not claim he was forced to resign because immediately before he left Malacaang, he
asked Secretary Angara: Ed, aalis na ba ako? which implies that he still had a choice of whether or not to
leave.

To be sure, pressure was exerted for the petitioner to resign. But it is difficult to believe that the
pressure completely vitiated the voluntariness of the petitioners resignation. The Malacaang ground
was then fully protected by the Presidential Security Guard armed with tanks and high-powered
weapons. The then Chief of Staff, General Angelo Reyes, and other military officers were in Malacaang
to assure that no harm would befall the petitioner as he left the Palace. Indeed, no harm, not even a
scratch, was suffered by the petitioner, the members of his family and his Cabinet who stuck it out with
him in his last hours. Petitioners entourage was even able to detour safely to the Municipal Hall of San
Juan and bade goodbye to his followers before finally going to his residence in Polk Street, Greenhills.
The only incident before the petitioner left the Palace was the stone throwing between a small group of
pro and anti Erap rallyists which resulted in minor injuries to a few of them. Certainly, there were no
tanks that rumbled through the Palace, no attack planes that flew over the presidential residence, no
shooting, no large scale violence, except verbal violence, to justify the conclusion that petitioner was
coerced to resign.

II

Evidentiary Issues

Petitioner devotes a large part of his arguments on the alleged improper use by this Court of the Angara
Diary. It is urged that the use of the Angara Diary to determine the state of mind of the petitioner on
the issue of his resignation violates the rule against the admission of hearsay evidence.

We are unpersuaded. To begin with, the Angara diary is not an out of court statement. The Angara
Diary is part of the pleadings in the cases at bar. Petitioner cannot complain he was not furnished a
copy of the Angara Diary. Nor can he feign surprise on its use. To be sure, the said Diary was frequently
referred to by the parties in their pleadings. 3 The three parts of the Diary published in the PDI from
February 4-6, 2001 were attached as Annexes A-C, respectively, of the Memorandum of private
respondents Romeo T. Capulong, et al., dated February 20, 2001. The second and third parts of the Diary
were earlier also attached as Annexes 12 and 13 of the Comment of private respondents Capulong, et al.,
dated February 12, 2001. In fact, petitioner even cited in his Second Supplemental Reply Memorandum

91
both the second part of the diary, published on February 5, 2001, 4 and the third part, published on
February 6, 2001. 5 It was also extensively used by Secretary of Justice Hernando Perez in his oral
arguments. Thus, petitioner had all the opportunity to contest the use of the Diary but unfortunately
failed to do so.

Even assuming arguendo that the Angara Diary was an out of court statement, still its use is not covered
bythe hearsay rule. 6 Evidence is called hearsay when its probative force depends, in whole or in part, on
the competency and credibility of some persons other than the witness by whom it is sought to produce
it. 7 There are three reasons for excluding hearsay evidence: (1) absence of cross examination; (2)
absence of demeanor evidence, and (3) absence of the oath. 8 Not at all hearsay evidence, however, is
inadmissible as evidence. Over the years, a huge body of hearsay evidence has been admitted by courts
due to their relevance, trustworthiness and necessity. 9 The emergence of these exceptions and their
wide spread acceptance is well-explained by Weinstein, Mansfield, Abrams and Berger as follows:

xxx

On the other hand, we all make decisions in our everyday lives on the basis of other persons accounts of
what happened, and verdicts are usually sustained and affirmed even if they are based on hearsay
erroneously admitted, or admitted because no objection was made. See Shepp v. Uehlinger, 775 F 2d
452, 454-455 (1st Cir. 1985) (hearsay evidence alone can support a verdict). Although volumes have
been written suggesting ways to revise the hearsay rule, no one advocates a rule that would bar all
hearsay evidence. Indeed, the decided historical trend has been to exclude categories of highly
probative statements from the definition of hearsay (sections 2 and 3, infra), and to develop more
class exceptions to the hearsay rule (sections 4-11, infra). Furthermore, many states have added to
their rules the residual, or catch-all, exceptions first pioneered by the Federal Rules which authorize
the admission of hearsay that does not satisfy a class exception, provided it is adequately trustworthy
and probative (section 12, infra).

Moreover, some commentators believe that the hearsay rule should be abolished altogether instead
of being loosened. See, e.g., Note, The Theoretical Foundation of the Hearsay Rules, 93 Harv.L.Rev.
1786, 1804-1805, 1815 (1980) (footnotes omitted):

The Federal Rules of Evidence provide that [a]lthough relevant, evidence may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. Under this structure,
exclusion is justified by fears of how the jury will be influenced by the evidence. However, it is not
traditional to think of hearsay as merely a subdivision of this structure, and the Federal Rules do not
conceive of hearsay in that manner. Prejudice refers to the jurys use of evidence for inferences other
than those for which the evidence is legally relevant; by contrast, the rule against hearsay questions the
jurys ability to evaluate the strength of a legitimate inference to be drawn from the evidence. For
example, were a judge to exclude testimony because a witness was particularly smooth or convincing,
there would be no doubt as to the usurpation of the jurys function. Thus, unlike prejudices recognized
by the evidence rules, such as those stemming from racial or religious biases or from the introduction of
photographs of a victims final state, the exclusion of hearsay on the basis of misperception strikes at the
root of the jurys function by usurping its power to process quite ordinary evidence, the type of
information routinely encountered by jurors in their everyday lives.

Since virtually all criteria seeking to distinguish between good and bad hearsay are either incoherent,
inconsistent, or indeterminate, the only altenative to a general rule of admission would be an absolute
rule of exclusion, which is surely inferior. More important, the assumptions necessary to justify a rule
against hearsay seem insupportable and, in any event, are inconsistent with accepted notions of the
function of the jury. Therefore, the hearsay rules should be abolished.

Some support for this view can be found in the limited empirical research now available which is,
however, derived from simulations that suggests that admitting hearsay has little effect on trial
outcomes because jurors discount the value of hearsay evidence. See Rakos & Landsman, Researching
the Hearsay Rule: Emerging Findings, General Issues, and Future Directions, 76 Minn.L.Rev. 655 (1992);
Miene, Park, & Borgidas, Jury Decision Making and the Evaluation of Hearsay Evidence, 76 Minn.L.Rev.
683 (1992); Kovera, Park, & Penrod, Jurors Perceptions of Eyewitness and Hearsay Evidence, 76

92
Minn.L.Rev. 703 (1992); Landsman & Rakos, Research Essay: A Preliminary Empirical Enquiry Concerning
the prohibition of Hearsay Evidence in American Courts, 15 Law & Psychol. Rev. 65 (1991).

Others, even if they concede that restrictions on hearsay have some utility, question whether the
benefits outweigh the cost:

The cost of maintaining the rule is not just a function of its contribution to justice. It also includes the
time spent on litigating the rule. And of course this is not just a cost voluntarily borne by the parties, for
in our system virtually all the cost of the court salaries, administrative costs, and capital costs are borne
by the public. As expensive as litigation is for the parties, it is supported by an enormous public
subsidy. Each time a hearsay question is litigated, the public pays. The rule imposes other costs as well.
Enormous time is spent teaching and writing about the hearsay rule, which are both costly enterprises.
In some law schools, students spend over half their time in evidence classes learning the intricacies of
the hearsay rule, and enormous academic resources are expended on the rule.

Allen, Commentary on Professor Friendmans Article: The Evolution of the Hearsay Rule to a Rule of
Admission, 76 Minn.L.Rev. 797, 800 [1992] (but would abolish rule only in civil cases). See also Friedman,
Toward a Partial Economic, Game-Theoretic Analysis of Hearsay, 76 Minn. L. Rev. 723
(1992).10cräläwvirtualibräry

A complete analysis of any hearsay problem requires that we further determine whether the hearsay
evidence is one exempted from the rules of exclusion. A more circumspect examination of our rules of
exclusion will show that they do not cover admissions of a party and the Angara Diary belongs to this
class. Section 26 of Rule 130 provides that the act, declaration or omission of a party as to a relevant
fact may be given in evidence against him. 11 It has long been settled that these admissions are
admissible even if they are hearsay. Retired Justice Oscar Herrera of the Court of Appeals cites the
various authorities who explain why admissions are not covered by the hearsay
rule: 12cräläwvirtualibräry

Wigmore, after pointing out that the partys declaration has generally the probative value of any other
persons asssertion, argued that it had a special value when offered against the party. In that
circumstance, the admission discredits the partys statement with the present claim asserted in
pleadings and testimony, much like a witness impeached by contradictory statements. Moreover, he
continued, admissions pass the gauntlet of the hearsay rule, which requires that extrajudicial assertions
be excluded if there was no opportunity for the opponent to cross-examine because it is the opponents
own declaration, and he does not need to cross examine himself. Wigmore then added that the
Hearsay Rule is satisfied since the party now as opponent has the full opportunity to put himself on the
stand and explain his former assertion. (Wigmore on evidence, Sec. 1048 (Chadbourn Rev. 1972), cited
in Sec. 154, McCormick)

According to Morgan: The admissibility of an admission made by the party himself rests not upon any
notion that the circumstances in which it was made furnish the trier means of evaluating it fairly, but
upon the adversary theory of litigation. A party can hardly object that he had no opportunity to cross-
examine himself or that he is unworthy of credence save when speaking under sanction of an oath.

A mans acts, conduct, and declaration, wherever made, if voluntary, are admissible against him, for the
reason that it is fair to presume that they correspond with the truth, and it is his fault if they do not. (U.S.
vs. Ching Po, 23 Phil. 578, 583).

The Angara Diary contains direct statements of petitioner which can be categorized as admissions of a
party: his proposal for a snap presidential election where he would not be a candidate; his statement
that he only wanted the five-day period promised by Chief of Staff Angelo Reyes; his statements that he
would leave by Monday if the second envelope would be opened by Monday and Pagod na pagod na
ako. Ayoko na, masyado nang masakit. Pagod na ako sa red tape, bureaucracy, intriga. (I am very tired. I
dont want any more of this its too painful. Im tired of the red tape, the bureaucracy, the intrigue). I just
want to clear my name, then I will go. We noted that days before, petitioner had repeatedly declared
that he would not resign despite the growing clamor for his resignation. The reason for the meltdown is
obvious - - - his will not to resign has wilted.

93
It is, however, argued that the Angara Diary is not the diary of the petitioner, hence, non-binding on
him. The argument overlooks the doctrine of adoptive admission. An adoptive admission is a partys
reaction to a statement or action by another person when it is reasonable to treat the partys reaction as
an admission of something stated or implied by the other person. 13 Jones explains that the basis for
admissibility of admissions made vicariously is that arising from the ratification or adoption by the
party of the statements which the other person had made. 14 To use the blunt language of Mueller and
Kirkpatrick, this process of attribution is not mumbo jumbo but common sense. 15 In the Angara Diary ,
the options of the petitioner started to dwindle when the armed forces withdrew its support from him
as President and commander-in-chief. Thus, Executive Secretary Angara had to ask Senate President
Pimentel to advise petitioner to consider the option of dignified exit or resignation . Petitioner did not
object to the suggested option but simply said he could never leave the country. Petitioners silence on
this and other related suggestions can be taken as an admission by him. 16cräläwvirtualibräry

Petitioner further contends that the use of the Angara diary against him violated the rule on res inter
alios acta. The rule is expressed in section 28 of Rule 130 of the Rules of Court, viz: The rights of a party
cannot be prejudiced by an act, declaration, or omission of another, except as hereinafter provided.

Again, petitioner errs in his contention. The res inter alios acta rule has several exceptions. One of them
is provided in section 29 of Rule 130 with respect to admissions by a co-partner or agent.

Executive Secretary Angara as such was an alter ego of the petitioner. He was the Little President.
Indeed, he was authorized by the petitioner to act for him in the critical hours and days before he
abandoned Malacaang Palace. Thus, according to the Angara Diary, the petitioner told Secretary
Angara: Mula umpisa pa lang ng kampanya, Ed, ikaw na lang pinakikinggan ko. At hanggang sa huli, ikaw
pa rin. (Since the start of the campaign, Ed, you have been the only one Ive listened to. And now at the
end, you still are.) 17 This statement of full trust was made by the petitioner after Secretary Angara
briefed him about the progress of the first negotiation . True to this trust, the petitioner had to ask
Secretary Angara if he would already leave Malacaang after taking their final lunch on January 20, 2001
at about 1:00 p.m. The Angara Diary quotes the petitioner as saying to Secretary Angara: ed, kailangan
ko na bang umalis? (Do I have to leave now?) 18 Secretary Angara told him to go and he did. Petitioner
cannot deny that Secretary Angara headed his team of negotiators that met with the team of the
respondent Arroyo to discuss the peaceful and orderly transfer of power after his relinquishment of the
powers of the presidency. The Diary shows that petitioner was always briefed by Secretary Angara on
the progress of their negotiations. Secretary Angara acted for and in behalf of the petitioner in the
crucial days before respondent Arroyo took her oath as President. Consequently, petitioner is bound by
the acts and declarations of Secretary Angara.

Under our rules of evidence, admissions of an agent (Secretary Angara) are binding on the principal
(petitioner). 19 Jones very well explains the reasons for the rule , viz: What is done, by agent, is done by
the principal through him, as through a mere instrument. So, whatever is said by an agent, either in
making a contract for his principal, or at the time and accompanying the performance of any act within
the scope of his authority, having relation to, and connected with, and in the course of the particular
contract or transaction in which he is then engaged, or in the language of the old writers, dum fervet
opus is, in legal effect, said by his principal and admissible in evidence against such
principal. 20cräläwvirtualibräry

Moreover, the ban on hearsay evidence does not cover independently relevant statements. These are
statements which are relevant independently of whether they are true or not. They belong to two (2)
classes: (1) those statements which are the very facts in issue, and (2) those statements which
are circumstantial evidence of the facts in issue. The second class includes the
following: 21cräläwvirtualibräry

a. Statement of a person showing his state of mind, that is, his mental condition, knowledge, belief,
intention, ill will and other emotions;

b. Statements of a person which show his physical condition, as illness and the like;

94
c. Statements of a person from which an inference may be made as to the state of mind of another,
that is, the knowledge, belief, motive, good or bad faith, etc. of the latter;

d. Statements which may identify the date, place and person in question; and

e. Statements showing the lack of credibility of a witness.

Again, Jones tells us why these independently relevant statements are not covered by the prohibition
against hearsay evidence: 22cräläwvirtualibräry

1088. Mental State or Condition Proof of Knowledge.- There are a number of comon issues, forming a
general class, in proof of which hearsay is so obviously necessary that it is not customary to refer to its
admissibility as by virtue of any exception to the general exclusionary rule. Admissibility, in such cases, is
as of course. For example, where any mental state or condition is in issue, such as motive, malice,
knowledge, intent, assent or dissent, unless direct testimony of the particular person is to be taken as
conclusive of his state of mind, the only method of proof available is testimony of others to the acts or
statements of such person. Where his acts or statements are against his interest, they are plainly
admissible within the rules hereinabove announced as to admissions against interest. And even where
not against interest, if they are so closely connected with the event or transaction in issue as to
constitute one of the very facts in controversy, they become admissible of necessity.

As aforediscussed, The Angara Diary contains statements of the petitioner which reflect his state of
mind and are circumstantial evidence of his intent to resign. It also contains statements of Secretary
Angara from which we can reasonably deduce petitioners intent to resign. They are admissible and they
are not covered by the rule on hearsay. This has long been a quiet area of our law on evidence and
petitioners attempt to foment a belated tempest cannot receive our imprimatur.

Petitioner also contends that the rules on authentication of private writings and best evidence were
violated in our Decision, viz:

The use of the Angara diary palpably breached several hornbook rules of evidence, such as the rule on
authentication of private writings

xxx

A. Rule on Proof of Private Writings Violated

The rule governing private documents as evidence was violated. The law provides that before any
private writing offered as authentic is received in evidence, its due execution and authenticity must be
proved either: a) by anyone who saw the document executed or written, or b) by evidence of the
genuineness of the signature or handwriting of the maker.

xxx

B. Best Evidence Rule Infringed

Clearly, the newspaper reproduction is not the best evidence of the Angara diary. It is secondary
evidence, of dubious authenticity. It was however used by this Honorable Court without proof of the
unavailability of the original or duplicate original of the diary. The Best Evidence Rule should have been
applied since the contents of the diary are the subject of inquiry.

The rule is that, except in four (4) specific instances, [w]hen the subject of inquiry is the contents of a
document, no evidence shall be admissible other than the original document itself.23cräläwvirtualibräry

Petitioners contention is without merit. In regard to the Best Evidence rule, the Rules of Court provides
in sections 2 to 4 of Rule 130, as follows:

95
Sec. 2. Documentary evidence. Documents as evidence consist of writings or any material containing
letters, words, numbers, figures or other modes of written expressions offered as proof of their contents.

Sec. 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of
a document, no evidence shall be admissible other than the original document itself, except in the
following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on
the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is
offered, and the latter fails to produce it after reasonable notice;

(c) When the original consists of numerous accounts or other documents which cannot be examined in
court without great loss of time and the fact sought to be established from them is only the general
result of the whole; and

(d) When the original is a public record in the custody of a public officer or is recorded in a public office.

Sec. 4. Original of document. (a) The original of a document is one the contents of which are the subject
of inquiry.

(b) When a document is in two or more copies executed at or about the same time, with identical
contents, all such copies are equally regarded as originals.

(c) When an entry is repeated in the regular course of business, one being copied from another at or
near the time of the transaction, all the entries are likewise equally regarded as originals.

It is true that the Court relied not upon the original but only copy of the Angara Diary as published in the
Philippine Daily Inquirer on February 4-6, 2001. In doing so, the Court, did not, however, violate the
best evidence rule. Wigmore, in his book on evidence, states that:

Production of the original may be dispensed with, in the trial courts discretion, whenever in the case in
hand the opponent does not bona fide dispute the contents of the document and no other useful
purpose will be served by requiring production.24

xxx

In several Canadian provinces, the principle of unavailability has been abandoned, for certain
documents in which ordinarily no real dispute arised. This measure is a sensible and progressive one and
deserves universal adoption (post, sec. 1233). Its essential feature is that a copy may be used
unconditionally, if the opponent has been given an opportunity to inspect it. (empahsis supplied)

Franciscos opinion is of the same tenor, viz:

Generally speaking, an objection by the party against whom secondary evidence is sought to be
introduced is essential to bring the best evidence rule into application; and frequently, where secondary
evidence has been admitted, the rule of exclusion might have successfully been invoked if proper and
timely objection had been taken. No general rule as to the form or mode of objecting to the admission
of secondary evidence is set forth. Suffice it to say here that the objection should be made in proper
season that is, whenever it appears that there is better evidence than that which is offered and before
the secondary evidence has been admitted. The objection itself should be sufficiently definite to
present a tangible question for the courts consideration.25cräläwvirtualibräry

He adds:

Secondary evidence of the content of the writing will be received in evidence if no objection is made to
its reception.26cräläwvirtualibräry

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In regard to the authentication of private writings, the Rules of Court provides in section 20 of Rule 132,
viz:

Sec. 20. Proof of private document. Before any private document offered as authentic is received in
evidence, its due execution and authenticity must be proved either:

(a) By anyone who saw the document executed or written; or

(b) By evidence of the genuineness of the signature or handwriting of the maker.

Any other private document need only be identified as that which it is claimed to be.

On the rule of authentication of private writings, Francisco states that:

A proper foundation must be laid for the admission of documentary evidence; that is, the identity and
authenticity of the document must be reasonably established as a pre-requisite to its admission. (Rouw
v. Arts, 174 Ark. 79, 294 S.W. 993, 52 A.L.R. 1263, and others) However, a party who does not deny the
genuineness of a proffered instrument may not object that it was not properly identified before it was
admitted in evidence. (Strand v. Halverson, 220 Iowa 1276, 264 N.W. 266, 103 A.L.R.
835).27cräläwvirtualibräry

Petitioner cites the case of State prosecutors v. Muro, 28 which frowned on reliance by courts on
newspaper accounts. In that case, Judge Muro was dismissed from the service for relying on a
newspaper account in dismissing eleven (11) cases against Mrs. Imelda Romualdez Marcos. There is
a significant difference , however, between the Muro case and the cases at bar. In the Muro case, Judge
Muro dismissed the cases against Mrs. Marcos on the basis of a newspaper account without affording
the prosecution the basic opportunity to be heard on the matter by way of a written comment or on
oral argument. . .(this is) not only a blatant denial of elementary due process to the Government but is
palpably indicative of bad faith and partiality. In the instant cases, however, the petitioner had an
opportunity to object to the admissibility of the Angara Diary when he filed his Memorandum dated
February 20, 2001, Reply Memorandum dated February 22, 2001, Supplemental Memorandum dated
February 23, 2001, and Second Supplemental memorandum dated February 24, 2001. He was therefore
not denied due process. In the words of Wigmore, supra , petitioner had been given an opportunity to
inspect the Angara Diary but did not object to its admissibility. It is already too late in the day to raise
his o bjections in an Omnibus Motion, after the Angara Diary has been used as evidence and a decision
rendered partly on the basis thereof.

III

Temporary Inability

Petitioner argues that the Court misinterpreted the meaning of section 11, Article VII, of the
Constitution in that congress can only decide the issue of inability when there is a variance of opinion
between a majority of the Cabinet and the President. The situation presents itself when majority of the
Cabinet determines that the President is unable to govern; later, the President informs Congress that his
inability has ceased but is contradicted by a majority of the members of the Cabinet. It is also urged that
the presidents judgment that he is unable to govern temporarily which is thereafter communicated to
the Speaker of the House and the President of the Senate is the political question which this Court
cannot review.

We cannot sustain the petitioner. Lest petitioner forgets, he himself made the submission in G.R. No.
146738 that Congress has the ultimate authority under the Constitution to determine whether the
President is incapable of performing his functions in the manner provided for in section 11 of Article
VII. 29 We sustained this submission and held that by its many acts, Congress has already determined
and dismissed the claim of alleged temporary inability to govern proffered by petitioner. If petitioner
now feels aggrieved by the manner Congress exercised its power, it is incumbent upon him to seek
redress from Congress itself. The power is conceded by the petitioner to be with Congress and its
alleged erroneous exercise cannot be corrected by this Court. The recognition of respondent Arroyo as

97
our de jure president made by Congress is unquestionably a political judgment. It is significant that
House Resolution No. 176 cited as the bases of its judgment such factors as the peoples loss of
confidence on the ability of former President Joseph Ejercito Estrada to effectively govern and the
members of the international community had extended their recognition of Her Excellency, Gloria
Macapagal-Arroyo as President of the Republic of the Philippines and it has a constitutional duty of
fealty to the supreme will of the people x x x. This political judgment may be right or wrong but
Congress is answerable only to the people for its judgment. Its wisdom is fit to be debated before the
tribunal of the people and not before a court of justice. Needles to state, the doctrine of separation of
power constitutes an inseparable bar against this courts interposition of its power of judicial review to
review the judgment of Congress rejecting petitioners claim that he is still the President, albeit on leave
and that respondent Arroyo is merely an acting President.

Petitioner attempts to extricate himself from his submission that Congress has the ultimate authority to
determine his inability to govern, and whose determination is a political question by now arguing
that whether one is a de jure or de facto President is a judicial question. Petitioners change of theory,
ill disguised as it is, does not at all impress. The cases at bar do not present the general issue of whether
the respondent Arroyo is the de jure or a de facto President. Specific issues were raised to the Court for
resolution and we ruled on an issue by issue basis. On the issue of resignation under section 8, Article
VII of the Constitution, we held that the issue is legal and ruled that petitioner has resigned from office
before respondent Arroyo took her oath as President. On the issue of inability to govern under section
11, Article VII of the Constitution, we held that the Congress has the ultimate authority to determine the
question as opined by the petitioner himself and that the determination of Congress is a political
judgment which this Court cannot review. Petitioner cannot blur these specific rulings by the
generalization that whether one is a de jure or de facto President is a judicial question.

Petitioner now appears to fault Congress for its various acts expressed thru resolutions which brushed
off his temporary inability to govern and President-on-leave argument . He asserts that these acts of
Congress should not be accorded any legal significance because: (1) they are post facto and (2) a
declaration of presidential incapacity cannot be implied.

We disagree. There is nothing in section 11 of Article VII of the Constitution which states that the
declaration by Congress of the Presidents inability must always be a priori or before the Vice-President
assumes the presidency. In the cases at bar, special consideration should be given to the fact that the
events which led to the resignation of the petitioner happened at express speed and culminated on a
Saturday. Congress was then not in session and had no reasonable opportunity to act a priori on
petitioners letter claiming inability to govern. To be sure, however, the petitioner cannot strictly
maintain that the President of the Senate, the Honorable Aquilino Pimentel, Jr. and the then Speaker of
the House of Representatives, the Honorable Arnulfo P. Fuentebella, recognized respondent Arroyo as
the constitutional successor to the presidency post facto. Petitioner himself states that his letter alleging
his inability to govern was received by the Office of the Speaker on January 20, 2001 at 8:30 A.M. and
the Office of the Senate at 9 P.M. of the same day. 30 Respondent took her oath of office a few minutes
past 12 oclock in the afternoon of January 20. Before the oath-taking, Senate President Pimentel, Jr. and
Speaker Fuentebella had prepared a Joint Statement which states : 31

Joint Statement of Support

and Recognition from the
Senate President and the Speaker
Of the House of Representatives

We, the elected leaders of the Senate and the House of Representatives, are called upon to address the
constitutional crisis affecting the authority of the President to effectively govern our distressed nation.
We understand that the Supreme Court at that time is issuing an en banc resolution recognizing this
political reality. While we may differ on the means to effect a change of leadership, we however, cannot
be indifferent and must act resolutely. Thus, in line with our sworn duty to represent our people and in
pursuit of our goals for peace and prosperity to all, we, the Senate President and the Speaker of the
House of Representatives, hereby declare our support and recognition to the constitutional successor
to the Presidency. We similarly call on all sectors to close ranks despite our political differences : May
God bless our nation in this period of new beginnings.

98
Mabuhay and Pilipinas at ang mamamayang Pilipino.

(Sgd.) AQUILINO PIMENTEL, JR.

Senate President

(Sgd.) ARNULFO P. FUENTEBELLA

Speaker of the House of Representatives

This a priori recognition by the President of the Senate and the Speaker of the House of Representatives
of respondent Arroyo as the constitutional successor to the presidency was followed post facto by
various resolutions of the Senate and the House, in effect, confirming this recognition. Thus, Resolution
No. 176 expressed x x x the support of the House of Representatives to the assumption into office by
Vice-President Gloria Macapagal-Arroyo as President of the Republic of the Philippines, extending its
congratulations and expressing its support for her administration as a partner in the attainment of the
nations goal under the Constitution. 32 Resolution No. 82 of the Senate and Resolution No. 178 of the
House of Representatives both confirmed the nomination of then Senator Teofisto Guingona, Jr., as
Vice-President. 33 It also passed Resolution No. 83 declaring the impeachment court functus
officio. 34 Both Houses sent bills to respondent Arroyo to be signed by her into law as President of the
Philippines. 35 These acts of Congress, a priori and post facto, cannot be dismissed as merely implied
recognitions of respondent Arroyo, as the President of the Republic. Petitioners insistence that
respondent Arroyo is just a de facto President because said acts of Congress x x x are mere
circumstances of acquiescence calculated to induce people to submit to respondents exercise of the
powers of the presidency 36 is a guesswork far divorced from reality to deserve further discussion.

Similarly way off the mark is petitioners point that while the Constitution has made Congress the
national board of canvassers for presidential and vice-presidential elections, this Honorable Court
nonetheless remains the sole judge in presidential and vice presidential contests. 37 He thus postulates
that such constitutional provision 38 is indicative of the desire of the sovereign people to keep out of the
hands of Congress questions as to the legality of a persons claim to the presidential office. 39 Suffice to
state that the inference is illogical. Indeed, there is no room to resort to inference. The Constitution
clearly sets out the structure on how vacancies and election contest in the office of the President shall
be decided. Thus, section 7 of Article VII covers the instance when (a) the President-elect fails to qualify,
(b) if a President shall not have been chosen and (c) if at the beginning of the term of the President, the
President-elect shall have died or shall have become permanently disabled. Section 8 of Article
VII covers the situation of the death, permanent disability, removal from office or resignation of the
President. Section 11 of Article VII covers the case where the President transmits to the President of the
Senate and the Speaker of the House of Representatives his written declaration that he is unable to
discharge the powers and duties of his office. In each case, the Constitution specifies the body that will
resolve the issues that may arise from the contingency. In case of election contest, section 4, Article VII
provides that the contests shall be resolved by this Court sitting en banc. In case of resignation of the
President, it is not disputed that this Court has jurisdiction to decide the issue. In case of inability to
govern, section 11 of Article VII gives the Congress the power to adjudge the issue and petitioner himself
submitted this thesis which was shared by this Court. In light of these clear provisions of the
Constitution, it is inappropriate, to say the least, for petitioner to make inferences that simply distort
their meanings.

IV

Impeachment and Absolute Immunity

Petitioner contends that this Court disregarded section 3 (7) of Article XI of the Constitution which
provides:

(7) Judgment in cases of impeachment shall not extend further than removal from office and
disqualification to hold any office under the Republic of the Philippines, but the party convicted should
nevertheless be liable and subject to prosecution, trial and punishment according to law.

99
Petitioner reiterates the argument that he must be first convicted in the impeachment proceedings
before he could be criminally prosecuted. A plain reading of the provision will not yield this conclusion.
The provision conveys two uncomplicated ideas: first, it tells us that judgment in impeachment cases
has a limited reach. . .i.e., it cannot extend further than removal from office and disqualification to hold
any office under the Republic of the Philippines, and second, it tells us the consequence of the limited
reach of a judgment in impeachment proceedings considering its nature, i.e., that the party convicted
shall still be liable and subject to prosecution, trial and punishment according to law. No amount of
manipulation will justify petitioners non sequitur submission that the provision requires that his
conviction in the impeachment proceedings is a condition sine qua non to his prosecution, trial and
punishment for the offenses he is now facing before the respondent Ombudsman.

Petitioner contends that the private and public prosecutors walk out from the impeachment
proceedings should be considered failure to prosecute on the part of the public and private prosecutors,
and the termination of the case by the Senate is equivalent to acquittal. 40 He explains failure to
prosecute as the failure of the prosecution to prove the case, hence dismissal on such grounds is a
dismissal on the merits. 41 He then concludes that dismissal of a case for failure to prosecute amounts to
an acquittal for purposes of applying the rule against double jeopardy. 42cräläwvirtualibräry

Without ruling on the nature of impeachment proceedings, we reject petitioners submission.

The records will show that the prosecutors walked out in the January 16, 2001 hearing of the
impeachment cases when by a vote of 11-10, the Senator-judges refused to open the second envelope
allegedly containing the P3.3 billion deposit of the petitioner in a secret bank account under the name
Jose Velarde. The next day, January 17, the public prosecutors submitted a letter to the Speaker of the
House tendering their resignation. They also filed their Manifestation of Withdrawal of
Appearance with the impeachment tribunal. Senator Raul Roco immediately moved for the indefinite
suspension of the impeachment proceedings until the House of Representatives shall have resolved
the resignation of the public prosecutors. The Roco motion was then granted by Chief Justice Davide,
Jr. Before the House could resolve the issue of resignation of its prosecutors or on January
20, 2001,petitioner relinquished the presidency and respondent Arroyo took her oath as President of
the Republic. Thus, on February 7, 2001,the Senate passed Resolution No. 83 declaring that the
impeachment court is functus officio.

Prescinding from these facts, petitioner cannot invoke double jeopardy. Double jeopardy attaches
only: (1) upon a valid complaint; (2) before a competent court; (3) after arraignment; (4) when a valid
plea has been entered; and (5) when the defendant was acquitted or convicted or the case was
dismissed or otherwise terminated without the express consent of the
accused. 43 Assuming arguendo that the first four requisites of double jeopardy were complied with,
petitioner failed to satisfy the fifth requisite for he was not acquitted nor was the impeachment
proceeding dismissed without his express consent. Petitioners claim of double jeopardy cannot be
predicated on prior conviction for he was not convicted by the impeachment court. At best, his claim of
previous acquittal may be scrutinized in light of a violation of his right to speedy trial, which amounts to
a failure to prosecute. As Bernas points out, a failure to prosecute, which is what happens when the
accused is not given a speedy trial, means failure of the prosecution to prove the case. Hence, dismissal
on such grounds is a dismissal on the merits. 44cräläwvirtualibräry

This Court held in Esmea v. Pogoy 45, viz:

If the defendant wants to exercise his constitutional right to a speedy trial, he should ask, not for the
dismissal, but for the trial of the case. After the prosecutions motion for postponement of the trial is
denied and upon order of the court the fiscal does not or cannot produce his evidence and,
consequently fails to prove the defendants guilt, the court upon defendants motion shall dismiss the
case, such dismissall amounting to an acquittal of the defendant.

In a more recent case, this Court held:

It is true that in an unbroken line of cases, we have held that the dismissal of cases on the ground of
failure to prosecute is equivalent to an acquittal that would bar further prosecution of the accused for

100
the same offense. It must be stressed, however, that these dismissals were predicated on the clear right
of the accused to speedy trial. These cases are not applicable to the petition at bench considering that
the right of the private respondents to speedy trial has not been violated by the State. For this reason,
private respondents cannot invoke their right against double jeopardy.46cräläwvirtualibräry

Petitioner did not move for the dismissal of the impeachment case against him. Even
assuming arguendo that there was a move for its dismissal, not every invocation of an accuseds right to
speedy trial is meritorious. While the Court accords due importance to an accuseds right to a speedy
trial and adheres to a policy of speedy administration of justice, this right cannot be invoked loosely.
Unjustified postponements which prolong the trial for an unreasonable length of time are what offend
the right of the accused to speedy trial. 47 The following provisions of the Revised Rules of Criminal
Procedure are apropos:

Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be
entitled to the following rights:

(h) To have speedy, impartial and public trial.

Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall
continue from day to day as far as practicable until terminated. It may be postponed for a reasonable
length of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous
trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy
trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of
trial, except as otherwise authorized by the Supreme Court.

Petitioner therefore failed to show that the postponement of the impeachment proceedings was
unjustified, much less that it was for an unreasonable length of time. Recalling the facts, on January 17,
2001, the impeachment proceeding was suspended until the House of Representatives shall have
resolved the issue on the resignation of the public prosecutors. This was justified and understandable
for an impeachment proceeding without a panel of prosecutors is a mockery of the impeachment
process. However, three (3) days from the suspension or January 20, 2001, petitioners resignation
supervened. With the sudden turn of events, the impeachment court became functus officio and the
proceedings were therefore terminated. By no stretch of the imagination can the four-day period from
the time the impeachment proceeding was suspended to the day petitioner resigned, constitute an
unreasonable period of delay violative of the right of the accused to speedy trial.

Nor can the claim of double jeopardy be grounded on the dismissal or termination of the case without
the express consent of the accused. We reiterate that the impeachment proceeding was closed only
after the petitioner had resigned from the presidency, thereby rendering the impeachment
court functus officio. By resigning from the presidency, petitioner more than consented to the
termination of the impeachmment case against him, for he brought about the termination of the
impeachment proceedings. We have consistently ruled that when the dismissal or termination of the
case is made at the instance of the accused, there is no double jeopardy. 48cräläwvirtualibräry

Petitioner stubbornly clings to the contention that he is entitled to absolute immunity from suit. His
arguments are merely recycled and we need not prolong the longevity of the debate on the subject. In
our Decision, we exhaustively traced the origin of executive immunity in our jurisdiction and its bends
and turns up to the present time. We held that given the intent of the 1987 Constitution to breathe life
to the policy that a public office is a public trust, the petitioner, as a non-sitting President, cannot claim
executive immunity for his alleged criminal acts committed while a sitting President. Petitioners
rehashed arguments including their thinly disguised new spins are based on the rejected contention that
he is still President, albeit, a President on leave. His stance that his immunity covers his entire term of
office or until June 30, 2004 disregards the reality that he has relinquished the presidency and there is
now a new de jure President.

101
Petitioner goes a step further and avers that even a non-sitting President enjoys immunity from suit
during his term of office. He buttresses his position with the deliberations of the Constitutional
Commission, viz:

Mr. Suarez. Thank you.

The last question is with reference to the Committees omitting in the draft proposal the immunity
provision for the President. I agree with Commissioner Nolledo that the Committee did very well in
striking out this second sentence, at the very least, of the original provision on immunity from suit under
the 1973 Constitution. But would the Committee members not agree to a restoration of at least the first
sentence that the President shall be immune from suit during his tenure, considering that if we do not
provide him that kind of an immunity, he might be spending all his time facing litigations, as the
President-in-exile in Hawaii is now facing litigations almost daily?

Fr. Bernas: The reason for the omission is that we consider it understood in present jurisprudence
that during his tenure he is immune from suit.

Mr. Suarez: So there is no need to express it here.

Fr. Bernas: There is no need. It was that way before. The only innovation made by the 1973
Constitution was to make that explicit and to add other things.

Mr. Suarez; On the understanding, I will not press for any more query, madam President.

I thank the Commissioner for the clarification.49cräläwvirtualibräry

Petitioner, however, fails to distinguish between term and tenure. The term means the time during
which the officer may claim to hold the office as of right, and fixes the interval after which the several
incumbents shall succeed one another. The tenure represents the term during which the incumbent
actually holds office. The tenure may be shorter than the term for reasons within or beyond the power
of the incumbent. 50 From the deliberations, the intent of the framers is clear that the immunity of the
president from suit is concurrent only with his tenure and not his term.

Indeed, petitioners stubborn stance cannot but bolster the belief that the cases at bar were filed not
really for petitioner to reclaim the presidency but just to take advantage of the immunity attached to
the presidency and thus, derail the investigation of the criminal cases pending against him in the Office
of the Ombudsman.

Prejudicial Publicity on the Ombudsman

Petitioner hangs tough on his submission that his due process rights to a fair trial have been prejudiced
by pre-trial publicity. In our Decision, we held that there is not enough evidence to sustain petitioners
claim of prejudicial publicity. Unconvinced, petitioner alleges that the vivid narration of events in our
Decision itself proves the pervasiveness of the prejudicial publicity. He then posits the thesis that
doubtless, the national fixation with the probable guilt of petitioner fueled by the hate campaign
launched by some high circulation newspaper and by the bully pulpit of priests and bishops left indelible
impression on all sectors of the citizenry and all regions, so harsh and so pervasive that the prosecution
and the judiciary can no longer assure petitioner a sporting chance. 51 To be sure, petitioner engages
in exageration when he alleges that all sectors of the citizenry and all regions have been irrevocably
influenced by this barrage of prejudicial publicity. This exaggeration collides with petitioners claim that
he still enjoys the support of the majority of our people, especially the masses.

Petitioner pleads that we apply the doctrine of res ipsa loquitur (the thing or the transaction speaks for
itself) to support his argument. Under the res ipsa loquitur rule in its broad sense, the fact of the
occurrence of an injury, taken with the surrounding circumstances, may permit an inference or raise a
presumption of negligence, or make out a plaintiffs prima facie case, and present a question of fact for

102
defendant to meet with an explanation. 52 It is not a rule of substantive law but more a procedural rule.
Its mere invocation does not exempt the plaintiff with the requirement of proof to prove negligence. It
merely allows the plaintiff to present along with the proof of the accident, enough of the attending
circumstances to invoke the doctrine, creating an inference or presumption of negligence and to
thereby place on the defendant the burden of going forward with the proof. 53cräläwvirtualibräry

We hold that it is inappropriate to apply the rule on res ipsa loquitur, a rule usually applied only in tort
cases, to the cases at bar. Indeed, there is no court in the whole world that has applied the res ipsa
loquitur rule to resolve the issue of prejudicial publicity. We again stress that the issue before us is
whether the alleged pervasive publicity of the cases against the petitioner has prejudiced the minds of
the members of the panel of investigators. We reiterate the test we laid down in People v.
Teehankee, 54 to resolve this issue, viz:

We cannot sustain appellants claim that he was denied the right to impartial trial due to prejudicial
publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like
all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair
trial is not incompatible to a free press. To be sure, responsible reporting enhances an accuseds right to
a fair trial for, as well pointed out , a responsible press has always been regarded as the handmaiden of
effective judicial administration, especially in the criminal field x x x. The press does not simply publish
information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the
trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the
publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible
to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational
criminal cases. The state of the art of our communication system brings news as hey happen straight to
our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts
and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of
touch with the world. We have not installed the jury system whose members are overly protected from
publicity lest they lost their impartiality. x x x . Our judges are learned in the law and trained to disregard
off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to
publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the
barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v.
Alejandro, et al., we rejected this standard of possibility of prejudice and adopted the test of actual
prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and
proof that the judges have been unduly influenced, not simply that they might be, by the barrage of
publicity. In the case at bar, the records do not show that the trial judge developed actual bias against
appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case.
The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a
result of prejudicial publicity which is incapable of change even by evidence presented during the trial.
Appellant has the burden to prove this actual bias and he has not discharged the burden.

Petitioner keeps on pounding on the adverse publicity against him but fails to prove how the
impartiality of the panel of investigators from the Office of the Ombudsman has been infected by
it. As we held before and we hold it again, petitioner has completely failed to adduce any proof
of actual prejudice developed by the members of the Panel of Investigators. This fact must be
established by clear and convincing evidence and cannot be left to loose surmises and conjectures. In
fact, petitioner did not even identify the members of the Panel of Investigators. We cannot replace this
test of actual prejudice with the rule of res ipsa loquitur as suggested by the petitioner. The latter rule
assumes that an injury (i.e., prejudicial publicity) has been suffered and then shifts the burden to the
panel of investigators to prove that the impartiality of its members has been affected by said publicity.
Such a rule will overturn our case law that pervasive publicity is not per se prejudicial to the right of an
accused to fair trial. The cases are not wanting where an accused has been acquitted despite pervasive
publicity. 55 For this reason, we continue to hold that it is not enough for petitioner to conjure

103
possibility of prejudice but must prove actual prejudice on the part of his investigators for the Court to
sustain his plea. It is plain that petitioner has failed to do so.

Petitioner agains suggests that the Court should order a 2-month cooling off period to allow passions to
subside and hopefully the alleged prejudicial publicity against him would die down. We regret not to
acquiesce to the proposal. There is no assurance that the so called 2-month cooling off period will
achieve its purpose. The investigation of the petitioner is a natural media event. It is the first time in our
history that a President will be investigated by the Office of the Ombudsman for alleged commission of
heinous crimes while a sitting President. His investigation will even be monitored by the foreign press all
over the world in view of its legal and historic significance. In other words, petitioner cannot avoid the
kleiglight of publicity. But what is important for the petitioner is that his constitutional rights are not
violated in the process of investigation. For this reason, we have warned the respondent Ombudsman
in our Decision to conduct petitioners preliminary investigation in a circus-free atmosphere. Petitioner is
represented by brilliant legal minds who can protect his right as an accused.

VI

Recusation

Finally, petitioner prays that the members of this Honorable Court who went to EDSA put on record who
they were and consider recusing or inhibiting themselves, particularly those who had ex-parte contacts
with those exerting pressure on this Honorable Court, as mentioned in our Motion of March 9, 2001,
given the need for the cold neutrality of impartial judges. 56cräläwvirtualibräry

We hold that the prayer lacks merit. There is no ground to inhibit the twelve (12) members of the Court
who merely accepted the invitation of the respondent Arroyo to attend her oath taking. As mere
spectators of a historic event, said members of the Court did not prejudge the legal basis of the claim of
respondent Arroyo to the presidency at the time she took her oath. Indeed, the Court in its en banc
resolution on January 22, 2001, the first working day after respondent Arroyo took her oath as President,
held in Administrative Matter No. 01-1-05 SC, to wit:

A.M. No. 01-1-05-SC In re: Request for Vice President Gloria Macapagal-Arroyo to Take Her Oath of
Office as President of the Republic of the Philippines before the Chief Justice Acting on the urgent
request of Vice President Gloria Macapagal-Arroyo to be sworn in as President of the Republic of the
Philippines, addressed to the Chief Justice and confirmed by a letter to the Court, dated January 20,
2001, which request was treated as an administrative matter, the court Resolved unanimously to
confirm the authority given by the twelve (12) members of the Court then present to the Chief Justice
on January 20, 2001 to administer the oath of office to Vice President Gloria Macapagal-Arroyo as
President of the Philippines, at noon of January 20, 2001.

This resolution is without prejudice to the disposition of any justiciable case that may be filed by a
proper party.

The above resolution was unanimously passed by the 15 members of the Court. It should be clear from
the resolution that the Court did not treat the letter of respondent Arroyo to be administered the oath
by Chief Justice Davide, Jr., as a case but as an administrativematter. If it were considered as a case,
then petitioner has reason to fear that the Court has predetermined the legitimacy of the claim of
respondent Arroyo to the presidency. To dispel the erroneous notion, the Court precisely treated the
letter as an administrative matter and emphasized that it was without prejudice to the disposition of
any justiciable case that may be filed by a proper party. In further clarification, the Court on February
20, 2001 issued another resolution to inform the parties and the public that it xxx did not issue a
resolution on January 20, 2001 declaring the office of the President vacant and that neither did the Chief
Justice issue a press statement justifying the alleged resolution. Thus, there is no reason for petitioner
to request for the said twelve (12) justices to recuse themselves. To be sure, a motion to inhibit filed
by a party after losing his case is suspect and is regarded with general disfavor.

Moreover, to disqualify any of the members of the Court, particularly a majority of them, is nothing
short of pro tanto depriving the Court itself of its jurisdiction as established by the fundamental law.

104
Disqualification of a judge is a deprivation of his judicial power. And if that judge is the one designated
by the Constitution to exercise the jurisdiction of his court, as is the case with the Justices of this Court,
the deprivation of his or their judicial power is equivalent to the deprivation of the judicial power of the
court itself. It affects the very heart of judicial independence. 57 The proposed mass disqualification, if
sanctioned and ordered, would leave the Court no alternative but to abandon a duty which it cannot
lawfully discharge if shorn of the participation of its entire membership of Justices. 58cräläwvirtualibräry

IN VIEW WHEREOF, petitioners Motion for Reconsideration in G.R. Nos. 146710-15 and his Omnibus
Motion in G.R. No. 146738 are DENIED for lack of merit.

SO ORDERED.

Bellosillo, Melo, Quisumbing, Pardo, Buena, Gonzaga-Reyes, and De Leon, Jr., JJ., concur.

Davide, Jr., C.J., no part for reason given in open court and in the extended explanation.

Vitug, J., see separate concurring opinion.

Mendoza, J., see concurring opinion.

Kapunan, J., concurs on the result but strongly reiterate my separate opinion in the case.

Ynares-Santiago, J., concurs in the result but maintains separate opinion in the main Decision.

Sandoval-Gutierrez, J., concurs in the result subject to separate opinion in the main Decision.

Panganiban, J., no part see Extended Explanation of Inhibition prom. on March 8, 2001.

[G.R. No. 113795. March 28, 1995.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JESUS ESPINOSA, JR. and RODNEY

ESPINOSA, Accused. JESUS ESPINOSA, JR., Accused-Appellant.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; BOLSTERED BY ABSENCE OF ILL MOTIVE ON THE PART OF
PROSECUTION WITNESS TO FALSELY CHARGE ACCUSED. — In the absence of any ill motive on the part of
Juan Elon to point to accused-appellant as the perpetrator of the crime charged, Juan Elon’s testimony
must be given full faith and credit (People v. Tolentino, 218 SCRA 337 [1993]). A thorough search of the
record fails to uncover any such ill motive. Neither does his relationship to the victim impair his
credibility (People v. Dominguez, 217 SCRA 170 [1993]).

2. ID.; ID.; ID.; NOT AFFECTED BY MINOR INCONSISTENCIES. — Further, Accused-appellant impugns the
testimony of prosecution witness Romualdo Robles. Accused-appellant asserts that the testimony of
Robles to the effect that Juan Elon and his wife went out of the house together is inconsistent with the
testimony of Juan Elon that his wife went out of their house first then followed by him. The question of
who got out of their respective houses first is obviously a minor, trivial, and inconsequential matter that
cannot adversely affect the testimony of Robles that he saw accused-appellant shoot the victim.

3. ID.; ID.; ID.; NOT ADVERSELY AFFECTED BY FAILURE TO IMMEDIATELY REPORT THE INCIDENT TO THE
POLICE AUTHORITIES. — Accused-appellant also assails Robles for his failure to immediately report what
he saw to the policeman who arrived at the scene of the crime. Such failure does not subvert the
credibility of Robles, for as explained by him he immediately went home after the shooting because he
was afraid that he might get involved. The natural reluctance of witnesses to volunteer information to
the police authorities in criminal cases is a matter of judicial notice. He might have deemed it the better
part of valor not to give the name of the accused who was still at large and who probably recognized

105
him. Such reluctance should not affect his testimony. The decisive factor is that he in fact identified the
accused. (People v. Viente, 225 SCRA 361, 370)

4. ID.; ID.; ID.; ALIBI; UNAVAILING WHERE ACCUSED WAS POSITIVELY IDENTIFIED. — We reject the
defense of alibi put up by accused-appellant not only because alibi cannot prevail over the positive
identification by the prosecution witnesses (People v. Dominguez, 217 SCRA 170 [1993], but also
because accused-appellant has failed to establish that it was physically impossible for him to have been
present at the place where the crime was committed at the time it happened. (People v. Flores, 217
SCRA 613 [1993]). In the case at bench, Accused-appellant professes that he was in a fishpond situated
at Brgy. Taguangin, Ajuy, Iloilo at the time of the commission of the crime. However, said place is only 80
kilometers away from Iloilo City, and can be negotiated by bus in about 1-1/2 to 2 hours. Therefore, the
element of physical impossibility of presence of accused-appellant at the scene and the time of the
crime does not obtain.

5. CRIMINAL LAW; MITIGATING CIRCUMSTANCE; VOLUNTARY SURRENDER; REPORT ON WARRANT OF

ARREST NEED NOT BE OFFERED IN EVIDENCE; COURT MAY TAKE COGNIZANCE OF IT WHERE ACCUSED
SURRENDERED VOLUNTARILY. — We agree with accused-appellant that the mitigating circumstance of
voluntary surrender should be taken into consideration in fixing the penalty. The trial court itself stated
that the record shows the fact of voluntary surrender but refrained from taking it into consideration
because, according to the trial court, the report or the warrant of arrest was not offered in evidence.
There was no need for said report to be submitted in evidence because the court can take cognizance of
it, the same being part of the record.

6. ID.; QUALIFYING CIRCUMSTANCE; TREACHERY; MANIFEST WHERE VICTIM WAS SHOT WHILE
URINATING. — We concur with the findings of the trial court that the killing of the victim was
characterized by treachery: In this case, it was clearly shown beyond reasonable doubt that the back of
the deceased was turned to the accused, when he was shot three times. He was urinating when shot
and was defenseless. He was unaware what happened to him. He could not have put up any defense at
all. In short, the accused in executing the crime, employed means, methods or forms which tend directly
and specially to ensure its execution, without risks to himself arising from the defense which the
offended party might make. There was no way the deceased could defend himself under the
circumstances. Indeed, there was treachery.

7. ID.; MURDER; PENALTY IN THE PRESENCE OF ONE MITIGATING CIRCUMSTANCE. — In view of the
presence of the qualifying circumstance of treachery, the crime committed by accused-appellant is
murder under Article 248 of the Revised Penal Code. There being a mitigating circumstance, the penalty
for murder prescribed by said Article 248, which is reclusion temporal in its maximum period to death,
should be imposed in its minimum period, or 17 years, 4 months, and 1 day, to 20 years. Applying the
Indeterminate Sentence Law, the proper penalty is that next lower in degree, which is prision mayor in
its maximum period to reclusion temporal in its medium period, or 10 years and 1 day of prision mayor,
to 17 years and 4 months of reclusion temporal. (People v. Roel Ponayo y Villanueva, G.R. No. 111523,
August 10, 1994). WHEREFORE, the decision appealed from is HEREBY AFFIRMED, with the modification
that accused-appellant IS HEREBY SENTENCED to an indeterminate sentence of ten (10) years and one
(1) day of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal,
as maximum.

DECISION

MELO, J.:

Accused were charged with murder in an Information reading as follows:chanrob1es virtual 1aw library

That on or about the 13th day of February 1993, in the City of Iloilo, Philippines and within the
jurisdiction of this Court, said accused Jesus Espinosa alias Jingjing Espinosa, armed with a handgun of
unknown caliber, conspiring and confederating with Rodney Espinosa, working together and helping one

106
another, with evident premeditation, by means of treachery and with a decided purpose to kill did then
and there wilfully, unlawfully and criminally shot, hit and wound Agusto Elon with the said handgun,
with which the herein accused was provided at the time, thereby causing upon said Agusto Elon bullet
wound on his head, which cause his death few moments thereafter.chanrobles virtual lawlibrary

(p. 8, Rollo.)

After trial, the court a quo rendered a decision dated November 19, 1993 disposing:chanrob1es virtual
1aw library

WHEREFORE, premises considered, the accused Jesus Espinosa, Jr., alias Jing-Jing Espinosa, is hereby
found guilty beyond reasonable doubt as principal, in the crime of murder, defined and penalized under
Art. 248 of the Revised Penal Code and there being no mitigating or aggravating circumstance, is hereby
sentenced to suffer the penalty of reclusion perpetua.

The accused, Rodney Espinosa, alias Rodney Secuilan, is acquitted on the ground that the prosecution
failed to prove his guilt beyond reasonable doubt.

The accused Jesus Espinosa, Jr. is further ordered to pay as civil liability to the heirs of the deceased, the
amount of P4,450.00, as actual damages; P50,000.00 for his wrongful death and P20,000.00 as moral
damages; and the costs of this suit.

Said accused Jesus Espinosa, Jr. who is detained, is accredited with the number of days he spent under
detention, if he is qualified, otherwise he shall be credited with only four-fifth (4/5) of his preventive
imprisonment.

The other accused, Rodney Espinosa, alias Rodney Secuilan, who is also detained, is hereby ordered
released immediately.

(pp. 87-88, Rollo.)

From said decision accused Jesus Espinosa, Jr. appealed, insisting on his alibi.

The facts of the case, as summarized by the trial court and as borne out by the evidence, are as
follows:chanrob1es virtual 1aw library

At about 11:40 in the evening of February 13, 1993, while the deceased Agusto Elon, a deaf mute, was
urinating near the gate of the fence of the house of his sister, Cynthia Villanueva, at Zamora Extension
Street, Iloilo City, the accused Jesus Espinosa, Jr. alias Jing-Jing Espinosa, shot said Agusto Elon at the
back of his head three times, which caused his death. Rodney Espinosa, alias Rodney Secuilan, was
standing about four feet away from Jesus Espinosa, Jr., when the latter shot Agusto Elon.

The shooting of Agusto Elon was witnessed by his father Juan Elon because at that time, he was sleeping
in the house of his daughter Cynthia, which house is situated along the road, or along Zamora Extension
Street. He was requested by his daughter to sleep at her house, which is only fifteen (15) meters away
from his own house, as Cynthia’s husband was at Lemery, Iloilo, at that time, and she and her children
had no companion in their house.

As earlier stated, the house of Cynthia Elon Villanueva is located along or about one (1) foot from
Zamora Extension Street. The fence of her house which is made of hollow blocks is at the same time the
wall of the front of her house.

The place where his son was shot was well lighted and there was an electric light at the post near the
place of the incident. When Jesus Espinosa, Jr. shot Agusto Elon he was about three feet away, more or
less, from the deceased. The deceased was facing the wall when he was shot and his back was turned
towards the accused, Jesus Espinosa, Jr.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Juan Elon cried aloud when he saw his son being shot and ran downstairs, towards him, but he stumbled

107
at the mosquito net of his grandchildren. His wife who was sleeping at their house, which is very near
the house of his daughter arrived first at the scene of the incident. When he reached his son, Juan Elon
embraced him. He saw that the bullets were "bulging" on his forehead and blood was oozing from his
neck. He was already dead. He recognized the accused because he worked as a "stevedore" at the pier,
and had also worked with the grandfather of the accused and had known the accused since they were
small.

At the time of his death, Augusto Elon was only 21 years old. Although a deaf mute, his son was
employed at "Basic Fruit Corporation" situated at Pavia, Iloilo. His job was "peeling banana", to be made
into "banana chips" but he does not know how much his son was earning.

His son usually went home at about 10 to 11 o’clock in the evening, because before going home he used
to pass at the back of the church at Jaro, Iloilo, to visit his friends, who were also deaf mutes.

After his son died, the cadaver was embalmed and an autopsy was conducted. He paid funeraria Porras
the amount of Three Thousand Six Hundred (P3,600.00) Pesos, for funeral services. He also hired 6
jeepneys during the funeral at Fifty (50.00) Pesos. He bought "Zest-O" Juice during the funeral, for the
merienda of the deceased’s friends, he spent the amount of One Thousand Four Hundred (P1,400.00)
Pesos. He also bought bread and sandwich spread and spent One Thousand (P1,000.00) Pesos. For the
"pantheon" of his son he spent Six Hundred (P600.00) Pesos. For church services, Two Hundred
(P200.00) Pesos, or a total amount of Four Thousand Four Hundred Fifty (P4,450.00) Pesos.

The testimony of Juan Elon, the father of the deceased was corroborated by another eyewitness
Romualdo Robles.

He testified that while he was on his way home to Zamora Extension Street, at around 11:40 in the
evening of February 13, 1993, coming from Rotary park and while he was across the street in front of
the house of Juan Elon, he saw Jesus Espinosa, Jr. shoot Agusto Elon or "Apa Elon", in front of their
house at Zamora Extension, Iloilo City. He was about fifteen to twenty meters away front the place of
the incident and the place was well lighted.

At the time of the shooting, Agusto Elon was urinating and the deceased was about three to four feet
away from the assailant. He saw Jesus Espinosa, Jr. shoot "Apa" Elon three times and the deceased fell
on his face on the fence (nagdamhag sa kudal) and he fell on the ground on his back.

(pp. 70-73, Rollo)

Accused-appellant maintains that the prosecution failed in its task to identify him positively as the
perpetrator of the crime. The evidence does not support accused-appellant’s contention. Two
eyewitness to the shooting positively identified accused-appellant as the person who shot the victim.
Prosecution witness Romualdo Robles positively and unequivocably identified accused-appellant as the
perpetrator of the crime. Robles testified thusly:chanrob1es virtual 1aw library

ATTY. CASTRO:chanrob1es virtual 1aw library

While you were on your way home that evening of February 13, 1993, at around 11:40 in the evening,
can you recall whether there was any untoward incident that happened?

WITNESS:chanrob1es virtual 1aw library

Yes, I witnessed the shooting incident done by Jingjing Espinosa to Apa Elon.

ATTY. CASTRO:chanrob1es virtual 1aw library

Who is this Apa Elon?

WITNESS:chanrob1es virtual 1aw library

108
The son of Tyo Juan Elon?

ATTY. CASTRO:chanrob1es virtual 1aw library

What is his name if you know?

WITNESS:chanrob1es virtual 1aw library

Agosto Elon.

ATTY. CASTRO:chanrob1es virtual 1aw library

You said you witnessed the shooting of Apa Elon, in what particular place was Apa Elon shot?

WITNESS:chanrob1es virtual 1aw library

In front of their house?

ATTY. CASTRO:chanrob1es virtual 1aw library

In what street?

WITNESS:chanrob1es virtual 1aw library

Zamora Extension.

ATTY. CASTRO:chanrob1es virtual 1aw library

Iloilo City?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

ATTY. CASTRO:chanrob1es virtual 1aw library

You said you saw the shooting of Apa Elon, how far were you from the place where the shooting took
place?

WITNESS:chanrob1es virtual 1aw library

My distance from the victim is about from 15 to 20 meters.

ATTY. CASTRO:chanrob1es virtual 1aw library

From where you were situated, where is the shooting incident, can you tell whether the place of the
incident is lighted or not?

WITNESS:chanrob1es virtual 1aw library

In the house of Tyo Juan there was a light and the place of the incident is so well lighted.

ATTY. CASTRO:chanrob1es virtual 1aw library

Who is this Tyo Juan you are referring to?

WITNESS:chanrob1es virtual 1aw library

109
The father of Apa Elon.

ATTY. CASTRO:chanrob1es virtual 1aw library

You said you saw the actual shooting of Apa Elon, what was the victim doing when he was shot?

WITNESS:chanrob1es virtual 1aw library

He was urinating and his back turned down the assailant.

ATTY. CASTRO:chanrob1es virtual 1aw library

How far was the assailant from the victim when the victim was shot?

WITNESS:chanrob1es virtual 1aw library

Three to four feet from the back.

ATTY. CASTRO:chanrob1es virtual 1aw library

You said Apa Elon was shot by Jing-Jing Espinosa do you know the complete name of Jing-Jing Espinosa?

WITNESS:chanrob1es virtual 1aw library

Jesus Espinosa.

ATTY. CASTRO:chanrob1es virtual 1aw library

If this person whom you and who shot Apa Elon is inside the courtroom, can you point to him?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

ATTY. CASTRO:chanrob1es virtual 1aw library

Please point to him.

WITNESS:chanrob1es virtual 1aw library

There (witness is pointing to one in the audience whom when asked answered by the name of Jesus
Espinosa.)

(pp. 7-13, tsn, July 23, 1993)

The testimony of Romualdo Robles was fully corroborated by Juan Elon, the father of the victim, who
testified as follows:chanrob1es virtual 1aw library

PROSECUTOR:chanrob1es virtual 1aw library

At about that time 11:40 you said you witnessed the shooting of your son, where was your son situated
insofar as you are concerned in relation to you?

WITNESS:chanrob1es virtual 1aw library

Beside the gate because he was urinating.

PROSECUTOR:chanrob1es virtual 1aw library

110
While your son was urinating were you also witnessing the same?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

PROSECUTOR:chanrob1es virtual 1aw library

What happened then when your son was urinating?

WITNESS:chanrob1es virtual 1aw library

Jesus alias Jingjing and Rodney Espinosa passed by and without any provocation they shot my son three
times.

PROSECUTOR:chanrob1es virtual 1aw library

Why did you say that without any provocation they shot your son three times?

WITNESS:chanrob1es virtual 1aw library

I do not know, because my son was urinating and my son is a deafmute.

PROSECUTOR:chanrob1es virtual 1aw library

Did you see where your son was shot?

WITNESS:chanrob1es virtual 1aw library

At the ‘tangkugo’.

PROSECUTOR:chanrob1es virtual 1aw library

How many times he was shot?

WITNESS:chanrob1es virtual 1aw library

Three times.

PROSECUTOR:chanrob1es virtual 1aw library

Who shot him?

WITNESS:chanrob1es virtual 1aw library

Jesus Espinosa, Jr. alias Jingjing.

PROSECUTOR:chanrob1es virtual 1aw library

Did you see him holding a gun?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

PROSECUTOR:chanrob1es virtual 1aw library

111
Did you see his face clearly when he shot your son?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

PROSECUTOR:chanrob1es virtual 1aw library

Why do you say you saw his face clearly?

WITNESS:chanrob1es virtual 1aw library

Because the street was well-lighted and there is a post-lamp and the light at the houses were lighting.

(pp. 12-15, ibid).

Accused-appellant questions the veracity of the testimony of Juan Elon, maintaining that Juan Elon was
asleep at the time that the victim was shot. Again the evidence does not substantiate accused-
appellant’s contention. Juan Elon unequivocably testified that he was fully awake when the shooting
took place.

ATTY. MACAHILIG:chanrob1es virtual 1aw library

What time did you wake up after having gone to sleep?

WITNESS:chanrob1es virtual 1aw library

I am already old and my sleep is not so heavy and it is so light that I can hear the noise and I hear the
trisykad that stopped and I saw my son alighted from that trisykad.

(p. 29, tsn., July 7, 1993)

In the absence of any ill motive on the part of Juan Elon to point to accused-appellant as the perpetrator
of the crime charged, Juan Elon’s testimony must be given full faith and credit (People v. Tolentino, 218
SCRA 337 [1993]). A thorough search of the record fails to uncover any such ill motive. Neither does his
relationship to the victim impair his credibility (People v. Dominguez, 217 SCRA 170 [1993]).

Further, Accused-appellant impugns the testimony of prosecution witness Romualdo Robles. Accused-
appellant asserts that the testimony of Robles to the effect that Juan Elon and his wife went out of the
house together is inconsistent with the testimony of Juan Elon that his wife went out of their house first
then followed by him. The question of who got out of their respective houses first is obviously a minor,
trivial, and inconsequential matter that cannot adversely affect the testimony of Robles that he saw
accused-appellant shoot the victim.

Accused-appellant also assails Robles for his failure to immediately report what he saw to the policeman
who arrived at the scene of the crime. Such failure does not subvert the credibility of Robles, for as
explained by him he immediately went home after the shooting because he was afraid that he might get
involved (p. 7, tsn., July 23, 1993).chanrobles law library : red

The reticence of Cabatas to immediately reveal the said statement to the police officers was
satisfactorily explained; he was then afraid. The natural reluctance of witnesses to volunteer
information to the police authorities in criminal cases is a matter of judicial notice. He might have
deemed it the better part of valor not to give the name of the accused who was still at large and who
probably recognized him. Such reluctance should not affect his testimony. The decisive factor is that he
in fact identified the accused.

(People v. Viente, 225 SCRA 361, 370.)

112
In an attempt to destroy the credibility of Robles, Accused-appellant presented a certification of Kilayko
Express Services, Inc. to the effect that Robles had never been an employee thereat, this to rebut the
statement of Robles that he was an errand boy of Kilayko Express, Inc. In this regard, we fully agree with
the following observation of the trial court:chanrob1es virtual 1aw library

The defense would like to assail the credibility of Romualdo Robles, the second witness of the
prosecution by presenting a certification issued by the president or general manager of Kilayko Express,
Inc., Victor Kilayko, that Mr. Romualdo Robles has not been an employee of Kilayko Express, Inc. in
whatever capacity since 1990 up to 1993. But Romualdo Robles never asserted that he was an employee
of Kilayko Express, Inc. He merely testified that he was a mere "errand boy" or "messenger" but not a,
regular employee. He received no regular salary and he accepted whatever amount that might be given
to him as an errand boy. As a matter of fact, in his personal circumstances, he stated that he was jobless.

(pp. 25-26, Rollo.)

We reject the defense of alibi put up by accused-appellant not only because alibi cannot prevail over the
positive identification by the prosecution witnesses (People v. Dominguez, 217 SCRA 170 [1993], but
also because accused-appellant has failed to establish that it was physically impossible for him to have
been present at the place where the crime was committed at the time it happened (People v. Flores,
217 SCRA 613 [1993]). In the case at bench, Accused-appellant professes that he was in a fishpond
situated at Brgy. Taguangin, Ajuy, Iloilo at the time of the commission of the crime. However, said place
is only 80 kilometers away from Iloilo City, and can be negotiated by bus in about 1-1/2 to 2 hours.
Therefore, the element of physical impossibility of presence of accused-appellant at the scene and the
time of the crime does not obtain.

We, however, agree with accused-appellant that the mitigating circumstance of voluntary surrender
should be taken into consideration in fixing the penalty. The trial court itself stated that the record
shows the fact of voluntary surrender but refrained from taking it into consideration because, according
to the trial court, the report or the warrant of arrest was not offered in evidence. There was no need for
said report to be submitted in evidence because the court can take cognizance of it, the same being part
of the record.

It is a settled rule that a tribunal may at any time take judicial notice of the records of a case pending
before it.chanrobles law library : red

(Universal Textile Mills, Inc. v. Court of Industrial Relations; 36 SCRA 619, 623 [1970])

We nonetheless concur with the following findings of the trial court that the killing of the victim was
characterized by treachery:chanrob1es virtual 1aw library

In this case, it was clearly shown beyond reasonable doubt that the back of the deceased was turned to
the accused, when he was shot three times. He was urinating when shot and was defenseless. He was
unaware what happened to him. He could not have put up any defense at all. In short, the accused in
executing the crime, employed means, methods or forms which tend directly and specially to ensure its
execution, without risks to himself arising from the defense which the offended party might make.
There was no way the deceased could defend himself under the circumstances. Indeed, there was
treachery.

(p. 84, Rollo.)

In view of the presence of the qualifying circumstance of treachery, the crime committed by accused-
appellant is murder under Article 248 of the Revised Penal Code. There being a mitigating circumstance,
the penalty for murder prescribed by said Article 248, which is reclusion temporal in its maximum period
to death, should be imposed in its minimum period, or 17 years, 4 months, and 1 day, to 20 years.
Applying the Indeterminate Sentence Law, the proper penalty is that next lower in degree, which is
prision mayor in its maximum period to reclusion temporal in its medium period, or 10 years and 1 day
of prision mayor, to 17 years and 4 months of reclusion temporal. (People v. Roel Ponayo y Villanueva,
G.R. No. 111523, August 10, 1994).

113
WHEREFORE, the decision appealed from is HEREBY AFFIRMED, with the modification that accused-
appellant IS HEREBY SENTENCED to an indeterminate sentence of ten (10) years and one (1) day of
prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal as
maximum.

In all other respects, the decision appealed from is hereby affirmed.

No special pronouncement is made as to costs.chanrobles virtual lawlibrary

SO ORDERED.

Feliciano, Romero, Vitug and Francisco, JJ., concur.

G.R. No. 100901 July 16, 1998

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.

JAILON KULAIS, CARLOS FALCASANTOS @ "Commander Falcasantos," AWALON KAMLON HASSAN @

"Commander Kamlon," MAJID SAMSON @ "Commander Bungi," JUMATIYA AMLANI DE
FALCASANTOS, NORMA SAHIDDAN DE KULAIS, SALVADOR MAMARIL y MENDOZA, HADJIRUL PLASIN y
ALIH, JAINUDDIN HASSAN y AHMAD, IMAM TARUK ALAH y SALIH, JALINA HASSAN DE KAMMING,
FREDDIE MANUEL @ "Ajid" and several JOHN and JANE DOES, accused, JAILON KULAIS, appellant.

PANGANIBAN, J.:

The trial court's erroneous taking of judicial notice of a witness' testimony in another case, also pending
before it, does not affect the conviction of the appellant, whose guilt is proven beyond reasonable
doubt by other clear, convincing and overwhelming evidence, both testimonial and documentary. The
Court takes this occasion also to remind the bench and the bar that reclusion perpetua is not
synonymous with life imprisonment.

The Case

On August 22, 1990, five Informations for kidnapping for ransom (Crim. Case Nos. 10060, 10061, 10062,
10063 and 10064) and three Informations for kidnapping (Crim Case Nos. 10065, 10066 and 10067), all
dated August 14, 1990, were filed 1 before the Regional Trial Court of Zamboanga City against Carlos
Falcasantos, Jailon Kulais, Jumatiya Amlani, Norma Sahiddan de Kulais, Jalina Hassan de
Kamming, 2 Salvador Mamaril, Hadjirul Plasin, Jaimuddin Hassan, Imam 3 Taruk Alah, Freddie Manuel
alias "Ajid," and several John and Jane Does. The Informations for kidnapping for ransom, which set
forth identical allegations save for the names of the victims, read as follows:

That on or about the 12th day of December, 1988, in the City of Zamboanga,
Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, being all private individuals, conspiring and confederating together, mutually
aiding and assisting one another, with threats to kill the person of FELIX ROSARIO [in
Criminal Case No. 10060] 4 and for the purpose of extorting ransom from the said Felix
Rosario or his families or employer, did then and there, wilfully, unlawfully and
feloniously, KIDNAP the person of said Felix Rosario, 5 a male public officer of the City
Government of Zamboanga, who was then aboard a Cimarron vehicle with plate No.
SBZ-976 which was being ambushed by the herein accused at the highway of Sitio
Tigbao Lisomo, Zamboanga City, and brought said Felix Rosario 6 to different
mountainous places of Zamboanga City and Zamboanga del Sur, where he was
detained, held hostage and deprived of his liberty until February 2, 1989, the day

114
 when he was released only after payment of the ransom was made to herein accused,
to the damage and prejudice of said victim; there being present an aggravating
circumstance in that the aforecited offense was committed with the aid of armed men
or persons who insure or afford impunity.

The three Informations for kidnapping, also under Article 267 of the Revised Penal Code, likewise
alleged identical facts and circumstances, except the names of the victims:

That on or about the 12th day of December, 1988, in the City of Zamboanga and
within the jurisdiction of this Honorable Court, the above-named accused, being all
private individuals, conspiring and confederating together, mutually aiding and
assisting one another, by means of threats and intimidation of person, did then and
there, wilfully, unlawfully and feloniously KIDNAP, take and drag away and detain the
person of MONICO SAAVEDRA Y LIMEN [Criminal Case No. 10065] 7 a male public
officer of the City Government of Zamboanga, against his will, there being present an
aggravating circumstance in that the aforecited offense was committed with the aid of
armed men or persons who insure or afford impunity.

Of the twelve accused, only nine were apprehended, namely, Jailon Julais, Jumatiya Amlani, Norma
Sahiddan de Kulais, Salvador Mamaril Hadjirul Plasin, Jainuddin Hassan, Imam Taruk Alah, Jalina
Hassan and Freddie Manuel. 8

On their arraignment on September 13, 1990, all the accused pleaded not guilty. Joint trial on the
merits ensued. On April 8, 1991, Judge Pelagio S. Mandi rendered the assailed 36-page Decision, the
dispositive portion of which reads:

WHEREFORE, above premises and discussion taken into consideration, this Court
renders its judgment, ordering and finding:

1. FREDDIE MANUEL, alias "AJID" and IMAM TARUK ALAH y SALIH [n]ot [g]uilty of the
eight charges of [k]idnapping for [r]ansom and for [k]idnapping, their guilt not having
been proved beyond reasonable doubt.

Their immediate release from the City Jail, Zamboanga City is ordered, unless detained
for some other offense besides these 8 cases (Crim. Cases Nos. 10060-10067).

2. JAINUDDIN HASSAN y AHMAD, JAILON KULAIS, SALVADOR MAMARIL y MENDOZA

and HADJIRUL PLASIN y ALIH [g]uilty as principals by conspiracy in all these 8 cases for
[k]idnapping for [r]ansom and for [k]idnapping (Crim. Cases Nos. 10060-10067).

Their guilt is aggravated in that they committed the 8 offenses with the aid of armed
men who insured impunity. Therefore, the penalties imposed on them shall be at their
maximum period.

WHEREFORE, for the five charges of [k]idnapping for [r]ansom, and pursuant to Art.
267 of the Revised Penal Code, five life imprisonments are imposed on Jainuddin
Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Kadjirul Plasin y Alih
(Crim. Cases Nos. 10060-10064).

For kidnapping Mrs. Virginia San Agustin-Gara, a female and public officer and
pursuant to Art. 267, Revised Penal Code (par. 4.), another life imprisonment is
imposed on Jainuddin Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza
and Hadjirul Plasin y Alih (Crim. Case No. 10066)

For kidnapping Monico Saavedra y Limen, and Calixto Francisco y Gaspar, and their
kidnapping not having lasted more than five days, pursuant to Art. 268, Revised Penal
Code, and the Indeterminate Sentence Law, the same four accused — Jainuddin
Hassan y Ahmad, Jailon Kulais, Salvador Mamaril y Mendoza and Hadjirul Plasin y Alih

115
 — are sentenced to serve two (2) jail terms ranging from ten (10) years of prision
mayor as minimum, to eighteen (18) years of reclusion temporal as maximum (Crim.
Cases Nos. 10065 and 10067).

3. JAMATIYA AMLANI DE FALCASANTOS [n]ot [g]uilty in the three charges of

[k]idnapping and she is acquitted of these charges. (Crim. Cases Nos. 10065, 10066
and 10067).

But Jumatiya Amlani de Falcasantos is [g]uilty as accomplice in the five charges of

[k]idnapping for [r]ansom.

WHEREFORE, Jumatiya Amlani de Falcasantos is sentenced to serve five (5)

imprisonments, ranging from TEN (10) YEARS of prision mayor as minimum to
EIGHTEEN (18) YEARS of reclusion temporal as maximum (Crim. Cases Nos. 10060-1
0064).

4. NORMA SAHIDDAN DE KULAIS, 18 years old, and JALIHA HUSSIN (charged as Jalina
Hassan de Kamming), 15 years old, [n]ot [g]uilty in the three charges for [k]idnapping
and are, therefore, ACQUITTED of these three charges. (Crim. Cases Nos. 10065, 10066
& 10067).

But Norma Sahiddan de Kulais and Jalina Hussin are found [g]uilty as accomplices in
the five charges for [k]idnapping for [r]ansom. Being miners, they are entitled to the
privileged mitigating circumstance of minority which lowers the penalty imposable on
them by one degree.

WHEREFORE, Norma Sahiddan de Kulais and Jalina Hussin are sentenced to serve five
imprisonments ranging from SIX (6) YEARS of prision correccional as minimum to TEN
YEARS AND ONE (1) DAY OF prision mayor as maximum (Crim. Cases Nos. 10060-
10064).

Due to the removal of the suspension of sentences of youthful offenders "convicted of

an offense punishable by death or life" by Presidential Decree No. 1179 and
Presidential Decree No. 1210 (of which [k]idnapping for [r]ansom is such an offense)
the sentences on Norma Sahiddan de Kulais and Jaliha Hussin de Kamming are NOT
suspended but must be served by them.

Januddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin are sentenced
further to return the following personal effects taken on December 12, 1988, the day
of the kidnapping, or their value in money, their liability being solidary.

To Jessica Calunod:

One (1) Seiko wrist watchP P 250.00

One Bracelet P 2,400.00

One Shoulder Bag P 200.00

Cash P 200.00

To Armado C. Bacarro:

One (1) wrist watch P 800.00

One Necklace P 300.00

One Calculator P 295.00

116
Eyeglasses P 500.00

One Steel Tape P 250.00

To Edilberto S. Perez:

One (1) Rayban P 1,000.00

One Wrist WatchP P 1,800.00

Cash P 300.00

To Virginia San Agustin-Gara:

One (1)Wrist Watch P 850.00

The benefit of Art. 29, Revised Penal Code, on preventive suspension, shall be
extended to those sentenced.

The cases against Majid Samson, alias "Commander Bungi" Awalon Kamlon a.k.a.
"Commander Kamlon" Carlos Falcasantos and several "John Does" and Jane "Does"
are ARCHIVED until their arrest.

Costs against the accused convicted.

SO ORDERED. 9

On May 7, 1991, Jailon Kulais, Jumatiya Amlani de Falcasantos, Norma Sahiddan de Kulais and Jaliha
Hussin filed their joint Notice of Appeal. 10 In a letter dated February 6, 1997, the same appellants,
except Jailon Kulais, withdrew their appeal because of their application for "amnesty." In our March
19, 1997 Resolution, we granted their motion. Hence, only the appeal of Kulais remains for the
consideration of this Court. 11

The Facts

The Version of the Prosecution

The solicitor general summarized, in this wise, the facts as viewed by the People:

On December 12, 1988, a group of public officials from various government agencies,
organized themselves as a monitoring team to inspect government projects in
Zamboanga City. The group was composed of Virginia Gara, as the head of the team;
Armando Bacarro, representing the Commission on Audit; Felix del Rosario,
representing the non-government: Edilberto Perez, representing the City Assessor's
Office; Jessica Calunod and Allan Basa of the City Budget Office and Monico Saavedra,
the driver from the City Engineer's Office. (p. 3, TSN, October 22, 1990.)

On that particular day, the group headed to the Lincomo Elementary School to check
on two of its classrooms. After inspecting the same, they proceeded to the Talaga
Footbridge. The group was not able to reach the place because on their way, they
were stopped by nine (9) armed men who pointed their guns at them (p. 4, TSN, ibid.).

The group alighted from their Cimarron jeep where they were divested of their
personal belongings. They were then ordered to walk to the mountain by the leader of
the armed men who introduced himself as Commander Falcasantos (p. 5, TSN, ibid.).

117
 While the group was walking in the mountain, they encountered government troops
which caused their group to be divided. Finally, they were able to regroup themselves.
Commander Kamlon with his men joined the others. (pp. 7-8, TSN, ibid.).

The kidnappers held their captives for fifty-four (54) days in the forest. During their
captivity, the victims were able to recognize their captors who were at all times armed
with guns. The wives of the kidnappers performed the basic chores like cooking. (pp.
9-10. TSN, ibid.)

Commander Falcasantos also ordered their victims to sign the ransom notes which
demanded a ransom of P100,000.00 and P14,000.00 in exchange for twenty (20) sets
of uniform. (p. 15, TSN, ibid.)

On February 3, 1989, at around 12:00 o'clock noontime, the victims were informed
that they would be released. They started walking until around 7:00 o'clock in the
evening of that day. At around 12:00 o'clock midnight, the victims were released after
Commander Falcasantos and Kamlon received the ransom money. (p. 19, TSN, ibid.)
The total amount paid was P122,000.00. The same was reached after several
negotiations between Mayor Vitaliano Agan of Zamboanga City and the
representatives of the kidnappers. (pp. 2, 6, TSN, Nov. 11, 1990)

. . . 12

The prosecution presented fifteen witnesses, including some of the kidnap victims themselves: Jessica
Calunod, Armando Bacarro, Edilberto Perez, Virginia San Agustin-Gara, Calixto Francisco, and Monico
Saavedra.

The Version of the Defense

The facts of the case, according to the defense, are as follows: 13

On May 28, 1990, at about 10:00 o'clock in the morning, while weeding their farm in
Sinaburan, Zamboanga del Sur, accused-appellant Jumatiya Amlani was picked up by
soldiers and brought to a place where one army battalion was stationed. Thereat, her
five (5) co-accused, namely Salvador Mamaril, Hadjirul Plasin, Jainuddin Hassin, Imam
Taruk Alah and Freddie Manuel were already detained. In the afternoon of the same
day, appellants spouses Jailon Kulais and Norma Sahiddan were brought to the
battalion station and likewise detained thereat. On May 30, 1990, the eight (8)
accused were transported to Metrodiscom, Zamboanga City. Here on the same date,
they were joined by accused-appellant Jaliha Hussin.

At the time Amlani was picked up by the military, she had just escaped from the
captivity of Carlos Falcasantos and company who in 1988 kidnapped and brought her
to the mountains. Against their will, she stayed with Falcasantos and his two wives for
two months, during which she slept with Falcasantos as aide of the wives and was
made to cook food, wash clothes, fetch water and run other errands for everybody.
An armed guard was assigned to watch her, so that, for sometime, she had to bear the
ill-treatment of Falcasantos' other wives one of whom was armed. After about two
months, while she was cooking and Falcasantos and his two wives were bathing in the
river, and while her guard was not looking, she took her chance and made a successful
dash for freedom. (TSN, January 29, 1992, pp. 2-15)

Likewise a kidnap victim herself is accused-appellant Jaliha Hussin, who was thirteen
years old at the time (she was fifteen years old when the trial of the instant cases
commenced). She was kidnapped by Daing Kamming and brought to the mountains
where he slept with her. She stayed with him for less than a month sleeping on forest
ground and otherwise performing housekeeping errands for Kamming and his men.
She made good her escape during an encounter between the group of Kamming and

118
 military troops. She hid in the bushes and came out at Ligui-an where she took a
"bachelor" bus in going back to her mother's house at Pudos, Guiligan, Tungawan,
Zamboanga del Sur. One day, at around 2:00 o'clock in the afternoon, while she was
harvesting palay at the neighboring village of Tigbalangao, military men picked her up
to Ticbanuang where there was an army battalion detachment. From Ticbawuang, she
was brought to Vitali, then to Metrodiscom, Zamboanga City, where on her arrival,
she met all the other accused for the first time except Freddie Manuel. (Ibid., pp. 16-
21)

Another female accused is appellant Norma Sahiddan, a native of Sinaburan,

Tungawan, Zamboanga del Sur. At about 3:00 o'clock in the afternoon of a day in May,
while she and her husband were in their farm, soldiers arrested them. The soldiers did
not tell them why they were being arrested, neither were they shown any papers. The
two of them were just made to board a six by six truck. There were no other civilians
in the truck. The truck brought the spouses to the army battalion and placed them
inside the building where there were civilians and soldiers. Among the civilians
present were her six co-accused Hadjirul Plasin, Salvador Mamaril, Jaimuddin Hassan,
Ima[m] Taruk Alah, Freddie Manuel and Jumatiya Amlani. That night, the eight of
them were brought to Tictapul, Zamboanga City; then to Vitali; and, finally, to the
Metrodiscom, Zamboanga City where they stayed for six days and six nights. On the
seventh day, the accused were brought to the City Jail, Zamboanga City. (TSN, January
30, 1991, pp. 6-11)

The husband of Norma Sahiddan is Jailon Kulais who, as heretofore narrated, was
arrested with his wife the day the soldiers came to their farm on May 28, 1990. He has
shared with his wife the ordeals that followed in the wake of their arrest and in the
duration of their confinement up to the present. (TSN, January 22, 1991 pp. 2-4).

The Trial Court's Ruling

The trial court found Appellant Kulais guilty of five counts of kidnapping for ransom and one count of
kidnapping a woman and public officer, for which offenses it imposed upon him six terms of "life
imprisonment." It also found him guilty of two counts of slight illegal detention for the kidnapping of
Monico Saavedra and Calixto Francisco. The trial court ratiocinated as follows:

Principally, the issue here is one of credibility — both of the witnesses and their
version of what had happened on December 12, 1988, to February 3, 1989. On this
pivotal issue, the Court gives credence to [p]rosecution witnesses and their
testimonies. Prosecution evidence is positive, clear and convincing. No taint of evil or
dishonest motive was imputed or imputable to [p]rosecution witnesses. To this Court,
who saw all the witnesses testify, [p]rosecution witnesses testified only because they
were impelled by [a] sense of justice, of duty and of truth.

Contrarily, [d]efense evidence is weak, uncorroborated and consisted only of alibis.

The individual testimonies of the nine accused dwel[t] principally on what happened
to each of them on May 27, 28 and 29, 1990. None of the accused explained where he
or she was on and from December 12, 1988, to February 3, 1989, when [p]rosecution
evidence show[ed] positively seven of the nine accused were keeping the five or six
hostages named by [p]rosecution evidence.

The seven accused positively identified to have been present during the course of the
captivity of the five kidnap-victims-complainants are: (1) Jumatiya Amlani; (2) Jaliha
Hussin; (3) Norma Sahiddan; (4) Jailon Kulais; (5) Hadjirul Plasin; (6) Salvador Mamaril
and (7) Jainuddin Hassan.

The two accused not positively identified are: Freddie Manuel alias "Ajid", and Imam
Taruk Alah. These two must, therefore, be declared acquitted based on reasonable
doubt.

119
 The next important issue to be examined is: Are these seven accused guilty as
conspirators as charged in the eight Informations; or only as accomplices? Prosecution
evidence shows that the kidnapping group to which the seven accused belonged had
formed themselves into an armed band for the purpose of kidnapping for ransom. This
armed band had cut themselves off from established communities, lived in the
mountains and forests, moved from place to place in order to hide their hostages. The
wives of these armed band moved along with their husbands, attending to their needs,
giving them material and moral support. These wives also attended to the needs of
the kidnap victims, sleeping with them or comforting them.

xxx xxx xxx

II The guilt of Jainuddin Hassan, Jailon Kulais, Salvador Mamaril and Hadjirul Plasin.
The Court holds these four men guilty as conspirators in the 8 cases of kidnapping.
Unlike the three women-accused, these male accused were armed. They actively
participated in keeping their hostages by fighting off the military and CAFGUS, in
transferring their hostages from place to place, and in guarding the kidnap hostages.
Salvador Mamaril and Jailon Kulais were positively identified as among the nine
armed men who had kidnapped the eight kidnap victims on December 12, 1988.

The higher degree of participation found by the Court of the four accused is supported
by the rulings of our Supreme Court quoted below.

(1) The time-honored jurisprudence is that direct proof is not essential to prove
conspiracy. It may be shown by a number of infinite acts, conditions and
circumstances which may vary according to the purposes to be accomplished and from
which may logically be inferred that there was a common design, understanding or
agreement among the conspirators to commit the offense charged. (People vs.
Cabrera, 43 Phil 64; People vs. Carbonel, 48 Phil. 868.)

(2) The crime must, therefore, in view of the solidarity of the act and intent which
existed between the sixteen accused, be regarded as the act of the band or party
created by them, and they are all equally responsible for the murder in question. (U.S.
vs. Bundal, et. al. 3 Phil 89, 98.)

(3) When two or more persons unite to accomplish a criminal object, whether through
the physical volition of one, or all, proceeding severally or collectively, each individual
whose evil will actively contribute to the wrongdoing is in law responsible for the
whole, the same as though performed by himself alone. (People vs. Peralta, et. al. 25
SCRA 759, 772 (1968).) 14

The Assigned Errors

The trial court is faulted with the following errors, viz:

The trial court erred in taking judicial notice of a material testimony given in another
case by Lt. Melquiades Feliciano, who allegedly was the team leader of the
government troops which allegedly captured the accused-appellants in an encounter;
thereby, depriving the accused-appellants their right to cross-examine him.

II

On the assumption that Lt. Feliciano's testimony could be validly taken judicial notice
of, the trial court, nevertheless, erred in not disregarding the same for being highly
improbable and contradictory.

120
 III

The trial court erred in finding that accused-appellants Jumatiya Amlani, Jaliha Hussin
and Norma Sahiddan provided Carlos Falcasantos, et. al., with material and moral
comfort, hence, are guilty as accomplices in all the kidnapping for ransom cases.

IV

The trial court erred in denying to accused-appellant Jaliha Hussin and Norma
Sahiddan the benefits of suspension of sentence given to youth offenders considering
that they were minors at the time of the commission of the offense. 15

As earlier noted, Jumatiya Amlani, Jaliha Hussin and Norma Sahiddan had withdrawn their appeal,
and as such, the third and fourth assigned errors, which pertain to them only, will no longer be dealt
with. Only the following issues pertaining to Appellant Jailon Kulais will be discussed: (1) judicial
notice of other pending cases, (2) sufficiency of the prosecution evidence, and (3) denial as a defense.
In addition, the Court will pass upon the propriety of the penalty imposed by the trial court.

The Court's Ruling

The appeal is bereft of merit.

First Issue:

Judicial Notice and Denial of Due Process

Appellant Kulais argues that he was denied due process when the trial court took judicial notice of the
testimony given in another case by one Lt. Melquiades Feliciano, who was the team leader of the
government troops that captured him and his purported cohorts. 16 Because he was allegedly
deprived of his right to cross-examine a material witness in the person of Lieutenant Feliciano, he
contends that the latter's testimony should not be used against him. 17

True, as a general rule, courts should not take judicial notice of the evidence presented in other
proceedings, even if these have been tried or are pending in the same court, or have been heard and
are actually pending before the same judge. 18 This is especially true in criminal cases, where the
accused has the constitutional right to confront and cross-examine the witnesses against him.

Having said that, we note, however, that even if the court a quo did take judicial notice of the
testimony of Lieutenant Feliciano, it did not use such testimony in deciding the cases against the
appellant. Hence, Appellant Kulais was not denied due process. His conviction was based mainly on
the positive identification made by some of the kidnap victims, namely, Jessica Calunod, Armando
Bacarro and Edilberto Perez. These witnesses were subjected to meticulous cross-examinations
conducted by appellant's counsel. At best, then, the trial court's mention of Lieutenant Feliciano's
testimony is a decisional surplusage which neither affected the outcome of the case nor substantially
prejudiced Appellant Kulais.

Second Issue:

Sufficiency of Prosecution Evidence

Appellant was positively identified by Calunod, as shown by the latter's testimony:

CP CAJAYON D MS:

Q And how long were you in the custody of these persons?

A We stayed with them for fifty-four days.

121
 Q And during those days did you come to know any of the persons
who were with the group?

A We came to know almost all of them considering we stayed there

for fifty-four days.

Q And can you please name to us some of them or how you know
them?

A For example, aside from Commander Falcasantos and Commander

Kamlon we came to know first our foster parents, those who were
assigned to give us some food.

Q You mean to say that the captors assigned you some men who will
take care of you?

A Yes.

Q And to whom were you assigned?

A To Ila Abdurasa.

Q And other than your foster [parents] or the parents whom you are
assigned to, who else did you come to know?

A Pagal and his wife; Tangkong and his wife Nana; the two (2) wives of
Commander Falcasantos — Mating and Janira — another brother in-
law of Commander Kamlon, Usman, the wife of Kamlon, Tira.

xxx xxx xxx

Q Now, you said that you were with these men for fifty-four days and
you really came to know them. Will you still be able to recognize these
persons if you will see the[m] again?

A Yes, ma'am.

Q Now will you look around this Honorable Court and see if any of
those you mentioned are here?

A Yes, they are here.

Q Some of them are here?

A Some of them are here.

xxx xxx xxx

Q Where is Tangkong? What is he wearing?

A White t-shirt with orange collar. (witness pointing.) He was one of

those nine armed men who took us from the highway.

RTC INTERPRETER:

Witness pointed to a man sitting in court and when asked of his name,
he gave his name as JAILON KULAIS.

122
 CP CAJAYON D MS:

Q Aside from being with the armed men who stopped the vehicle and
made you alight, what else was he doing while you were in their
captivity?

A He was the foster parent of Armando Bacarro and the husband of

Nana.

COURT:

Q Who?

A Tangkong.

xxx xxx xxx 19

Likewise clear and straightforward was Bacarro's testimony pointing to appellant as one of the
culprits:

FISCAL CAJAYON:

xxx xxx xxx

Q And what happened then?

A Some of the armed men assigned who will be the host or who will
be the one [to] g[i]ve food to us.

Q [To] whom were you assigned?

A I was assigned to a certain Tangkong and [his] wife Nana.

xxx xxx xxx

Q Now, you said you were assigned to Tangkong and his wife. [D]o you
remember how he looks like?

A Yes.

Q Now, will you please look around this Court and tell us if that said
Tangkong and his wife are here?

A Yes, ma'am.

Q Could you please point this Tangkong to us?

A Witness pointed to a person in Court. [W]hen asked his name he

identified [himself] as Jailon Kulais.

Q Why did you say his name is Tangkong? Where did you get that
name?

A Well, that is the name [by which he is] usually called in the camp.

xxx xxx xxx

123
 ATTY. FABIAN (counsel for accused Kulais)

Q When did you first meet Tangkong?

A That was on December 11, because I remember he was the one who
took us.

Q When you were questioned by the fiscal a while ago, you stated that
Mr. Mamaril was one of those who stopped the bus and took you to
the hill and you did not mention Tangkong?

A I did not mention but I can remember his face.

xxx xxx xxx

Q And because Tangkong was always with you as your host even if he
did not tell you that he [was] one of those who stopped you, you
would not recognize him?

A No, I can recognize him because he was the one who took my shoes.

COURT:

Q Who?

A Tangkong, your Honor.

xxx xxx xxx 20

Also straightforward was Ernesto Perez' candid narration:

FISCAL CAJAYON:

xxx xxx xxx

Q Who else?

A The last man.

Q Did you come to know his name?

A Only his nickname, Tangkong. (Witness pointed to a man in Court

who identified himself as Jailon Kulais.)

Q And what was Tangkong doing in the mountain?

A The same, guarding us.

CROSS-EXAMINATION BY ATTY. SAHAK.

Q Engr. Perez, you stated that you were ambushed by nine armed men
on your way from [the] Licomo to [the] Talaga Foot Bridge. [W]hat do
you mean by ambushed?

A I mean that they blocked our way and stopped.

Q They did not fire any shots?

124
 A But they were pointing their guns at us.

Q And among the 9 armed men who held you on your way to [the]
Talaga Footbridge, you stated [that] one of them [was] Commander
Falcasantos?

A Yes.

Q Could you also recognize anyone of the accused in that group?

A Yes.

Q Will you please identify?

A That one, Tangkong. (The witness pointed to a man sitting in court

who identified himself as Jailon Kulais.)

xxx xxx xxx

CROSS-EXAMINATION BY ATTY. FABIAN.

Q You said Jailon Kulais was among those who guarded the camp?

FISCAL CAJAYON:

Your Honor, please, he does not know the name of Julais, he used the
word Tangkong.

ATTY. FABIAN

Q You said Tangkong guarded you[. W]hat do you mean?

A He guarded us like prisoners[. A]fter guarding us they have their

time two hours another will be on duty guarding us.

Q Where did you meet Tangkong?

A He was one of the armed men who kidnapped us.

xxx xxx xxx 21

It is evident from the foregoing testimonies of Calunod, Bacarro and Perez that kidnapping or
detention did take place: the five victims were held, against their will, for fifty-three days from
December 12, 1988 to February 2, 1989. It is also evident that Appellant Kulais was a member of the
group of armed men who staged the kidnapping, and that he was one of those who guarded the
victims during the entire period of their captivity. His participation gives credence to the conclusion of
the trial court that he was a conspirator.

Kidnapping

for Ransom

That the kidnapping of the five was committed for the purpose of extorting ransom is also apparent
from the testimony of Calunod, who was quite emphatic in identifying the accused and narrating the
circumstances surrounding the writing of the ransom letters.

CP CAJAYON D MS:

125
Q Now, you were in their captivity for 54 days and you said there were
these meetings for possible negotiation with the City Government.
What do you mean by this? What were you supposed to negotiate?

A Because they told us that they will be releasing us only after the
terms. 22

Q And what were the terms? Did you come to know the terms?

A I came to know the terms because I was the one ordered by

Commander Falcasantos to write the letter, the ransom letter.

Q At this point of time, you remember how many letters were you
asked to write for your ransom?

A I could not remember as to how many, but I can identify them.

Q Why will you able to identify the same?

A Because I was the one who wrote it.

Q And you are familiar, of course, with your penmanship?

A Yes.

Q Now we have here some letters which were turned over to us by the
Honorable City Mayor Vitaliano Agan. 1,2,3,4,5 — there are five letters
all handwritten.

COURT:

Original?

CP CAJAYON D MS:

Original, your Honor.

Q And we would like you to go over these and say, tell us if any of
these were the ones you were asked to write.

A (Witness going over [letters])

This one — 2 pages. This one — 2 pages. No more.

Q Aside from the fact that you identified your penmanship in these
letters, what else will make you remember that these are really the
ones you wrote while there?

A The signature is there.

Q There is a printed name here[,] Jessica Calunod.

A And over it is a signature.

Q That is your signature?

A Yes, ma'am.

126
 Q How about in the other letter, did you sign it also?

A Yes, there is the other signature.

Q There are names — other names here — Eddie Perez, Allan Basa,
Armando Bacarro, Felix Rosario, Jojie Ortuoste and there are
signatures above the same. Did you come up to know who signed this
one?

A Those whose signatures there were signed by the persons. [sic].

Q And we have here at the bottom, Commander Kamlon Hassan, and

there is the signature above the same. Did you come to know who
signed it?

A [It was] Commander Kamlon Hassan who signed that.

xxx xxx xxx

Q Jessica, I am going over this letter . . . Could you please read to us

the portion here which says the terms? . . .

A (Witness reading) "Mao ilang gusto nga andamun na ninyo ang

kantidad nga P100,000 ug P14,000 baylo sa 20 sets nga uniforms sa
Biyernes (Pebrero 3, 1989). 23

xxx xxx xxx

INTERPRETER (Translation):

This is what they like you to prepare[:] the amount of P100,000.00 and
P14,000.00 in exchange [for] 20 sets of uniform on Friday, February 3,
1989.

xxx xxx xxx

Q Now you also earlier identified this other letter and this is dated
January 21, 1988. 24 Now, could you please explain to us why it is
dated January 21, 1988 and the other one Enero 31, 1989 or January
31, 1989?

A I did not realize that I placed 1989, 1988, but it was 1989.

Q January 21, 1989?

A Yes.

xxx xxx xxx

Q Now, in this letter, were the terms also mentioned?

Please go over this.

A (Going over the letter)

Yes, ma'am.

Q Could you please read it aloud to us?

127
 A (Witness reading)

Gusto nila and P100,000.00 ng kapinan nu ug 20 sets nga completong

uniformer (7 colors marine type wala nay labot ang sapatos), tunga
medium ug tunga large size. 25

xxx xxx xxx

INTERPRETER:

They like the P100,000.00 and an addition of 20 sets of complete

uniform (7 colors, marine-type not including the shoes), one half
medium, one half large.

xxx xxx xxx

Q After having written these letters, did you come to know after [they
were] signed by your companions and all of you, do you know if these
letters were sent? If you know only.

A I would like to make it clear. The first letter was ordered to me by

Falcasantos to inform the City Mayor that initial as P500,000.00, and
when we were already — I was asked again to write, we were ordered
to affix our signature to serve as proof that all of us are alive. 26 [sic]

Calunod's testimony was substantially corroborated by both Armando Bacarro 27 and Edilberto
Perez. 28 The receipt of the ransom letters, the efforts made to raise and deliver the ransom, and the
release of the hostages upon payment of the money were testified to by Zamboanga City Mayor
Vitaliano Agan 29 and Teddy Mejia. 30

The elements of kidnapping for ransom, as embodied in Article 267 of the Revised Penal
Code, 31 having been sufficiently proven, and the appellant, a private individual, having been clearly
identified by the kidnap victims, this Court thus affirms the trial court's finding of appellant's guilt on
five counts of kidnapping for ransom.

Kidnapping of

Public Officers

Victims Virginia San Agustin-Gara, Monico Saavedra and Calixto Francisco were members of the
government monitoring team abducted by appellant's group. The three testified to the fact of
kidnapping; however, they were not able to identify the appellant. Even so, appellant's identity as one
of the kidnappers was sufficiently established by Calunod, Bacarro and Perez, who were with Gara,
Saavedra and Francisco when the abduction occurred.

That Gara, Saavedra and Francisco were detained for only three hours 32 does nor matter. In People vs.
Domasian, 33 the victim was similarly held for three hours, and was released even before his parents
received the ransom note. The accused therein argued that they could not be held guilty of
kidnapping as no enclosure was involved, and that only grave coercion was committed, if at
all. 34 Convicting appellants of kidnapping or serious illegal detention under Art. 267 (4) of the Revised
Penal Code, the Court found that the victim, an eight-year-old boy, was deprived of his liberty when
he was restrained from going home. The Court justified the conviction by holding that the offense
consisted not only in placing a person in an enclosure, but also in detaining or depriving him, in any
manner, of his liberty. 35 Likewise, in People vs. Santos, 36 the Court held that since the appellant was
charged and convicted under Article 267, paragraph 4, it was not the duration of the deprivation of
liberty which was important, but the fact that the victim, a minor, was locked up.

128
Thus, in the present case, the detention of Gara, Saavedra and Francisco for only a few hours is
immaterial. The clear fact is that the victims were public officers 37 — Gara was a fiscal analyst for the
City of Zamboanga, Saavedra worked at the City Engineer's Office, and Francisco was a barangay
councilman at the time the kidnapping occurred. Appellant Kulais should be punished, therefore,
under Article 267, paragraph 4 of the Revised Penal Code, and not Art, 268, as the trial court held.

The present case is different from People vs. Astorga, 38 which held that the crime committed was not
kidnapping under Article 267, paragraph 4, but only grave coercion. The appellant in that case had
tricked his seven-year-old victim into going with him to a place he alone knew. His plans, however,
were foiled when a group of people became suspicious and rescued the girl from him. The Court
noted that the victim's testimony and the other pieces of evidence did not indicate that the appellant
wanted to detain her, or that he actually detained her.

In the present case, the evidence presented by the prosecution indubitably established that the
victims were detained, albeit for a few hours. There is proof beyond reasonable doubt that
kidnapping took place, and that appellant was a member of the armed group which abducted the
victims.

Third Issue:

Denial and Alibi

The appellant's bare denial is a weak defense that becomes even weaker in the face of the
prosecution witnesses' positive identification of him. Jurisprudence gives greater weight to the
positive narration of prosecution witnesses than to the negative testimonies of the
defense. 39 Between positive and categorical testimony which has a ring of truth to it on the one hand,
and a bare denial on the other, the former generally prevails. 40 Jessica Calunod, Armando Bacarro and
Edilberto Perez testified in a clear, straightforward and frank manner; and their testimonies were
compatible on material points. Moreover, no ill motive was attributed to the kidnap victims and none
was found by this Court.

We agree with the trial court's observation that the appellant did not meet the charges against him
head on. His testimony dwelt on what happened to him on the day he was arrested and on
subsequent days thereafter. Appellant did not explain where he was during the questioned dates
(December 12, 1988 to February 3, 1989); neither did he rebut Calunod, Bacarro and Perez, when they
identified him as one of their kidnappers.

Reclusion Perpetua, Not Life Imprisonment

The trial court erred when it sentenced the appellant to six terms of life imprisonment. The penalty
for kidnapping with ransom, under the Revised Penal Code, is reclusion perpetua to death. Since the
crimes happened in 1988, when the capital penalty was proscribed by the Constitution, the maximum
penalty that could have been imposed was reclusion perpetua. Life imprisonment is not synonymous
with reclusion perpetua. Unlike life imprisonment, reclusion perpetua carries with it accessory
penalties provided in the Revised Penal Code and has a definite extent or duration. Life imprisonment
is invariably imposed for serious offenses penalized by special laws, while reclusion perpetua is
prescribed in accordance with the Revised Penal Code. 41

WHEREFORE, the conviction of Appellant Jailon Kulais as principal in five counts of kidnapping for
ransom and in three counts of kidnapping is AFFIRMED, but the penalty imposed is hereby MODIFIED
as follows: Appellant is sentenced to five terms of reclusion perpetua, one for each of his five
convictions for kidnapping for ransom; and to three terms of reclusion perpetua, one each for the
kidnapping of Public Officers Virginia Gara, Monico Saavedra and Calixto Francisco. Like the other
accused who withdrew their appeals, he is REQUIRED to return the personal effects, or their monetary
value, taken from the kidnap victims. Additionally, he is ORDERED to pay the amount of P122,000
representing the ransom money paid to the kidnappers. Costs against appellant.

SO ORDERED.

129
Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

A.M. No. RTJ-92-876 September 19, 1994

STATE PROSECUTORS, complainants,

vs.
JUDGE MANUEL T. MURO, Regional Trial Court, Branch 54, Manila, respondent.

PER CURIAM:

In assaying the requisite norms for qualifications and eminence of a magistrate, legal authorities place a
premium on how he has complied with his continuing duty to know the law. A quality thus considered
essential to the judicial character is that of "a man of learning who spends tirelessly the weary hours
after midnight acquainting himself with the great body of traditions and the learning of the law; is
profoundly learned in all the learning of the law; and knows how to use that learning." 1

Obviously, it is the primary duty of a judge, which he owes to the public and to the legal profession, to
know the very law he is supposed to apply to a given controversy. He is called upon to exhibit more than
just a cursory acquaintance with the statutes and procedural rules. Party litigants will have great faith in
the administration of justice if judges cannot justly be accused of apparent deficiency in their grasp of
the legal principles. For, service in the judiciary means a continuous study and research on the law from
beginning to end. 2

In a letter-complaint 3 dated August 19, 1992, respondent Judge Manuel T. Muro of the Regional Trial
Court (RTC) of Manila, Branch 54, was charged by State Prosecutors Nilo C. Mariano, George C. Dee and
Paterno V. Tac-an with ignorance of the law, grave misconduct and violations of Rules 2.01, 3.01 and
3.02 of the Code of Judicial Conduct, committed as follows:

1. That on August 13, 1992, respondent judge issued an Order dismissing eleven (11)
cases (docketed as Crim. Cases Nos. 92-101959 to 92- 101969, inclusive) filed by the
undersigned complainant prosecutors (members of the DOJ Panel of Prosecutors)
against the accused Mrs. Imelda Romualdez Marcos, for Violation of Central Bank
Foreign Exchange Restrictions, as consolidated in CB Circular No. 960, in relation to the
penal provisions of Sec. 34 of R.A. 265, as amended, . . .;

2. That respondent Judge issued his Order solely on the basis of newspaper reports
(August 11, 1992 issues of the Philippine Daily Inquirer and the Daily Globe) concerning
the announcement on August 10, 1992 by the President of the Philippines of the lifting
by the government of all foreign exchange restrictions and the arrival at such decision
by the Monetary Board as per statement of Central Bank Governor Jose Cuisia;

3. That claiming that the reported announcement of the Executive Department on the
lifting of foreign exchange restrictions by two newspapers which are reputable and of
national circulation had the effect of repealing Central Bank Circular No. 960, as
allegedly supported by Supreme Court decisions . . ., the Court contended that it was
deprived of jurisdiction, and, therefore, motu, prop(r)io had to dismiss all the eleven
cases aforementioned "for not to do so opens this Court to charges of trying cases over
which it has no more jurisdiction;"

4. That in dismissing aforecited cases on August 13, 1992 on the basis of a Central Bank
Circular or Monetary Board Resolution which as of date hereof, has not even been
officially issued, and basing his Order/decision on a mere newspaper account of the
advance announcement made by the President of the said fact of lifting or liberalizing
foreign exchange controls, respondent judge acted prematurely and in indecent haste,
as he had no way of determining the full intent of the new CB Circular or Monetary
Board resolution, and whether the same provided for exception, as in the case of

130
 persons who had pending criminal cases before the courts for violations of Central Bank
Circulars and/or regulations previously issued on the matter;

5. That respondent Judge's arrogant and cavalier posture in taking judicial notice
purportedly as a matter of public knowledge a mere newspaper account that the
President had announced the lifting of foreign exchange restrictions as basis for his
assailed order of dismissal is highly irregular, erroneous and misplaced. For the
respondent judge to take judicial notice thereof even before it is officially released by
the Central Bank and its full text published as required by law to be effective shows his
precipitate action in utter disregard of the fundamental precept of due process which
the People is also entitled to and exposes his gross ignorance of the law, thereby
tarnishing public confidence in the integrity of the judiciary. How can the Honorable
Judge take judicial notice of something which has not yet come into force and the
contents, shape and tenor of which have not yet been published and ascertained to be
the basis of judicial action? The Honorable Judge had miserably failed to "endeavor
diligently to ascertain the facts" in the case at bar contrary to Rule 3.02 of the Code of
Judicial Conduct constituting Grave Misconduct;

6. That respondent Judge did not even ha(ve) the prudence of requiring first the
comment of the prosecution on the effect of aforesaid Central Bank Circular/Monetary
Board resolution on the pending cases before dismissing the same, thereby denying the
Government of its right to due process;

7. That the lightning speed with which respondent Judge acted to dismiss the cases may
be gleaned from the fact that such precipitate action was undertaken despite already
scheduled continuation of trial dates set in the order of the court (the prosecution
having started presenting its evidence . . .) dated August 11, 1992 to wit: August 31,
September 3, 10, 21, & 23 and October 1, 1992, all at 9:30 o'clock in the morning, in
brazen disregard of all notions of fair play, thereby depriving the Government of its right
to be heard, and clearly exposing his bias and partiality; and

8. That, in fact, the motive of respondent Judge in dismissing the case without even
waiting for a motion to quash filed by the counsel for accused has even placed his
dismissal Order suspect.

Pursuant to a resolution of this Court dated September 8, 1992, respondent judge filed his
comment, 4 contending, inter alia, that there was no need to await publication of the Central Bank (CB)
circular repealing the existing law on foreign exchange controls for the simple reason that the public
announcement made by the President in several newspapers of general circulation lifting foreign
exchange controls was total, absolute, without qualification, and was immediately effective; that having
acted only on the basis of such announcement, he cannot be blamed for relying on the erroneous
statement of the President that the new foreign exchange rules rendered moot and academic the cases
filed against Mrs. Marcos, and which was corrected only on August 17, 1992 but published in the
newspapers on August 18, 1992, and only after respondent judge had issued his order of dismissal dated
August 13, 1992; that the President was ill-advised by his advisers and, instead of rescuing the Chief
Executive from embarrassment by assuming responsibility for errors in the latter's announcement, they
chose to toss the blame for the consequence of their failures to respondent judge who merely acted on
the basis of the announcements of the President which had become of public knowledge; that the
"saving clause" under CB Circular No. 1353 specifically refers only to pending actions or investigations
involving violations of CB Circular No. 1318, whereas the eleven cases dismissed involved charges for
violations of CB Circular No. 960, hence the accused cannot be tried and convicted under a law different
from that under which she was charged; that assuming that respondent judge erred in issuing the order
of dismissal, the proper remedy should have been an appeal therefrom but definitely not an
administrative complaint for his dismissal; that a mistake committed by a judge should not necessarily
be imputed as ignorance of the law; and that a "court can reverse or modify a doctrine but it does not
show ignorance of the justices or judges whose decisions were reversed or modified" because "even
doctrines initiated by the Supreme Court are later reversed, so how much more for the lower courts?"

131
He further argued that no hearing was necessary since the prosecution had nothing to explain because,
as he theorized, "What explanation could have been given? That the President was talking 'through his
hat' (to use a colloquialism) and should not be believed? That I should wait for the publication (as now
alleged by complainants), of a still then non-existent CB circular? . . . As it turned out, CB Circular No.
3153 (sic) does not affect my dismissal order because the said circular's so-called saving clause does not
refer to CB Circular 960 under which the charges in the dismissed cases were based;" that it was
discretionary on him to take judicial notice of the facts which are of public knowledge, pursuant to
Section 2 of Rule 129; that the contention of complainants that he acted prematurely and in indecent
haste for basing his order of dismissal on a mere newspaper account is contrary to the wordings of the
newspaper report wherein the President announced the lifting of controls as an accomplished fact, not
as an intention to be effected in the future, because of the use of the present perfect tense or past
tense "has lifted," not that he "intends to lift," foreign exchange controls.

Finally, respondent judge asseverates that complainants who are officers of the Department of Justice,
violated Section 6, Rule 140 of the Rules of Court which provides that "proceedings against judges of
first instance shall be private and confidential" when they caused to be published in the newspapers the
filing of the present administrative case against him; and he emphasizes the fact that he had to
immediately resolve a simple and pure legal matter in consonance with the admonition of the Supreme
Court for speedy disposition of cases.

In their reply 5 and supplemental reply, 6 complainants aver that although the saving clause under
Section 16 of CB Circular No. 1353 made specific reference to CB Circular No. 1318, it will be noted that
Section 111 of Circular No. 1318, which contains a saving clause substantially similar to that of the new
circular, in turn refers to and includes Circular No. 960. Hence, whether under Circular No. 1318 or
Circular No. 1353, pending cases involving violations of Circular No. 960 are excepted from the coverage
thereof. Further, it is alleged that the precipitate dismissal of the eleven cases, without according the
prosecution the opportunity to file a motion to quash or a comment, or even to show cause why the
cases against accused Imelda R. Marcos should not be dismissed, is clearly reflective of respondent's
partiality and bad faith. In effect, respondent judge acted as if he were the advocate of the accused.

On December 9, 1993, this Court issued a resolution referring the complaint to the Office of the Court
Administrator for evaluation, report and recommendation, pursuant to Section 7, Rule 140 of the Rules
of Court, as revised, there being no factual issues involved. The corresponding report and
recommendation, 7 dated February 14, 1994, was submitted by Deputy Court Administrator Juanito A.
Bernad, with the approval of Court Administrator Ernani Cruz-Paño.

The questioned order 8 of respondent judge reads as follows:

These eleven (11) cases are for Violation of Central Bank Foreign Exchange Restrictions
as consolidated in CB Circular No. 960 in relation to the penal provision of Sec. 34 of R.A.
265, as amended.

The accused Mrs. Imelda R. Marcos pleaded not guilty to all these cases; apparently the
other accused in some of these cases, Roberto S. Benedicto, was not arrested and
therefore the Court did not acquire jurisdiction over his person; trial was commenced as
against Mrs. Marcos.

His Excellency, the President of the Philippines, announced on August 10, 1992 that the
government has lifted all foreign exchange restrictions and it is also reported that
Central Bank Governor Jose Cuisia said that the Monetary Board arrived at such decision
(issue of the Philippine Daily Inquirer, August 11, 1992 and issue of the Daily Globe of
the same date). The Court has to give full confidence and credit to the reported
announcement of the Executive Department, specially from the highest official of that
department; the Courts are charged with judicial notice of matters which are of public
knowledge, without introduction of proof, the announcement published in at least the
two newspapers cited above which are reputable and of national circulation.

132
 Per several cases decided by the Supreme Court (People vs. Alcaras, 56 Phil. 520, People
vs. Francisco, 56 Phil. 572, People vs. Pastor, 77 Phil. 1000, People vs. Crisanto Tamayo,
61 Phil. 225), among others, it was held that the repeal of a penal law without re-
enactment extinguishes the right to prosecute or punish the offense committed under
the old law and if the law repealing the prior penal law fails to penalize the acts which
constituted the offense defined and penalized in the repealed law, the repealed law
carries with it the deprivation of the courts of jurisdiction to try, convict and sentence
persons charged with violations of the old law prior to its repeal. Under the aforecited
decisions this doctrine applies to special laws and not only to the crimes punishable in
the Revised Penal Code, such as the Import Control Law. The Central Bank Circular No.
960 under which the accused Mrs. Marcos is charged is considered as a penal law
because violation thereof is penalized with specific reference to the provision of Section
34 of Republic Act 265, which penalizes violations of Central Bank Circular No. 960,
produces the effect cited in the Supreme Court decisions and since according to the
decisions that repeal deprives the Court of jurisdiction, this Court motu
proprio dismisses all the eleven (11) cases as a forestated in the caption, for not to do so
opens this Court to charges of trying cases over which it has no more jurisdiction.

This order was subsequently assailed in a petition for certiorari filed with the Court of Appeals, entitled
"People of the Philippines vs. Hon. Manuel T. Muro, Judge, RTC of Manila, Br. 54 and Imelda R. Marcos,"
docketed as CA-G.R. SP No. 29349. When required to file her comment, private respondent Marcos
failed to file any. Likewise, after the appellate court gave due course to the petition, private respondent
was ordered, but again failed despite notice, to file an answer to the petition and to show cause why no
writ of preliminary injunction should issue. Eventually, on April 29, 1993, the Court of Appeals rendered
a decision 9 setting aside the order of August 13, 1992, and reinstating Criminal Cases Nos. 92-101959 to
92-101969.

In finding that respondent judge acted in excess of jurisdiction and with grave abuse of discretion in
issuing the order of dismissal, the appellate court held that:

The order was issued motu proprio, i.e., without any motion to dismiss filed by counsel
for the accused, without giving an opportunity for the prosecution to be heard, and
solely on the basis of newspaper reports announcing that the President has lifted all
foreign exchange restrictions.

The newspaper report is not the publication required by law in order that the
enactment can become effective and binding. Laws take effect after fifteen days
following the completion of their publication in the Official Gazette or in a newspaper of
general circulation unless it is otherwise provided (Section 1, Executive Order No. 200).
The full text of CB Circular 1353, series of 1992, entitled "Further Liberalizing Foreign
Exchange Regulation" was published in the August 27, 1992 issue of the Manila
Chronicle, the Philippine Star and the Manila Bulletin. Per certification of the CB
Corporate Affairs Office, CB Circular No. 1353 took effect on September 2 . . . .

Considering that respondent judge admittedly had not seen the official text of CB
Circular No. 1353, he was in no position to rule judiciously on whether CB Circular No.
960, under which the accused Mrs. Marcos is charged, was already repealed by CB
Circular No. 1353. . . .

xxx xxx xxx

A cursory reading of the . . . provision would have readily shown that the repeal of the
regulations on non-trade foreign exchange transactions is not absolute, as there is a
provision that with respect to violations of former regulations that are the subject of
pending actions or investigations, they shall be governed by the regulations existing at
the time the cause of action (arose). Thus his conclusion that he has lost jurisdiction
over the criminal cases is precipitate and hasty. Had he awaited the filing of a motion to

133
 dismiss by the accused, and given opportunity for the prosecution to comment/oppose
the same, his resolution would have been the result of deliberation, not speculation.

I. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take
judicial notice is to be exercised by courts with caution; care must be taken that the requisite notoriety
exists; and every reasonable doubt on the subject should be promptly resolved in the negative. 10

Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one
of common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or
uncertain; and (3) it must be known to be within the limits of the jurisdiction of the court. 11 The
provincial guide in determining what facts may be assumed to be judicially known is that of
notoriety. 12 Hence, it can be said that judicial notice is limited to facts evidenced by public records and
facts of general notoriety. 13

To say that a court will take judicial notice of a fact is merely another way of saying that the usual form
of evidence will be dispensed with if knowledge of the fact can be otherwise acquired. 14 This is because
the court assumes that the matter is so notorious that it will not be disputed. 15 But judicial notice is not
judicial knowledge. The mere personal knowledge of the judge is not the judicial knowledge of the court,
and he is not authorized to make his individual knowledge of a fact, not generally or professionally
known, the basis of his action. Judicial cognizance is taken only of those matters which are "commonly"
known. 16

Things of "common knowledge," of which courts take judicial notice, may be matters coming to the
knowledge of men generally in the course of the ordinary experiences of life, or they may be matters
which are generally accepted by mankind as true and are capable of ready and unquestioned
demonstration. 17 Thus, facts which are universally known, and which may be found in encyclopedias,
dictionaries or other publications, are judicially noticed, provided they are of such universal notoriety
and so generally understood that they may be regarded as forming part of the common knowledge of
every person. 18

Respondent judge, in the guise of exercising discretion and on the basis of a mere newspaper account
which is sometimes even referred to as hearsay evidence twice removed, took judicial notice of the
supposed lifting of foreign exchange controls, a matter which was not and cannot be considered of
common knowledge or of general notoriety. Worse, he took cognizance of an administrative regulation
which was not yet in force when the order of dismissal was issued. Jurisprudence dictates that judicial
notice cannot be taken of a statute before it becomes effective. 19 The reason is simple. A law which is
not yet in force and hence, still inexistent, cannot be of common knowledge capable of ready and
unquestionable demonstration, which is one of the requirements before a court can take judicial notice
of a fact.

Evidently, it was impossible for respondent judge, and it was definitely not proper for him, to have taken
cognizance of CB Circular No. 1353, when the same was not yet in force at the time the improvident
order of dismissal was issued.

II. Central Bank Circular No. 1353, which took effect on September 1, 1992, further liberalized the
foreign exchange regulations on receipts and disbursements of residents arising from non-trade and
trade transactions. Section 16 thereof provides for a saving clause, thus:

Sec. 16. Final Provisions of CB Circular No. 1318. - All the provisions in Chapter X of CB
Circular No. 1318 insofar as they are not inconsistent with, or contrary to the provisions
of this Circular, shall remain in full force and effect: Provided, however, that any
regulation on non-trade foreign exchange transactions which has been repealed,
amended or modified by this Circular, violations of which are the subject of pending
actions or investigations, shall not be considered repealed insofar as such pending
actions or investigations are concerned, it being understood that as to such pending
actions or investigations, the regulations existing at the time the cause of action accrued
shall govern.

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Respondent judge contends that the saving clause refers only to the provisions of Circular No. 1318,
whereas the eleven criminal cases he dismissed involve a violation of CB Circular No. 960. Hence, he
insists, Circular No. 960 is deemed repealed by the new circular and since the former is not covered by
the saving clause in the latter, there is no more basis for the charges involved in the criminal cases which
therefore warrant a dismissal of the same. The contention is patently unmeritorious.

Firstly, the second part of the saving clause in Circular No. 1353 explicitly provides that "any regulation
on non-trade foreign transactions which has been repealed, amended or modified by this
Circular, violations of which are the subject of pending actions or investigations, shall not be considered
repealed insofar as such pending actions or investigations are concerned, it being understood that as to
such pending actions or investigations, the regulations existing at the time the cause of action accrued
shall govern." The terms of the circular are clear and unambiguous and leave no room for interpretation.
In the case at bar, the accused in the eleven cases had already been arraigned, had pleaded not guilty to
the charges of violations of Circular No. 960, and said cases had already been set for trial when Circular
No. 1353 took effect. Consequently, the trial court was and is supposed to proceed with the hearing of
the cases in spite of the existence of Circular No. 1353.

Secondly, had respondent judge only bothered to read a little more carefully the texts of the circulars
involved, he would have readily perceived and known that Circular No. 1318 also contains a substantially
similar saving clause as that found in Circular No. 1353, since Section 111 of the former provides:

Sec. 111. Repealing clause. - All existing provisions of Circulars 365, 960 and 1028,
including amendments thereto, with the exception of the second paragraph of Section
68 of Circular 1028, as well as all other existing Central Bank rules and regulations or
parts thereof, which are inconsistent with or contrary to the provisions of this Circular,
are hereby repealed or modified accordingly: Provided, however, that regulations,
violations of which are the subject of pending actions or investigations, shall be
considered repealed insofar as such pending actions or investigations are concerned, it
being understood that as to such pending actions or investigations, the regulations
existing at the time the cause of action accrued shall govern.

It unequivocally appears from the section above quoted that although Circular No. 1318 repealed
Circular No. 960, the former specifically excepted from its purview all cases covered by the old
regulations which were then pending at the time of the passage of the new regulations. Thus, any
reference made to Circular No. 1318 necessarily involves and affects Circular No. 960.

III. It has been said that next in importance to the duty of rendering a righteous judgment is that of
doing it in such a manner as will beget no suspicion of the fairness and integrity of the judge. 20 This
means that a judge should not only render a just, correct and impartial decision but should do so in such
a manner as to be free from any suspicion as to its fairness and impartiality and as to his integrity. While
a judge should possess proficiency in law in order that he can competently construe and enforce the law,
it is more important that he should act and behave in such a manner that the parties before him should
have confidence in his impartiality. Thus, it is not enough that he decides cases without bias and
favoritism. Nor is it sufficient that he in fact rids himself of prepossessions. His actuations should
moreover inspire that belief. Like Caesar's wife, a judge must not only be pure but beyond suspicion. 21

Moreover, it has always heretofore been the rule that in disposing of controverted cases, judges should
show their full understanding of the case, avoid the suspicion of arbitrary conclusion, promote
confidence in their intellectual integrity and contribute useful precedents to the growth of the law. 22 A
judge should be mindful that his duty is the application of general law to particular instances, that ours
is a government of laws and not of men, and that he violates his duty as a minister of justice under such
a system if he seeks to do what he may personally consider substantial justice in a particular case and
disregards the general law as he knows it to be binding on him. Such action may have detrimental
consequences beyond the immediate controversy. He should administer his office with due regard to
the integrity of the system of the law itself, remembering that he is not a depository of arbitrary power,
but a judge under the sanction of the law. 23 These are immutable principles that go into the very
essence of the task of dispensing justice and we see no reason why they should not be duly considered
in the present case.

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The assertion of respondent judge that there was no need to await publication of Circular No. 1353 for
the reason that the public announcement made by the President in several newspapers of general
circulation lifting foreign exchange controls is total, absolute, without qualification, and immediately
effective, is beyond comprehension. As a judge of the Regional Trial Court of Manila, respondent is
supposed to be well-versed in the elementary legal mandates on the publication of laws before they
take effect. It is inconceivable that respondent should insist on an altogether different and illogical
interpretation of an established and well-entrenched rule if only to suit his own personal opinion and, as
it were, to defend his indefensible action. It was not for him to indulge or even to give the appearance of
catering to the at-times human failing of yielding to first impressions. 24 He having done so, in the face of
the foregoing premises, this Court is hard put to believe that he indeed acted in good faith.

IV. This is not a simple case of a misapplication or erroneous interpretation of the law. The very act of
respondent judge in altogether dismissing sua sponte the eleven criminal cases without even a motion
to quash having been filed by the accused, and without at least giving the prosecution the basic
opportunity to be heard on the matter by way of a written comment or on oral argument, is not only a
blatant denial of elementary due process to the Government but is palpably indicative of bad faith and
partiality.

The avowed desire of respondent judge to speedily dispose of the cases as early as possible is no license
for abuse of judicial power and discretion, 25 nor does such professed objective, even if true, justify a
deprivation of the prosecution's right to be heard and a violation of its right to due process of
law. 26

The lightning speed, to borrow the words of complainants, with which respondent judge resolved to
dismiss the cases without the benefit of a hearing and without reasonable notice to the prosecution
inevitably opened him to suspicion of having acted out of partiality for the accused. Regardless of how
carefully he may have evaluated changes in the factual situation and legal standing of the cases, as a
result of the newspaper report, the fact remains that he gave the prosecution no chance whatsoever to
show or prove that it had strong evidence of the guilt of the accused. To repeat, he thereby effectively
deprived the prosecution of its right to due process. 27 More importantly, notwithstanding the fact that
respondent was not sure of the effects and implications of the President's announcement, as by his own
admission he was in doubt whether or not he should dismiss the cases, 28 he nonetheless deliberately
refrained from requiring the prosecution to comment thereon. In a puerile defense of his action,
respondent judge can but rhetorically ask: "What explanation could have been given? That the President
was talking 'through his hat' and should not be believed? That I should wait for the publication of a still
then non- existent CB Circular?" The pretended cogency of this ratiocination cannot stand even the
minutest legal scrutiny.

In order that bias may not be imputed to a judge, he should have the patience and circumspection to
give the opposing party a chance to present his evidence even if he thinks that the oppositor's proofs
might not be adequate to overthrow the case for the other party. A display of petulance and impatience
in the conduct of the trial is a norm of conduct which is inconsistent with the "cold neutrality of an
impartial judge." 29 At the very least, respondent judge acted injudiciously and with unjustified haste in
the outright dismissal of the eleven cases, and thereby rendered his actuation highly dubious.

V. It bears stressing that the questioned order of respondent judge could have seriously and
substantially affected the rights of the prosecution had the accused invoked the defense of double
jeopardy, considering that the dismissal was ordered after arraignment and without the consent of said
accused. This could have spawned legal complications and inevitable delay in the criminal proceedings,
were it not for the holding of the Court of Appeals that respondent judge acted with grave abuse of
discretion amounting to lack of jurisdiction. This saved the day for the People since in the absence of
jurisdiction, double jeopardy will not set in. To stress this point, and as a caveat to trial courts against
falling into the same judicial error, we reiterate what we have heretofore declared:

It is settled doctrine that double jeopardy cannot be invoked against this Court's setting
aside of the trial court's judgment of dismissal or acquittal where the prosecution which
represents the sovereign people in criminal cases is denied due process. . . . .

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 Where the prosecution is deprived of a fair opportunity to prosecute and prove its case,
its right to due process is thereby violated.

The cardinal precept is that where there is a violation of basic constitutional rights,
courts are ousted of their jurisdiction. Thus, the violation of the State's right to due
process raises a serious jurisdictional issue . . . which cannot be glossed over or
disregarded at will. Where the denial of the fundamental right of due process is
apparent, a decision rendered in disregard of that right is void for lack of
jurisdiction . . . . 30

It is also significant that accused Marcos, despite due notice, never submitted either her comment on or
an answer to the petition for certiorari as required by the Court of Appeals, nor was double jeopardy
invoked in her defense. This serves to further underscore the fact that the order of dismissal was clearly
unjustified and erroneous. Furthermore, considering that the accused is a prominent public figure with a
record of influence and power, it is not easy to allay public skepticism and suspicions on how said
dismissal order came to be, to the consequent although undeserved discredit of the entire judiciary.

VI. To hold a judge liable for rendering a manifestly unjust order through inexcusable negligence or
ignorance, it must be clearly shown that although he has acted without malice, he failed to observe in
the performance of his duty that diligence, prudence and care which the law is entitled to exact in the
rendering of any public service. Negligence and ignorance are inexcusable if they imply a manifest
injustice which cannot be explained by a reasonable interpretation, and even though there is a
misunderstanding or error of the law applied, it nevertheless results logically and reasonably, and in a
very clear and indisputable manner, in the notorious violation of the legal precept. 31

In the present case, a cursory perusal of the comment filed by respondent judge reveals that no
substantial argument has been advanced in plausible justification of his act. He utterly failed to show
any legal, factual, or even equitable justification for the dismissal of the eleven criminal cases. The
explanation given is no explanation at all. The strained and fallacious submissions therein do not speak
well of respondent and cannot but further depreciate his probity as a judge. On this point, it is best that
pertinent unedited excerpts from his comment 32 be quoted by way of graphic illustration and emphasis:

On the alleged ignorance of the law imputed to me, it is said that I issued the Order
dismissing the eleven (11) cases against Mrs. Imelda R. Marcos on the basis of
newspaper reports referred to in paragraph 2 of the letter complaint without awaiting
the official publication of the Central Bank Circular. Ordinarily a Central Bank
Circular/Resolution must be published in the Official Gazette or in a newspaper of
general circulation, but the lifting of "all foreign exchange controls" was announced by
the President of the Philippines WITHOUT QUALIFICATIONS; as published in the Daily
Globe, August 11, 1992" the government has lifted ALL foreign exchange controls," and
in the words of the Philippine Daily Inquirer report of the same date "The government
yesterday LIFTED the LAST remaining restrictions on foreign exchange transactions, . . ."
(emphasis in both quotations supplied) not only the President made the announcement
but also the Central Bank Governor Jose Cuisia joined in the announcement by saying
that "the Monetary Board arrived at the decision after noting how the "partial
liberalization" initiated early this year worked."

Therefore, because of the ABSOLUTE lifting of ALL restrictions on foreign exchange

transactions, there was no need to await the publication of the repealing circular of the
Central Bank. The purpose of requiring publication of laws and administrative rules
affecting the public is to inform the latter as to how they will conduct their affairs and
how they will conform to the laws or the rules. In this particular case, with the total
lifting of the controls, there is no need to await publication. It would have been different
if the circular that in effect repealed Central Bank Circular No. 960, under which the
accused was charged in the cases dismissed by me, had provided for penalties and/or
modified the provisions of said Circular No. 960.

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 The Complainants state that the lifting of controls was not yet in force when I dismissed
the cases but it should be noted that in the report of the two (2) newspapers
aforequoted, the President's announcement of the lifting of controls was stated in the
present perfect tense (Globe) or past tense (Inquirer). In other words, it has already
been lifted; the announcement did not say that the government INTENDS to lift all
foreign exchange restrictions but instead says that the government "has LIFTED all
foreign exchange controls," and in the other newspaper cited above, that "The
government yesterday lifted the last remaining restrictions on foreign exchange
transactions". The lifting of the last remaining exchange regulations effectively cancelled
or repealed Circular No. 960.

The President, who is the Chief Executive, publicly announced the lifting of all foreign
exchange regulations. The President has within his control directly or indirectly the
Central Bank of the Philippines, the Secretary of Finance being the Chairman of the
Monetary Board which decides the policies of the Central Bank.

No official bothered to correct or qualify the President's announcement of August 10,

published the following day, nor made an announcement that the lifting of the controls
do not apply to cases already pending, not until August 17 (the fourth day after my
Order, and the third day after report of said order was published) and after the
President said on August 17, reported in the INQUIRER's issue of August 18, 1992, that
the "new foreign exchange rules have nullified government cases against Imelda R.
Marcos, telling reporters that the charges against the widow of former President
Marcos "have become moot and academic" because of new ruling(s) which allow free
flow of currency in and out of the country" (Note, parenthetically, the reference to "new
rules" not to "rules still to be drafted"). The INQUIRER report continues: "A few hours
later, presidential spokeswoman Annabelle Abaya said, RAMOS (sic) had "corrected
himself'." "He had been belatedly advised by the Central Bank Governor Jose Cuisia and
Justice Secretary Franklin Drilon that the Monetary Board Regulation excluded from its
coverage all criminal cases pending in court and such a position shall stand legal
scrutiny', Mrs. Abaya, said."

I will elaborate on two points:

1. If the President was wrong in making the August 10 announcement (published in

August 11, 1992, newspapers) and in the August 17 announcement, SUPRA, and thus I
should have relied on the Presidential announcements, and there is basis to conclude
that the President was at the very least ILL-SERVED by his financial and legal advisers,
because no one bothered to advise the President to correct his announcements, not
until August 17, 1992, a few hours after the President had made another announcement
as to the charges against Imelda Marcos having been rendered moot and academic. The
President has a lot of work to do, and is not, to my knowledge, a financier, economist,
banker or lawyer. It therefore behooved his subalterns to give him timely (not
"belated") advice, and brief him on matters of immediate and far-reaching concerns
(such as the lifting of foreign exchange controls, designed, among others to encourage
the entry of foreign investments). Instead of rescuing the Chief Executive from
embarrassment by assuming responsibility for errors in the latter's announcement,
these advisers have chosen to toss the blame for the consequence of their failing to me,
who only acted on the basis of announcements of their Chief, which had become of
public knowledge.

xxx xxx xxx

The Court strongly feels that it has every right to assume and expect that respondent judge is possessed
with more than ordinary credentials and qualifications to merit his appointment as a presiding judge in
the Regional Trial Court of the National Capital Judicial Region, stationed in the City of Manila itself. It is,
accordingly, disheartening and regrettable to note the nature of the arguments and the kind of logic

138
that respondent judge would want to impose on this Court notwithstanding the manifest lack of
cogency thereof. This calls to mind similar scenarios and how this Court reacted thereto.

In one case, an RTC Judge was administratively charged for acquitting the accused of a violation of CB
Circular No. 960 despite the fact that the accused was apprehended with US$355,349.00 while boarding
a plane for Hongkong, erroneously ruling that the State must first prove criminal intent to violate the
law and benefit from the illegal act, and further ordering the return of US$3,000.00 out of the total
amount seized, on the mistaken interpretation that the CB circular exempts such amount from seizure.
Respondent judge therein was ordered dismissed from the government service for gross incompetence
and ignorance of the law. 33

Subsequently, the Court dismissed another RTC judge, with forfeiture of retirement benefits, for gross
ignorance of the law and for knowingly rendering an unjust order or judgment when he granted bail to
an accused charged with raping an 11-year old girl, despite the contrary recommendation of the
investigating judge, and thereafter granted the motion to dismiss the case allegedly executed by the
complainant. 34

Similarly, an RTC judge who was described by this Court as one "who is ignorant of fairly elementary and
quite familiar legal principles and administrative regulations, has a marked penchant for applying
unorthodox, even strange theories and concepts in the adjudication of controversies, exhibits
indifference to and even disdain for due process and the rule of law, applies the law whimsically,
capriciously and oppressively, and displays bias and impartiality," was dismissed from the service with
forfeiture of all retirement benefits and with prejudice to reinstatement in any branch of the
government or any of its agencies or instrumentalities. 35

Still in another administrative case, an RTJ judge was also dismissed by this Court for gross ignorance of
the law after she ordered, in a probate proceeding, the cancellation of the certificates of title issued in
the name of the complainant, without affording due process to the latter and other interested parties. 36

Only recently, an RTC judge who had been reinstated in the service was dismissed after he acquitted all
the accused in four criminal cases for illegal possession of firearms, on the ground that there was no
proof of malice or deliberate intent on the part of the accused to violate the law. The Court found him
guilty of gross ignorance of the law, his error of judgment being almost deliberate and tantamount to
knowingly rendering an incorrect and unjust judgment. 37

ACCORDINGLY, on the foregoing premises and considerations, the Court finds respondent Judge Manuel
T. Muro guilty of gross ignorance of the law. He is hereby DISMISSED from the service, such dismissal to
carry with it cancellation of eligibility, forfeiture of leave credits and retirement benefits, and
disqualification from reemployment in the government service. 38

Respondent is hereby ordered to CEASE and DESIST immediately from rendering any judgment or order,
or continuing any judicial action or proceeding whatsoever, effective upon receipt of this decision.

SO ORDERED.

Narvasa, Cruz, Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Quiason, Puno,
Vitug and Kapunan, JJ., concur.

Bidin, is on official leave.

Separate Opinions

DISSENTING OPINION

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BELLOSILLO, J.:

In other jurisdictions, it is generally accepted that judges are not accountable by way of either civil suit
or discipline for their official acts, even if clearly erroneous. Thus, open disregard of statutes, rules, and
cases has been held to be protected official activity. Although a decision may seem so erroneous as to
raise doubts concerning a judge's integrity or physiological condition, absent extrinsic evidence, the
decision itself is insufficient to establish a case against the judge. The rule is consistent with the concept
of judicial independence. An honest judge, if he were denied the protection of the extrinsic evidence
requirement, might become unduly cautious in his work, since he would be subject to discipline based
merely upon the inferences to be drawn from an erroneous decision. 1

In our jurisdiction, the law is no different. Thus, this Court has repeatedly held that -

. . . it is a fundamental rule of long standing that a judicial officer when required to

exercise his judgment or discretion is not criminally liable for any error he commits
provided he acts in good faith, that in the absence of malice or any wrongful conduct . . .
the judge cannot be held administratively responsible . . . for no one, called upon to try
the facts or interpret the law in the process of administering justice can be infallible in
his judgment, and to hold a judge administratively accountable for every erroneous
ruling or decision he renders . . . would be nothing short of harassment or would make
his position unbearable. 2

A judge cannot be subjected to liability - civil, criminal, or

administrative - for any of his official acts, no matter how erroneous, as long as he acts in good
faith. 3 He cannot be held to account or answer, criminally, civilly, or administratively, for an erroneous
decision rendered by him in good faith. 4 As a matter of public policy, in the absence of fraud, dishonesty,
or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action, even
though such acts are erroneous. 5 It is a general principle of the highest importance to proper
administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to
act upon his own convictions, without apprehension of personal consequences to himself. This concept
of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity
and independence of the judiciary." 6 This being settled doctrine, there is no choice but to apply it to the
instant case.

The facts: Respondent Manuel T. Muro, a native of Masbate, Masbate, was appointed on 6 November
1986 as Presiding Judge of the Regional Trial Court of Manila, Br. 54, by then President Corazon C.
Aquino. A product of the College of Law, Far Easter University, he graduated valedictorian in 1955,
magna cum laude, and placed sixth in the Bar examinations. Now he is being charged with ignorance of
the law, grave misconduct and violations of Rules 2.01, 3.01 and 3.02 of the Code of Judicial
Conduct 7 for dismissing motu proprio the eleven (11) cases filed by the Department of Justice Panel of
Prosecutors against Ms. Imelda Romualdez Marcos for Violation of Central Bank Foreign Exchange
Restrictions after President Fidel V. Ramos had announced, which was published in newspaper reports,
the lifting of all foreign exchange restrictions.

The majority opinion finds respondent judge guilty of gross ignorance of the law and imposes upon him
the supreme penalty of dismissal from the service, forfeiture of leave credits and retirement benefits,
and disqualification from reemployment in the government service.

With all due respect to my esteemed colleagues, particularly to the ponente who is a recognized
authority on various fields of law, I cannot help viewing the circumstances in a different light.

There is no dispute that the order issued by respondent judge has been reversed by the appellate court,
which reversal has now become final for failure of the accused to appeal therefrom; hence, no damage
has been caused except that complainants had to avail of a judicial remedy to correct the mistake. But,
as adverted to, the overturned order alone does not necessarily make respondent judge liable
administratively, much more civilly or criminally. To be answerable, the fault of the judge, if any, must
be gross or patent, malicious, deliberate or done in bad faith. 8 Plainly said, fault in this regard may exist
only when the error appears to be deliberate or in bad faith. 9

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Thus, bad faith is imputed against respondent judge, first, for insisting that "there was no need to await
publication of Circular No. 1353 for the reason that the public announcement made by the President in
several newspapers of general circulation lifting foreign exchange controls is total, absolute, without
qualification, and immediately effective," 10 and, second, for "dismissing sua sponte the eleven criminal
cases without even a motion to quash having been filed by the accused, and without at least giving the
prosecution the basic opportunity to be heard on the matter." 11

But, bad faith is the neglect or refusal to fulfill a duty, not prompted by an honest mistake, but by some
interested or sinister motive. 12 It implies breach of faith and willful failure to respond to plain and well
understood obligation. 13 It does not simply connote bad judgment or negligence; it imports a dishonest
purpose or some moral obliquity and conscious doing of wrong; it means breach of a known duty
through some motive or interest or ill will. 14

Hence, I cannot ascribe bad faith to respondent judge for I see no insidious intentions on his part. If he
insists that there really is no need to await the publication of Circular No. 1353, as he does here, it
merely shows that he sincerely believes that there is indeed no necessity to await publication. Whether
his belief is erroneous or not is thus irrelevant. Further, dismissing motu proprio the eleven criminal
cases without affording the prosecution the opportunity to be heard on the matter, erroneous though it
may be, is not inescapably indicative of bad faith. The immediate dismissal of the charges is a necessary
consequence of the belief that since the restrictions were lifted, no law was then being violated. It is an
elementary principle in procedural law and statutory construction that the repeal of a penal law
deprives the court of jurisdiction to punish persons charged with a violation of the old law prior to its
repeal. Thus, where the crime no longer exists, prosecution of the person charged under the old law
cannot be had and the action should be dismissed. 15

On the contrary, there is no reason why good faith should not be attributed to respondent judge. Good
faith means that the motive that actuated the conduct in question was in fact what the actor ascribes to
it, that is, that what he gives as his motive was in truth his motive. 16 Hence, if he honestly believes that
the bases for the criminal charges against accused have been eliminated and thus strikes down the
information and consequently dismisses the charges, respondent judge cannot be criminally, civilly, or
even administratively, held liable.

Good faith and absence of malice, corrupt motives or improper consideration are sufficient defenses
protecting a judicial officer charged with ignorance of the law and promulgation of an unjust decision
from being held accountable for errors of judgment. This, on the premise that no one called upon to try
the facts or interpret the law in the administration of justice can be infallible. 17

Respondent judge could not have seriously jeopardized the rights of the prosecution, even if the
accused invoked the defense of double jeopardy, since the remedy of certiorari is very much available.
Precisely, as has been pointed out in the majority opinion, the defense of double jeopardy is unavailing
when the prosecution is denied due process. This is in fact the office of the prevailing doctrine - to
correct indiscretions of lower court judges - which does not necessarily make them personally liable. In
fact, if respondent judge was indeed in bad faith, he should have given the prosecution an opportunity
to be heard, and after a full-blown trial, acquitted the accused. Then, the defense of double jeopardy
would have been proper and the accused would have gone scot-free. Thus, in Negado v. Judge
Autajay, 18 this Court affirmed the conclusions of the Investigating Justice of the Court of Appeals that
"[w]hen a person seeks administrative sanction against a judge simply because he has committed an
error in deciding the case against such person, when such error can be elevated to a higher court for
review and correction, the action of such person can only be suspect."

To equate the failure of accused Marcos to comment on the petition before the appellate court, and
consequently invoke the defense of double jeopardy, with the errancy of the assailed order, 19 may be
indulging in needless speculation. And to imply that the influence of the accused who is a prominent
public figure brought about the dismissal order is simply not borne out by the records.

Besides, the challenged order of respondent judge can hardly be considered as grossly erroneous to
merit his dismissal. For, while his reasoning may be erroneous, as it turned out when the reversal of his
decision by the appellate court became final, it is not at all illogical as even the President of the Republic,

141
with his learned legal advisers, after learning of the dismissal of the cases filed by his administration
against the accused, was quoted as saying that Mrs. Marcos was an "accidental" beneficiary of the
foreign exchange deregulation policy of his administration. 20 Thus, President Fidel V. Ramos further said
that "[t]he forex deregulation applies to everybody . . . . Now the cases filed by the government against
Mrs. Marcos, numbering about 11 out of 90 have become moot and academic because of the new
regulations that have come out of the Monetary Board, but that is to her advantage." 21 Where the
conclusions of the judge in his decision are not without logic or reason, it cannot be said that he is
incompetent or grossly ignorant. 22

It has been said that a judge, like Caesar's wife, must not only be pure but beyond suspicion. 23 Ideally so.
But the cold fact is that every overturned decision provokes suspicion especially from the successful
appellant who feels certain that the lower court indeed erred.

It is settled that "[a] judge should be mindful that his duty is the application of general law to a
particular instance, that ours is a government of laws and not of men, and that he violates his duty as a
minister of justice under such system if he seeks to do what he may personally consider substantial
justice in a particular case and disregards the general law as he knows it to be binding on him. Such
action may have detrimental consequences beyond the immediate controversy. He should administer
his office with due regard to the integrity of the system of the law itself, remembering that he is not a
depositary of arbitrary power, but a judge under the sanction of law." 24 As it has been said, he must
interpret the books, and not unload his ideas.

But while a judge must decide in accordance with existing laws and established jurisprudence, his own
personality, character, convictions, values, experiences and prejudices are only sublimely insignificant
and unconsciously dispensable. In every decision he makes, he is no more and no less human, his own
beliefs, perceptions and imperfections, as well as the laws he is bound to apply, all having profound
influence on his eventual choice. Thus, Mr. Justice Cardozo of the Supreme Court of the United States
once wrote of judges: "We may try to see things as objectively as we please. None the less, we can
never see them with any eyes except our own." 25 Hence, time and again, lower court judges, if not
reversed by the Court of Appeals and this Court, have continued to set new trails in jurisprudence
without exactly conforming with what has been settled. yet, whether reversed or merely unregarded,
they do not receive displeasure from this Court; on the contrary, they remain to be effective dispensers
of everyday justice.

In fine, there is no substantial proof, nay proof beyond reasonable doubt, that respondent judge issued
the assailed order in bad faith or with conscious and deliberate intent to perpetrate an injustice.

Mr. Justice Malcolm, speaking for this Court In re Horilleno, 26 said that "[i]mpeachment proceedings
before courts have been said, in other jurisdictions, to be in their nature highly penal in character and to
be governed by the rules of law applicable to criminal cases." Mr. Chief Justice Fernando, then Associate
Justice of this Court, reiterated the doctrine in Suerte v. Judge Ugbinar 27 where he said that "[t]his is to
defer the basic concept first announced in 1922 in this jurisdiction . . . in . . . In re Horilleno that
proceedings of this character being in their nature highly penal, the charge must, therefore, be proved
beyond reasonable doubt. To paraphrase the opinion further, there is no showing of the alleged
incompetence and gross ignorance of the law by a preponderance of the evidence, much less beyond a
reasonable doubt. Such an exacting standard has been adhered to by this Court in subsequent
decisions." 28

The law always imputes good faith to judicial action, and the burden is on the one challenging the same
to prove want of it. Contraposed with the "exacting standard" required, complainant-prosecutors in the
instant case failed to prove the absence of good faith on the part of the respondent judge. Consequently,
the presumption that official duty has been regularly performed stands.

I find it difficult to compare the instant case with those cited in the majority opinion. In Padilla v. Judge
Dizon, 29 respondent not only allowed the accused to go scot-free, leaving the Commissioner of Customs
without any relief against the accused, the former likewise ordered the release of US$3,000.00 to the
accused. Thus, respondent judge was found guilty not only of gross ignorance of the law, but also of
gross incompetence, and grave and serious misconduct affecting his integrity and efficiency, and was

142
consequently dismissed from the service. And, failing to learn a lesson from his earlier administrative
case, respondent judge, after his reinstatement, this time erroneously acquitted the defendants in four
(4) different cases of illegal possession of firearms. Finally the Court said, "[w]hen it has been clearly
demonstrated, as in this case, not only once but four (4) times, that the judge is either grossly
incompetent or grossly ignorant of the penal laws . . . . he becomes unfit to discharge his judicial
office." 30 Unlike former Judge Dizon, this is the first time respondent Judge Muro is being
administratively charged.

In Buenavista v. Judge Garcia, 31 the Court found respondent guilty of "serious misconduct, gross
ignorance of the law, and knowingly rendering an unjust order of judgment" for granting bail to an
accused who was charged with statutory rape, for "improper and immoral intervention in brokering a
compromise of the criminal cases" against the accused, and thereafter for granting the motion to
dismiss the rape case on the basis of an Affidavit of Desistance allegedly executed by the victim who was
then a minor. Certainly, the actuations of the respondent judge in the cited case are far worse than the
complained indiscretions of herein respondent Judge.

In the proceedings instituted against Judge Jocson, 32 he was charged with a litany of administrative
cases, six (6) in all, i.e., from gross misconduct to gross ignorance of the law, to incompetence, to
partiality. While not all the charges were sufficiently proved, respondent judge was found to be
"ignorant of fairly elementary and quite familiar legal principles and administrative regulations, (with) . . .
a marked penchant for applying unorthodox, even strange theories and concepts in the adjudication of
controversies, (and) exhibits indifference to, and even disdain for due process and the rule of law,
applies the law whimsically, capriciously and oppressively, and displays bias and partiality." The Court
thus observed, "[t]he different acts of misconduct proven against respondent judge demonstrate his
unfitness to remain in office and to continue to discharge the functions and duties of a judge, and
warrant the imposition on him of the extreme sanction of dismissal from the service." There is nothing
in the records of the instant case which shows that respondent
Judge Muro, like former Judge Jocson, exhibits a pattern for applying pecant and unaccepted theories
which breed manifest and irreversible injustice.

And, in Uy v. Judge Dizon-Capulong, 33 respondent aggravated her ignorance of the law by her refusal to
abide by the Decision of the appellate court and later of this Court, showing utter disrespect for and
open defiance of higher courts. Consequently, she was not only found guilty of gross ignorance of the
law, but also of grave and serious misconduct prejudicial to the interest of the judicial service.

Contrastingly, in a fairly recent case, 34 this Court merely imposed a fine of P10,000.00 on respondent
judge who entertained the petition for bail filed by the suspects prior to their actual arrest,
notwithstanding unrefuted allegations that the accused were allegedly relatives of the congressman
who "sponsored" the appointment of respondent to the Judiciary. In other case, 35 this Court imposed a
fine of P5,000.00 on respondent judge for ignorance of the law and grave abuse of authority after he
improperly issued a warrant of arrest and set the case for arraignment, in disregard of proper procedure.
And, still in
36
another, this Court in dismissing the complaint filed against respondent ruled that a judge cannot be
condemned unless his error is so gross and patent as to produce an inference of ignorance and bad faith
or that he knowingly rendered an unjust decision.

In sum, there is no extrinsic evidence which shows that the assailed order of respondent Judge Manuel T.
Muro was inspired by a conscious and corrupt intent to do a disservice and commit an atrocity, and thus
his dismissal is uncalled for. Where there is no clear indication from the records that the respondent's
assailed decision was inspired by corrupt motives or a reprehensible purpose, and while there may be a
misjudgment, but not a deliberate twisting of facts to justify the assailed order, dismissal of respondent
judge from the service is not proper. 37

Holding respondent judge liable for issuing the challenged order may curtail the independence of judges
and send the wrong signals to them who are supposed to exercise their office without fear of reprisal,
merely for expressing their uncorrupted views. Regretfully, litigants may suffer and gain eventual justice
only after costly and long-drawn-out appeals from erroneous decisions, but these are necessary evils
which must be endured to some extent lest judicial independence and the growth of the law be stifled.

143
Unlike collegial courts which afford their members the luxury of a deliberation, a trial judge in handing
down his decisions must brave the loneliness of his solitude and independence. And, while this Court
may slightly bend backwards if only to avoid suspicion of partiality and cliquism to a brother in the
profession, it must also step forward and take the lead to defend him against unsubstantiated tirades
which put to shame and disgrace not only the magistrate on trial but the entire judicial system as well.
As champion — at other times tormentor — of trial and appellate judges, this Court must be unrelenting
in weeding the judiciary of unscrupulous judges, but it must also be quick in dismissing administrative
complaints which serve no other purpose than to harass them. In dismissing judges from the service, the
Court must be circumspect and deliberate, lest it penalizes them for exercising their independent
judgments handed down in good faith.

Respondent judge has impressive academic and professional credentials which, experience shows, are
no longer easy to recruit for the judicial service. Above all, he has served the judiciary with creditable
distinction. It is unfeeling, if not unfair, to purge him without extrinsic evidence of bad faith and then
shatter his hopes of ascending someday the judicial hierarchy which, after all, is the ultimate dream of
every sacrificing trial judge.

I VOTE FOR THE EXONERATION OF RESPONDENT JUDGE.

# Separate Opinions

BELLOSILLO, J.:

In other jurisdictions, it is generally accepted that judges are not accountable by way of either civil suit
or discipline for their official acts, even if clearly erroneous. Thus, open disregard of statutes, rules, and
cases has been held to be protected official activity. Although a decision may seem so erroneous as to
raise doubts concerning a judge's integrity or physiological condition, absent extrinsic evidence, the
decision itself is insufficient to establish a case against the judge. The rule is consistent with the concept
of judicial independence. An honest judge, if he were denied the protection of the extrinsic evidence
requirement, might become unduly cautious in his work, since he would be subject to discipline based
merely upon the inferences to be drawn from an erroneous decision. 1

In our jurisdiction, the law is no different. Thus, this Court has repeatedly held that -

. . . it is a fundamental rule of long standing that a judicial officer when required to

exercise his judgment or discretion is not criminally liable for any error he commits
provided he acts in good faith, that in the absence of malice or any wrongful conduct . . .
the judge cannot be held administratively responsible . . . for no one, called upon to try
the facts or interpret the law in the process of administering justice can be infallible in
his judgment, and to hold a judge administratively accountable for every erroneous
ruling or decision he renders . . . would be nothing short of harassment or would make
his position unbearable. 2

A judge cannot be subjected to liability - civil, criminal, or

administrative - for any of his official acts, no matter how erroneous, as long as he acts in good
faith. 3 He cannot be held to account or answer, criminally, civilly, or administratively, for an erroneous
decision rendered by him in good faith. 4 As a matter of public policy, in the absence of fraud, dishonesty,
or corruption, the acts of a judge in his judicial capacity are not subject to disciplinary action, even
though such acts are erroneous. 5 It is a general principle of the highest importance to proper
administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to
act upon his own convictions, without apprehension of personal consequences to himself. This concept
of judicial immunity rests upon consideration of public policy, its purpose being to preserve the integrity
and independence of the judiciary." 6 This being settled doctrine, there is no choice but to apply it to the
instant case.

The facts: Respondent Manuel T. Muro, a native of Masbate, Masbate, was appointed on 6 November
1986 as Presiding Judge of the Regional Trial Court of Manila, Br. 54, by then President Corazon C.
Aquino. A product of the College of Law, Far Easter University, he graduated valedictorian in 1955,

144
magna cum laude, and placed sixth in the Bar examinations. Now he is being charged with ignorance of
the law, grave misconduct and violations of Rules 2.01, 3.01 and 3.02 of the Code of Judicial
Conduct 7 for dismissing motu proprio the eleven (11) cases filed by the Department of Justice Panel of
Prosecutors against Ms. Imelda Romualdez Marcos for Violation of Central Bank Foreign Exchange
Restrictions after President Fidel V. Ramos had announced, which was published in newspaper reports,
the lifting of all foreign exchange restrictions.

The majority opinion finds respondent judge guilty of gross ignorance of the law and imposes upon him
the supreme penalty of dismissal from the service, forfeiture of leave credits and retirement benefits,
and disqualification from reemployment in the government service.

With all due respect to my esteemed colleagues, particularly to the ponente who is a recognized
authority on various fields of law, I cannot help viewing the circumstances in a different light.

There is no dispute that the order issued by respondent judge has been reversed by the appellate court,
which reversal has now become final for failure of the accused to appeal therefrom; hence, no damage
has been caused except that complainants had to avail of a judicial remedy to correct the mistake. But,
as adverted to, the overturned order alone does not necessarily make respondent judge liable
administratively, much more civilly or criminally. To be answerable, the fault of the judge, if any, must
be gross or patent, malicious, deliberate or done in bad faith. 8 Plainly said, fault in this regard may exist
only when the error appears to be deliberate or in bad faith. 9

Thus, bad faith is imputed against respondent judge, first, for insisting that "there was no need to await
publication of Circular No. 1353 for the reason that the public announcement made by the President in
several newspapers of general circulation lifting foreign exchange controls is total, absolute, without
qualification, and immediately effective," 10 and, second, for "dismissing sua sponte the eleven criminal
cases without even a motion to quash having been filed by the accused, and without at least giving the
prosecution the basic opportunity to be heard on the matter." 11

But, bad faith is the neglect or refusal to fulfill a duty, not prompted by an honest mistake, but by some
interested or sinister motive. 12 It implies breach of faith and willful failure to respond to plain and well
understood obligation. 13 It does not simply connote bad judgment or negligence; it imports a dishonest
purpose or some moral obliquity and conscious doing of wrong; it means breach of a known duty
through some motive or interest or ill will. 14

Hence, I cannot ascribe bad faith to respondent judge for I see no insidious intentions on his part. If he
insists that there really is no need to await the publication of Circular No. 1353, as he does here, it
merely shows that he sincerely believes that there is indeed no necessity to await publication. Whether
his belief is erroneous or not is thus irrelevant. Further, dismissing motu proprio the eleven criminal
cases without affording the prosecution the opportunity to be heard on the matter, erroneous though it
may be, is not inescapably indicative of bad faith. The immediate dismissal of the charges is a necessary
consequence of the belief that since the restrictions were lifted, no law was then being violated. It is an
elementary principle in procedural law and statutory construction that the repeal of a penal law
deprives the court of jurisdiction to punish persons charged with a violation of the old law prior to its
repeal. Thus, where the crime no longer exists, prosecution of the person charged under the old law
cannot be had and the action should be dismissed. 15

On the contrary, there is no reason why good faith should not be attributed to respondent judge. Good
faith means that the motive that actuated the conduct in question was in fact what the actor ascribes to
it, that is, that what he gives as his motive was in truth his motive. 16 Hence, if he honestly believes that
the bases for the criminal charges against accused have been eliminated and thus strikes down the
information and consequently dismisses the charges, respondent judge cannot be criminally, civilly, or
even administratively, held liable.

Good faith and absence of malice, corrupt motives or improper consideration are sufficient defenses
protecting a judicial officer charged with ignorance of the law and promulgation of an unjust decision
from being held accountable for errors of judgment. This, on the premise that no one called upon to try
the facts or interpret the law in the administration of justice can be infallible. 17

145
Respondent judge could not have seriously jeopardized the rights of the prosecution, even if the
accused invoked the defense of double jeopardy, since the remedy of certiorari is very much available.
Precisely, as has been pointed out in the majority opinion, the defense of double jeopardy is unavailing
when the prosecution is denied due process. This is in fact the office of the prevailing doctrine - to
correct indiscretions of lower court judges - which does not necessarily make them personally liable. In
fact, if respondent judge was indeed in bad faith, he should have given the prosecution an opportunity
to be heard, and after a full-blown trial, acquitted the accused. Then, the defense of double jeopardy
would have been proper and the accused would have gone scot-free. Thus, in Negado v. Judge
Autajay, 18 this Court affirmed the conclusions of the Investigating Justice of the Court of Appeals that
"[w]hen a person seeks administrative sanction against a judge simply because he has committed an
error in deciding the case against such person, when such error can be elevated to a higher court for
review and correction, the action of such person can only be suspect."

To equate the failure of accused Marcos to comment on the petition before the appellate court, and
consequently invoke the defense of double jeopardy, with the errancy of the assailed order, 19 may be
indulging in needless speculation. And to imply that the influence of the accused who is a prominent
public figure brought about the dismissal order is simply not borne out by the records.

Besides, the challenged order of respondent judge can hardly be considered as grossly erroneous to
merit his dismissal. For, while his reasoning may be erroneous, as it turned out when the reversal of his
decision by the appellate court became final, it is not at all illogical as even the President of the Republic,
with his learned legal advisers, after learning of the dismissal of the cases filed by his administration
against the accused, was quoted as saying that Mrs. Marcos was an "accidental" beneficiary of the
foreign exchange deregulation policy of his administration. 20 Thus, President Fidel V. Ramos further said
that "[t]he forex deregulation applies to everybody . . . . Now the cases filed by the government against
Mrs. Marcos, numbering about 11 out of 90 have become moot and academic because of the new
regulations that have come out of the Monetary Board, but that is to her advantage." 21 Where the
conclusions of the judge in his decision are not without logic or reason, it cannot be said that he is
incompetent or grossly ignorant. 22

It has been said that a judge, like Caesar's wife, must not only be pure but beyond suspicion. 23 Ideally so.
But the cold fact is that every overturned decision provokes suspicion especially from the successful
appellant who feels certain that the lower court indeed erred.

It is settled that "[a] judge should be mindful that his duty is the application of general law to a
particular instance, that ours is a government of laws and not of men, and that he violates his duty as a
minister of justice under such system if he seeks to do what he may personally consider substantial
justice in a particular case and disregards the general law as he knows it to be binding on him. Such
action may have detrimental consequences beyond the immediate controversy. He should administer
his office with due regard to the integrity of the system of the law itself, remembering that he is not a
depositary of arbitrary power, but a judge under the sanction of law." 24 As it has been said, he must
interpret the books, and not unload his ideas.

But while a judge must decide in accordance with existing laws and established jurisprudence, his own
personality, character, convictions, values, experiences and prejudices are only sublimely insignificant
and unconsciously dispensable. In every decision he makes, he is no more and no less human, his own
beliefs, perceptions and imperfections, as well as the laws he is bound to apply, all having profound
influence on his eventual choice. Thus, Mr. Justice Cardozo of the Supreme Court of the United States
once wrote of judges: "We may try to see things as objectively as we please. None the less, we can
never see them with any eyes except our own." 25 Hence, time and again, lower court judges, if not
reversed by the Court of Appeals and this Court, have continued to set new trails in jurisprudence
without exactly conforming with what has been settled. yet, whether reversed or merely unregarded,
they do not receive displeasure from this Court; on the contrary, they remain to be effective dispensers
of everyday justice.

In fine, there is no substantial proof, nay proof beyond reasonable doubt, that respondent judge issued
the assailed order in bad faith or with conscious and deliberate intent to perpetrate an injustice.

146
Mr. Justice Malcolm, speaking for this Court In re Horilleno, 26 said that "[i]mpeachment proceedings
before courts have been said, in other jurisdictions, to be in their nature highly penal in character and to
be governed by the rules of law applicable to criminal cases." Mr. Chief Justice Fernando, then Associate
Justice of this Court, reiterated the doctrine in Suerte v. Judge Ugbinar 27 where he said that "[t]his is to
defer the basic concept first announced in 1922 in this jurisdiction . . . in . . . In re Horilleno that
proceedings of this character being in their nature highly penal, the charge must, therefore, be proved
beyond reasonable doubt. To paraphrase the opinion further, there is no showing of the alleged
incompetence and gross ignorance of the law by a preponderance of the evidence, much less beyond a
reasonable doubt. Such an exacting standard has been adhered to by this Court in subsequent
decisions." 28

The law always imputes good faith to judicial action, and the burden is on the one challenging the same
to prove want of it. Contraposed with the "exacting standard" required, complainant-prosecutors in the
instant case failed to prove the absence of good faith on the part of the respondent judge. Consequently,
the presumption that official duty has been regularly performed stands.

I find it difficult to compare the instant case with those cited in the majority opinion. In Padilla v. Judge
Dizon, 29 respondent not only allowed the accused to go scot-free, leaving the Commissioner of Customs
without any relief against the accused, the former likewise ordered the release of US$3,000.00 to the
accused. Thus, respondent judge was found guilty not only of gross ignorance of the law, but also of
gross incompetence, and grave and serious misconduct affecting his integrity and efficiency, and was
consequently dismissed from the service. And, failing to learn a lesson from his earlier administrative
case, respondent judge, after his reinstatement, this time erroneously acquitted the defendants in four
(4) different cases of illegal possession of firearms. Finally the Court said, "[w]hen it has been clearly
demonstrated, as in this case, not only once but four (4) times, that the judge is either grossly
incompetent or grossly ignorant of the penal laws . . . . he becomes unfit to discharge his judicial
office." 30 Unlike former Judge Dizon, this is the first time respondent Judge Muro is being
administratively charged.

In Buenavista v. Judge Garcia, 31 the Court found respondent guilty of "serious misconduct, gross
ignorance of the law, and knowingly rendering an unjust order of judgment" for granting bail to an
accused who was charged with statutory rape, for "improper and immoral intervention in brokering a
compromise of the criminal cases" against the accused, and thereafter for granting the motion to
dismiss the rape case on the basis of an Affidavit of Desistance allegedly executed by the victim who was
then a minor. Certainly, the actuations of the respondent judge in the cited case are far worse than the
complained indiscretions of herein respondent Judge.

In the proceedings instituted against Judge Jocson, 32 he was charged with a litany of administrative
cases, six (6) in all, i.e., from gross misconduct to gross ignorance of the law, to incompetence, to
partiality. While not all the charges were sufficiently proved, respondent judge was found to be
"ignorant of fairly elementary and quite familiar legal principles and administrative regulations, (with) . . .
a marked penchant for applying unorthodox, even strange theories and concepts in the adjudication of
controversies, (and) exhibits indifference to, and even disdain for due process and the rule of law,
applies the law whimsically, capriciously and oppressively, and displays bias and partiality." The Court
thus observed, "[t]he different acts of misconduct proven against respondent judge demonstrate his
unfitness to remain in office and to continue to discharge the functions and duties of a judge, and
warrant the imposition on him of the extreme sanction of dismissal from the service." There is nothing
in the records of the instant case which shows that respondent
Judge Muro, like former Judge Jocson, exhibits a pattern for applying pecant and unaccepted theories
which breed manifest and irreversible injustice.

And, in Uy v. Judge Dizon-Capulong, 33 respondent aggravated her ignorance of the law by her refusal to
abide by the Decision of the appellate court and later of this Court, showing utter disrespect for and
open defiance of higher courts. Consequently, she was not only found guilty of gross ignorance of the
law, but also of grave and serious misconduct prejudicial to the interest of the judicial service.

Contrastingly, in a fairly recent case, 34 this Court merely imposed a fine of P10,000.00 on respondent
judge who entertained the petition for bail filed by the suspects prior to their actual arrest,

147
notwithstanding unrefuted allegations that the accused were allegedly relatives of the congressman
who "sponsored" the appointment of respondent to the Judiciary. In other case, 35 this Court imposed a
fine of P5,000.00 on respondent judge for ignorance of the law and grave abuse of authority after he
improperly issued a warrant of arrest and set the case for arraignment, in disregard of proper procedure.
And, still in
another, 36 this Court in dismissing the complaint filed against respondent ruled that a judge cannot be
condemned unless his error is so gross and patent as to produce an inference of ignorance and bad faith
or that he knowingly rendered an unjust decision.

In sum, there is no extrinsic evidence which shows that the assailed order of respondent Judge Manuel T.
Muro was inspired by a conscious and corrupt intent to do a disservice and commit an atrocity, and thus
his dismissal is uncalled for. Where there is no clear indication from the records that the respondent's
assailed decision was inspired by corrupt motives or a reprehensible purpose, and while there may be a
misjudgment, but not a deliberate twisting of facts to justify the assailed order, dismissal of respondent
judge from the service is not proper. 37

Holding respondent judge liable for issuing the challenged order may curtail the independence of judges
and send the wrong signals to them who are supposed to exercise their office without fear of reprisal,
merely for expressing their uncorrupted views. Regretfully, litigants may suffer and gain eventual justice
only after costly and long-drawn-out appeals from erroneous decisions, but these are necessary evils
which must be endured to some extent lest judicial independence and the growth of the law be stifled.

Unlike collegial courts which afford their members the luxury of a deliberation, a trial judge in handing
down his decisions must brave the loneliness of his solitude and independence. And, while this Court
may slightly bend backwards if only to avoid suspicion of partiality and cliquism to a brother in the
profession, it must also step forward and take the lead to defend him against unsubstantiated tirades
which put to shame and disgrace not only the magistrate on trial but the entire judicial system as well.
As champion — at other times tormentor — of trial and appellate judges, this Court must be unrelenting
in weeding the judiciary of unscrupulous judges, but it must also be quick in dismissing administrative
complaints which serve no other purpose than to harass them. In dismissing judges from the service, the
Court must be circumspect and deliberate, lest it penalizes them for exercising their independent
judgments handed down in good faith.

Respondent judge has impressive academic and professional credentials which, experience shows, are
no longer easy to recruit for the judicial service. Above all, he has served the judiciary with creditable
distinction. It is unfeeling, if not unfair, to purge him without extrinsic evidence of bad faith and then
shatter his hopes of ascending someday the judicial hierarchy which, after all, is the ultimate dream of
every sacrificing trial judge.

I VOTE FOR THE EXONERATION OF RESPONDENT JUDGE.

G.R. No. 114776 February 2, 2000

MENANDRO B. LAUREANO, petitioner,

vs.
COURT OF APPEALS AND SINGAPORE AIRLINES LIMITED, respondents.

QUISUMBING, J.:

This petition for review on certiorari under Rule 45 of the Rules of Court seeks to reverse the Decision of
the Court of Appeals, dated October 29, 1993, in C.A. G.R. No. CV 34476, as well as its Resolution dated
February 28, 1994, which denied the motion for reconsideration.

The facts of the case as summarized by the respondent appellate court are as follows:

Sometime in 1978, plaintiff [Menandro B. Laureano, herein petitioner], then Director of Flight
Operations and Chief Pilot of Air Manila, applied for employment with defendant company
[herein private respondent] through its Area Manager in Manila.

148
On September 30, 1978, after the usual personal interview, defendant wrote to plaintiff,
offering a contract of employment as an expatriate B-707 captain for an original period of two
(2) years commencing on January 21, 1978. Plaintiff accepted the offer and commenced working
on January 20, 1979. After passing the six-month probation period, plaintiffs appointment was
confirmed effective July 21, 1979. (Annex "B", p. 30, Rollo).

On July 21, 1979, defendant offered plaintiff an extension of his two-year contract to five (5)
years effective January 21, 1979 to January 20, 1984 subject to the terms and conditions set
forth in the contract of employment, which the latter accepted (Annex "C" p. 31, Rec.).

During his service as B-707 captain, plaintiff on August 24, 1980, while in command of a flight,
committed a noise violation offense at the Zurich Airport, for which plaintiff apologized.(Exh. "3",
p. 307, Rec.).

Sometime in 1980, plaintiff featured in a tail scraping incident wherein the tail of the aircraft
scraped or touched the runway during landing. He was suspended for a few days until he was
investigated by board headed by Capt. Choy. He was reprimanded.

On September 25, 1981, plaintiff was invited to take a course of A-300 conversion training at
Aeroformacion, Toulouse, France at dependant's expense. Having successfully completed and
passed the training course, plaintiff was cleared on April 7, 1981, for solo duty as captain of the
Airbus A-300 and subsequently appointed as captain of the A-300 fleet commanding an Airbus
A-300 in flights over Southeast Asia. (Annexes "D", "E" and "F", pp. 34-38, Rec.).

Sometime in 1982, defendant, hit by a recession, initiated cost-cutting measures. Seventeen

(17) expatriate captains in the Airbus fleet were found in excess of the defendant's requirement
(t.s.n., July 6, 1988. p. 11). Consequently, defendant informed its expatriate pilots including
plaintiff of the situation and advised them to take advance leaves. (Exh. "15", p. 466, Rec.)

Realizing that the recession would not be for a short time, defendant decided to terminate its
excess personnel (t.s.n., July 6, 1988, p. 17). It did not, however, immediately terminate it's A-
300 pilots. It reviewed their qualifications for possible promotion to the B-747 fleet. Among the
17 excess Airbus pilots reviewed, twelve were found qualified. Unfortunately, plaintiff was not
one of the twelve.

On October 5, 1982, defendant informed plaintiff of his termination effective November 1, 1982
and that he will be paid three (3) months salary in lieu of three months notice (Annex "I", pp. 41-
42, Rec.). Because he could not uproot his family on such short notice, plaintiff requested a
three-month notice to afford him time to exhaust all possible avenues for reconsideration and
retention. Defendant gave only two (2) months notice and one (1) month salary. (t.s.n., Nov. 12,
1987. p. 25).

Aggrieved, plaintiff on June 29, 1983, instituted a case for illegal dismissal before the Labor
Arbiter. Defendant moved to dismiss on jurisdiction grounds. Before said motion was resolved,
the complaint was withdrawn. Thereafter, plaintiff filed the instant case for damages due to
illegal termination of contract of services before the court a quo (Complaint, pp. 1-10, Rec.).

Again, defendant on February 11, 1987 filed a motion to dismiss alleging inter alia: (1) that the
court has no jurisdiction over the subject matter of the case, and (2) that Philippine courts have
no jurisdiction over the instant case. Defendant contends that the complaint is for illegal
dismissal together with a money claim arising out of and in the course of plaintiffs employment
"thus it is the Labor Arbiter and the NLRC who have the jurisdiction pursuant to Article 217 of
the Labor Code" and that, since plaintiff was employed in Singapore, all other aspects of his
employment contract and/or documents executed in Singapore. Thus, defendant postulates
that Singapore laws should apply and courts thereat shall have jurisdiction. (pp. 50-69, Rec.).

In traversing defendant's arguments, plaintiff claimed that: (1) where the items demanded in a
complaint are the natural consequences flowing from a breach of an obligation and not labor

149
 benefits, the case is intrinsically a civil dispute; (2) the case involves a question that is beyond
the field of specialization of labor arbiters; and (3) if the complaint is grounded not on the
employee's dismissal per se but on the manner of said dismissal and the consequence thereof,
the case falls under the jurisdiction of the civil courts. (pp. 70-73, Rec.)

On March 23, 1987, the court a quo denied defendant's motion to dismiss (pp. 82-84, Ibid). The
motion for reconsideration was likewise denied. (p. 95 ibid.)

On September 16, 1987, defendant filed its answer reiterating the grounds relied upon in its
motion to dismiss and further arguing that plaintiff is barred by laches, waiver, and estoppel
from instituting the complaint and that he has no cause of action . (pp. 102-115)1

On April 10, 1991, the trial court handed down its decision in favor of plaintiff. The dispositive portion of
which reads:

WHEREFORE, judgment is hereby rendered in favor of plaintiff Menandro Laureano and against
defendant Singapore Airlines Limited, ordering defendant to pay plaintiff the amounts of —

SIN$396,104.00, or its equivalent in Philippine currency at the current rate of exchange at the
time of payment, as and for unearned compensation with legal interest from the filing of the
complaint until fully paid;

SIN$154,742.00, or its equivalent in Philippine currency at the current rate of exchange at the
time of payment; and the further amounts of P67,500.00 as consequential damages with legal
interest from the filing of the complaint until fully paid;

P1,000,000.00 as and for moral damages; P1,000,000.00 as and for exemplary damages; and
P100,000.00 as and for attorney's fees.

Costs against defendant.

SO ORDERED.2

Singapore Airlines timely appealed before the respondent court and raised the issues of jurisdiction,
validity of termination, estoppel, and damages.

On October 29, 1993, the appellate court set aside the decision of the trial court, thus,

. . . In the instant case, the action for damages due to illegal termination was filed by plaintiff-
appellee only on January 8, 1987 or more than four (4) years after the effectivity date of his
dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed.

WHEREFORE, the appealed decision is hereby REVERSED and SET ASIDE. The complaint is hereby
dismissed.

SO ORDERED.3

Petitioner's and Singapore Airlines' respective motions for reconsideration were denied.

Now, before the Court, petitioner poses the following queries:

1. IS THE PRESENT ACTION ONE BASED ON CONTRACT WHICH PRESCRIBES IN TEN YEARS UNDER
ARTICLE 1144 OF THE NEW CIVIL CODE OR ONE FOR DAMAGES ARISING FROM AN INJURY TO THE
RIGHTS OF THE PLAINTIFF WHICH PRESCRIBES IN FOUR YEARS UNDER ARTICLE 1146 OF THE NEW CIVIL
CODE?

2. CAN AN EMPLOYEE WITH A FIXED PERIOD OF EMPLOYMENT BE RETRENCHED BY HIS EMPLOYER?

150
3. CAN THERE BE VALID RETRENCHMENT IF AN EMPLOYER MERELY FAILS TO REALIZE THE EXPECTED
PROFITS EVEN IF IT WERE NOT, IN FACT, INCURRING LOSSES?

At the outset, we find it necessary to state our concurrence on the assumption of jurisdiction by the
Regional Trial Court of Manila, Branch 9. The trial court rightly ruled on the application of Philippine law,
thus:

Neither can the Court determine whether the termination of the plaintiff is legal under the
Singapore Laws because of the defendant's failure to show which specific laws of Singapore
Laws apply to this case. As substantially discussed in the preceding paragraphs, the Philippine
Courts do not take judicial notice of the laws of Singapore. The defendant that claims the
applicability of the Singapore Laws to this case has the burden of proof. The defendant has
failed to do so. Therefore, the Philippine law should be applied.4

Respondent Court of Appeals acquired jurisdiction when defendant filed its appeal before said
court.5 On this matter, respondent court was correct when it barred defendant-appellant below from
raising further the issue of jurisdiction.6

Petitioner now raises the issue of whether his action is one based on Article 1144 or on Article 1146 of
the Civil Code. According to him, his termination of employment effective November 1, 1982, was based
on an employment contract which is under Article 1144, so his action should prescribe in 10 years as
provided for in said article. Thus he claims the ruling of the appellate court based on Article 1146 where
prescription is only four (4) years, is an error. The appellate court concluded that the action for illegal
dismissal originally filed before the Labor Arbiter on June 29, 1983, but which was withdrawn, then filed
again in 1987 before the Regional Trial Court, had already prescribed.

In our view, neither Article 11447 nor Article 11468 of the Civil Code is here pertinent. What is applicable
is Article 291 of the Labor Code, viz:

Art. 291. Money claims. — All money claims arising from employee-employer relations accruing
during the effectivity of this Code shall be filed within three (3) years from the time the cause of
action accrued; otherwise they shall be forever barred.

xxx xxx xxx

What rules on prescription should apply in cases like this one has long been decided by this Court. In
illegal dismissal, it is settled, that the ten-year prescriptive period fixed in Article 1144 of the Civil
Code may not be invoked by petitioners, for the Civil Code is a law of general application, while the
prescriptive period fixed in Article 292 of the Labor Code [now Article 291] is a SPECIAL LAW applicable
to claims arising from employee-employer relations.9

More recently in De Guzman vs. Court of Appeals,10 where the money claim was based on a written
contract, the Collective Bargaining Agreement, the Court held:

. . . The language of Art. 291 of the Labor Code does not limit its application only to "money
claims specifically recoverable under said Code" but covers all money claims arising from an
employee-employer relations" (Citing Cadalin v. POEA Administrator, 238 SCRA 721, 764 [1994];
and Uy v. National Labor Relations Commission, 261 SCRA 505, 515 [1996]). . . .

It should be noted further that Article 291 of the Labor Code is a special law applicable to money
claims arising from employer-employee relations; thus, it necessarily prevails over Article 1144
of the Civil Code, a general law. Basic is the rule in statutory construction that "where two
statutes are of equal theoretical application to a particular case, the one designed therefore
should prevail." (Citing Leveriza v. Intermediate Appellate Court, 157 SCRA 282, 294.) Generalia
specialibus non derogant.11

151
In the light of Article 291, aforecited, we agree with the appellate court's conclusion that petitioner's
action for damages due to illegal termination filed again on January 8, 1987 or more than four (4) years
after the effective date of his dismissal on November 1, 1982 has already prescribed.

In the instant case, the action for damages due to illegal termination was filed by plaintiff-
appelle only on January 8, 1987 or more than four (4) years after the effectivity date of his
dismissal on November 1, 1982. Clearly, plaintiff-appellee's action has already prescribed.

We base our conclusion not on Article 1144 of the Civil Code but on which sets the prescription period
at three (3) years and which governs under this jurisdiction.

Petitioner claims that the running of the prescriptive period was tolled when he filed his complaint for
illegal dismissal before the Labor Arbiter of the National Labor Relations Commission. However, this
claim deserves scant consideration; it has no legal leg to stand on. In Olympia International,
Inc., vs., Court of Appeals, we held that "although the commencement of a civil action stops the running
of the statute of prescription or limitations, its dismissal or voluntary abandonment by the plaintiff
leaves in exactly the same position as though no action had been commenced at all."12

Now, as to whether petitioner's separation from the company due to retrenchment was valid, the
appellate court found that the employment contract of petitioner allowed for pre-termination of
employment. We agree with the Court of Appeals when it said,

It is a settled rule that contracts have the force of law between the parties. From the moment
the same is perfected, the parties are bound not only to the fulfillment of what has been
expressly stipulated but also to all consequences which, according to their nature, may be in
keeping with good faith, usage and law. Thus, when plaintiff-appellee accepted the offer of
employment, he was bound by the terms and conditions set forth in the contract, among others,
the right of mutual termination by giving three months written notice or by payment of three
months salary. Such provision is clear and readily understandable, hence, there is no room for
interpretation.

xxx xxx xxx

Further, plaintiff-appellee's contention that he is not bound by the provisions of the Agreement,
as he is not a signatory thereto, deserves no merit. It must be noted that when plaintiff-
appellee's employment was confirmed, he applied for membership with the Singapore Airlines
Limited (Pilots) Association, the signatory to the aforementioned Agreement. As such, plaintiff-
appellee is estopped from questioning the legality of the said agreement or any proviso
contained therein.13

Moreover, the records of the present case clearly show that respondent court's decision is amply
supported by evidence and it did not err in its findings, including the reason for the retrenchment:

When defendant-appellant was faced with the world-wide recession of the airline industry
resulting in a slow down in the company's growth particularly in the regional operation (Asian
Area) where the Airbus 300 operates. It had no choice but to adopt cost cutting measures, such
as cutting down services, number of frequencies of flights, and reduction of the number of flying
points for the A-300 fleet (t.s.n., July 6, 1988, pp. 17-18). As a result, defendant-appellant had to
lay off A-300 pilots, including plaintiff-appellee, which it found to be in excess of what is
reasonably needed.14

All these considered, we find sufficient factual and legal basis to conclude that petitioner's termination
from employment was for an authorized cause, for which he was given ample notice and opportunity to
be heard, by respondent company. No error nor grave abuse of discretion, therefore, could be
attributed to respondent appellate court.1âwphi1.nêt

ACCORDINGLY, the instant petition is DISMISSED. The decision of the Court of Appeals in C.A. CV No.
34476 is AFFIRMED.

152
SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

G.R. No. 107493 February 1, 1996

NATIVIDAD CANDIDO, assisted by her husband ALFREDO CANDIDO, and VICTORIA C. RUMBAUA,
assisted by her husband AMOR RUMBAUA, petitioners,
vs.
COURT OF APPEALS and SOFRONIO DABU, respondents.

DECISION

BELLOSILLO, J.:

This petition for review on certiorari was instituted for the re-examination of the decision of the Court of
Appeals in CA-G.R. No. SP-24522 (CAR) affirming that of the trial court which dismissed the complaint of
petitioners for failure to establish their cause of action.

Petitioners Natividad Candido and Victoria Rumbaua are co-owners of a first-class irrigated riceland with
an area of 21,193 square meters located in Orion, Bataan. Respondent Sofronio Dabu served as their
agricultural tenant. On 21 July 1986 petitioners lodged a complaint 1 with the Regional Trial Court of
Bataan against respondent Dabu for termination of tenancy relationship and recovery of unpaid rentals
from crop-year 1983 plus attorney's fees and litigation expenses.

Petitioners averred in their complaint below that a team from the Ministry of Agrarian Reform had fixed
a provisional rental of twenty-six (26) and twenty-nine (29) sacks of palay for the rainy and dry seasons,
respectively, which respondent failed to pay beginning the crop-year 1983 dry season up to the filing of
the complaint.

Private respondent denied the material allegations of the complaint and claimed that until 1983 their
sharing system was on a 50-50 basis; that his share in the crop year 1983 dry season was still with
petitioner Natividad Candido who likewise retained his water pump. He denied any provisional rental
allegedly fixed by the Ministry of Agrarian Reform and at the same time maintained that only a proposal
for thirteen (13) cavans for the rainy season crop and twenty-five percent (25%) of the net harvest
during the dry season was put forward. He claimed that he paid his rentals by depositing thirteen (13)
cavans of palay for the 1984 rainy season crop, thirteen (13) cavans for 1985 and eight (8) cavans
representing twenty-five percent (25%) of the dry season harvest.

On motion of respondent upon issues being joined, the case was referred to the Department of Agrarian
Reform (DAR) for a preliminary determination of the existing relationship between the parties and for
certification as to its propriety for trial. Thereafter the DAR certified that the case was proper for trial
but only on the issue of non-payment of rentals and not on the ejectment of respondent Dabu.
Accordingly trial proceeded on the issue of non-payment of rentals.

After finding that no evidence was adduced by petitioners to prove the provisional rental alleged to
have been fixed by the Ministry of Agrarian Reform, the lower court dismissed the complaint. The
counterclaim of respondent Dabu was likewise dismissed after it was established that the tenancy
relationship prevailing between the parties was on a 50-50 basis. 2

The Court of Appeals 3 confirmed the findings of the court a quo and affirmed its judgment thus

We have carefully examined the testimonial and documentary evidence on record and found
nothing therein about the so-called provisional rates supposedly fixed by the DAR and allegedly
breached by appellee. Indeed neither appellant herself Natividad C. Candido nor appellants'
other witness Benjamin Santos ever mentioned in the course of their respective testimonies the
alleged provisional rates fixed by the DAR. For sure, going by appellants' evidence it would
appear that no such rates were in fact fixed by the DAR. 4

153
The appellate court also found that no evidence was introduced to prove the expenses incurred by the
parties for planting and harvesting hence the amount of the net harvest was never determined. Only the
transfer certificate of title of the property and its corresponding tax declaration were offered in
evidence.

The motion of petitioners for reconsideration 5 was merely noted considering that under Sec. 4. par. (d),
Rule 6, of the Revised Internal Rules of the Court of Appeals (RIRCA), the filing of a motion for
reconsideration in agrarian cases is not allowed. 6

Petitioners would impress upon us that the verified complaint and the affidavit presented by petitioners
to the DAR are proofs of the provisional rentals fixed by it and that it was error for the trial court not to
have taken cognizance of these documents.

We are not persuaded. It is settled that courts will only consider as evidence that which has been
formally offered. 7 The affidavit of petitioner Natividad Candido mentioning the provisional rate of
rentals was never formally offered; neither the alleged certification by the Ministry of Agrarian Reform,
Not having been formally offered, the affidavit and certification cannot be considered as evidence. Thus
the trial court as well as the appellate court correctly disregarded them. If they neglected to offer those
documents in evidence, however vital they may be, petitioners only have themselves to blame, not
respondent who was not even given a chance to object as the documents were never offered in
evidence.

A document, or any article for that matter, is not evidence when it is simply marked for identification; it
must be formally offered, and the opposing counsel given an opportunity to object to it or cross-
examine the witness called upon to prove or identify it.8 A formal offer is necessary since judges are
required to base their findings of fact and judgment only and strictly upon the evidence offered by the
parties at the trial. 9 To allow a party to attach any document to his pleading and then expect the court
to consider it as evidence may draw unwarranted consequences. The opposing party will be deprived of
his chance to examine the document and object to its admissibility. The appellate court will have
difficulty reviewing documents not previously scrutinized by the court below. The pertinent provisions
of the Revised Rules of Court on the inclusion on appeal of documentary evidence or exhibits in the
records cannot be stretched as to include such pleadings or documents not offered at the hearing of the
case. 10

Petitioners would insist that we take judicial notice of the affidavit of petitioner Natividad C. Candido
despite absence of any formal offer during the proceedings in the trial court. This is futile since this is
not among the matters which the law mandatorily requires to be taken judicial notice of; 11 neither can
we consider it of public knowledge, or capable of unquestionable demonstration, or ought to be known
to judges because of their judicial functions. 12

The testimony of petitioner Natividad Candido cannot even be relied upon, to say the least. Quite
interestingly, she could not even recall when private respondent first failed to pay his rent, if indeed
there was any failure on his part to comply with his obligation. She only said that it was sometime in
1982 or 1983, and did not even know precisely how many cavans of palay were being harvested per
crop-year.

Petitioners definitely failed to establish their cause of action. They never proved that respondent Dabu
failed to pay his rentals starting 1982. Neither were they able to competently confirm the provisional
rate of rentals allegedly fixed by the team of the Ministry of Agrarian Reform.

WHEREFORE, the petition is DENIED. The decision of the Court of Appeals in CA-G.R. No. SP-24522 (CAR)
confirming the order of the Regional Trial Court of Bataan in Civil Case No. 5429 dismissing the
complaint is AFFIRMED, with costs against petitioners.

SO ORDERED.

Padilla, Vitug, Kapunan and Hermosisima, Jr., concur.

154
G.R. No. 116918 June 19, 1997

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
BONFILO MARTINEZ y DE LA ROSA, JOHN DOE and PETER DOE, accused.

BONFILO MARTINEZ y DE LA ROSA, accused-appellant.

REGALADO, J.:

In an information filed before Branch 121 of the Regional Trial Court of Caloocan City on March 8, 1994,
accused-appellant Bonfilo Martinez and two other unidentified persons were charged with the special
complex crime of robbery with rape allegedly committed as follows:

That on or about the 28th of December, 1991 in Kalookan City, Metro Manila and within
the jurisdiction of this Honorable Court, the above-named accused, conspiring together
and mutually helping with (sic) one another, with intent of gain and by means of
violence and intimidation employed upon the persons of MICHAEL BUENVINIDA Y
SOLMAYOR, POL BONGGAT, SHERWIN SOLMAYOR, JONATHAN BONGGAT, JUNIOR
SOLMAYOR, GLORIA SOLMAYOR and GLORIVIC BANDAYANON Y QUIAJO while the
aforesaid persons were inside the house of ERNESTO BUENVINIDA viewing television
program, said accused, all armed with guns of unknown caliber, tied the hands of the
occupants of the house, did then and there wilfully, unlawfully and feloniously take, rob
and carry away the following articles belonging to ERNESTO BUENVINIDA, to wit:

1. Radio Cassette Recorder worth P3,000.00

2. Assorted imported perfumes 30,000.00

3. Assorted imported canned goods 5,000.00

4. Cash money amounting to 8,000.00

5. Cash money in U.S. Dollar $1,000.00

that in the course of said robbery, said accused, with the use of force, violence and
intimidation, did then and there wilfully, unlawfully and feloniously lie with and have
sexual intercourse with one GLORIVIC BANDAYON Y QUIAJO, against the latter's will and
without her
consent. 1

Although the two Does remained unknown and at large, appellant was arrested on March 3, 1994 for
soliciting funds for a fictitious volleyball competition. 2 After his arrest, he was confined at the Bagong
Silang Sub-station detention cell for an hour and was later transferred to the Caloocan City
Jail. 3 Appellant entered a plea of not guilty during his arraignment in Criminal Case No. C-46704 (94) on
March 21, 1994. 4

As collated from the transcripts of the testimonies of prosecution eyewitnesses Glorivic

Bandayanon 5 and Michael Buenvinida, 6 the indicated coverage of which yield the particular facts
hereunder narrated, the circumstances attendant to the crime charged are detailed in the paragraphs
that follow.

Michael Buenvinida, Michelle Buenvinida, Gloria Solmayor, Sherwin Solmayor, Junior (JR) Solmayor, Paul
Bonggat, Jonathan Bonggat and Glorivic Bandayanon were in Ernesto and Cornelia Buenvinida's house
situated at Lot 25, Block 20, Wallnut St., Rainbow Village, Caloocan City when the crime was committed
on December 28, 1991.

155
Michael and Michelle are the children of Ernesto and Cornelia. Gloria is a sister-in-law of Cornelia who
was in the house for a visit, while Sherwin, Junior, Paul and Jonathan are Cornelia's nephews. Glorivic is
a friend of Cornelia who volunteered to look after the latter's children while she is in Sweden. Ernesto
was at the office at the time of the commission of the crime.

While the occupants of the house were watching a television show in the living room at around 6:30
P.M., Michael noticed a man wearing short pants and holding a handgun jump over the low fence of
their house. The man entered the house through its unlocked front door and introduced himself to the
surprised group as a policeman. The intruder then told them that Michael's father got involved in a
stabbing incident in the local basketball court. As if on cue, two men followed the first man in entering
the house and promptly thereafter covered their faces with handkerchiefs. These two were wearing
long pants and also carried handguns. The first man who entered the house did not cover his face.

With guns pointed at them, the occupants of the house were brought to the master's bedroom where
they were tied and detained by the three intruders.

Later, one of the armed men, identified by Michael as herein appellant, untied Michael and ordered him
to pull out the plugs of the appliances in the house, such as the television set, the V.H.S. player and the
radio cassette recorder. Appellant and the other masked man then began to search the house for
valuables in the living room and in the kitchen.

Meanwhile, the first man remained in the master's bedroom and found cash money, in pesos and
dollars, and bottles of perfume. The men then placed in a big bag the radio cassette player, canned
goods, money and perfumes that they had found inside the house.

Thereafter, the first intruder, whom Glorivic referred to as the mastermind of the group, returned to the
master's bedroom and asked the terrified group for jewelry's. Unable to get any jewelry, he brought
Glorivic to the children's (Michael and Michelle's) bedroom opposite the master's bedroom. Upon
entering the room, the man turned on the lights there. In the meanwhile, his two masked companions
continued looking around the house for other valuables.

Inside the bedroom, the ostensible leader of the gang untied Glorivic and ordered her to search the
room for jewelries. After Glorivic failed to find any, the man directed her to remove her clothes and
pointed his gun at Glorivic's head. Despite her pleas and cries, the man removed the shirt, long pants
and underwear of Glorivic while keeping the gun leveled at her. Shortly after, the man put the gun on
top of the ironing board beside the bed, then pushed Glorivic towards the bed and lay on top of her.
Glorivic's resistance proved to be futile as the man was able to violate her chastity.

Before the first man could leave the room, another member of the group entered and pushed Glorivic
again to the bed when she was just about to put on her dress. Upon entering the room, the second
man's cloth cover tied around his face fell and hang around his neck. After threatening to kill her, the
man put a pillow on her face, forcibly spread Glorivic's legs and had sexual congress with her. Glorivic
would later point to appellant during the trial as this second man.

After the second man was through, the third man came in. While Glorivic was still sitting on the bed and
crying, the third man took the bed sheet and covered her face with it. Just like what his companions did
before him, the third man had sexual intercourse with Glorivic through force and intimidation, but not
without first removing the handkerchief tied over his face.

Michael was able to see the three malefactors enter and leave the room one after the other as the door
of the master's bedroom was left open. He was also able to hear Glorivic crying and her implorations to
her tormentors in the opposite room.

After the consummation of the odious act, the third man told Glorivic to dress up. Glorivic felt blood
flowing down her thighs as she put on her clothes. Thereafter, the third man tied her up and brought
her back to the company of the other occupants of the house. Michael saw Glorivic with disheveled hair
and wearing her pants turned inside out, with blood on the lower parts.

156
The felons left after intimating to the group by way of a threat that they were going to explode a hand
grenade. Around five minutes later, after ascertaining that the culprits had left, Michael and the others
untied each other. Thereafter, they went to the house of his father's friend located two blocks away and,
from there, they proceeded to the Urduja police detachment.

Glorivic met appellant again on March 7, 1994. Policemen came to her place of work and asked her to
come with them as they had a person in custody who they suspected to be herein appellant. At the
Caloocan City Jail, Glorivic was made to face eight detainees. She was able to readily recognize appellant
among the group because of the mole on his right cheek. Before she picked him out from the other men,
she carefully saw to it that the one she pointed out was really appellant.

On the part of Michael, he stated that he was fetched by policemen on March 7, 1994 at his school to
make an identification at the Dagat-Dagatan police station. Appellant was with six other inmates when
they arrived at the station. Michael pointed to appellant as one of the robbers who entered their house,
after readily remembering that he was the one who ordered him to unplug the appliances. Michael
could never be mistaken in appellant's identity because he could not forget the prominent mole and its
location on appellant's right cheek.

Testifying at the trial, 7 appellant denied any participation in the robbery with rape committed in the
Buenvinida residence. Appellant claimed that it was only on March 7, 1994 that he first met Glorivic
Bandayanon and insisted that he does not know Michael Buenvinida.

He claimed that he was in his house in Wawa, Parañaque together with his wife and children the whole
day of December 28, 1991. He moved to Bagong Silang, Caloocan City in 1993 after he was able to find
work as a mason under his brother who lives in the same district. On cross-examination, appellant
denied having visited his brother at Bagong Silang from 1991 to 1992. However, upon further
questioning by the public prosecutor, appellant admitted that he made several visits to his brother in
1991. Moreover, he explained that it usually took him three hours to travel to Caloocan City from
Parañaque by public utility bus.

Giving credence to the testimonies of the witnesses of the prosecution and rejecting appellant's defense
of alibi, the trial court 8 found appellant guilty of the composite crime of robbery with rape. Although
the proper imposable penalty is death, 9 considering the lower court's finding of two aggravating
circumstances of nocturnidad and use of a deadly weapon, appellant was sentenced to reclusion
perpetua in observance of the then constitutional prohibition against the imposition of capital
punishment. With regard to his civil liabilities, appellant was ordered to indemnify Ernesto Buenvinida in
the sum of P73,000.00 as the value of his stolen and unrecovered personal properties, and to pay
Glorivic Bandaya P30,000.00 by way of moral damages, plus the costs of suit. 10

In this present appellate review, appellant inceptively faults the lower court for convicting him despite
the supposedly undependable and untrustworthy identification made by the eyewitnesses. He claims
that Glorivic Bandayanon and Michael Buenvinida could have been mistaken in their
identification 11 because (1) of the long interval of time before they were able to confront him; (2) his
face was covered with a handkerchief as they themselves narrated in court; and (3) they could have
been so gravely terrified by the criminal act as to have their mental faculties impaired.

When an accused assails the identification made by witnesses, he is in effect attacking the credibility of
those witnesses who referred to him as the perpetrator of the crime alleged to have been
committed. 12 The case then turns on the question of credibility.

It has long been a well-entrenched rule of evidence and procedure that the issue of credibility of
witnesses is almost invariably within the exclusive province of a trial court to determine, under the
principle that the findings of trial courts deserve respect from appellate tribunals. 13 The foregoing rule
notwithstanding, we expended considerable time and effort to thoroughly examine the records and
objectively assay the evidence before us, considering the gravity of the offense charged. However, we
find no compelling reasons to overturn the lower court's conclusion on the accuracy and correctness of
the witnesses' identification of appellant as one of the persons who robbed the house of the
Buenvinidas and raped Glorivic.

157
The testimonies of the principal witnesses for the prosecution were not only consistent with and
corroborative of each other. The transcripts of stenographic notes which we have conscientiously
reviewed, further reveal that their narrations before the lower court were delivered in a clear, coherent
and unequivocal manner.

There was no perceptible hesitation or uncertainty on the part of Glorivic and Michael when they
unerringly identified appellant during the trial. The unhurried, studious and deliberate manner in which
appellant was identified by them in court added strength to their credibility 14 and immeasurably
fortified the case of the prosecution.

The records also show that the memory of these witnesses were not in any way affected by the passage
of two years and three months since the tragedy. Glorivic categorically stated on the witness stand that
the lapse of those years did not impair her memory and she could still identify those who raped
her. 15 Michael asserted that he could still positively identify appellant because of the latter's mole, as
well as the several opportunities of the former to take a good look at appellant's face during the
robbery, 16 and the same is true with Glorivic. Appellant's mole on his right cheek provided a distinctive
mark for recollection and which, coupled with the emotional atmosphere during the incident, would be
perpetually etched in the minds of the witnesses.

It is the most natural reaction for victims of criminal violence to strive to ascertain the appearance of
their assailants and observe the manner in which the crime was committed. Most often, the face and
body movements of the assailants create a lasting impression on the victim's minds which cannot be
easily erased from their memory. 17

While appellant claims that his face was covered during the commission of the crime, there were
providential points in time when the two witnesses were able to freely see his face and scan his facial
features closely to as to enable them to identify him later on.

Although appellant placed a pillow on her face. Glorivic declared that when the latter two offenders
raped her, their faces were no longer covered. In the case of appellant, the handkerchief on his face fell
upon his entering the room and he left it that way while he raped Glorivic. 18 And when the latter two
transgressors entered the house, their faces were then exposed and it was only when they were already
inside the house that they covered their faces with handkerchiefs. 19 These circumstances gave Michael
and Glorivic sufficient time and unimpeded opportunity to recognize and identify appellant.

There is no evidence to show that the two eyewitnesses were so petrified with fear as to result in
subnormal sensory functions on their part. Contrarily, in a recently decided case, we held that fear for
one's life may even cause the witness to be more observant of his surroundings. 20 The ample
opportunity to observe and the compelling reason to identify the wrongdoer are invaluable
physiognonomical and psychological factors for accuracy in such identification.

The records do not disclose any improper motive on the part of the witnesses to falsely point to
appellant as one of the robber-rapists. Appellant even admitted that he did not know Glorivic and
Michael prior to the commission of the crime. It is doctrinally settled that in the absence of evidence
showing that the prosecution witnesses were actuated by improper-motive, their identification of the
accused as the assailant should be given full faith and credit. 21

Where conditions of visibility are favorable, as those obtaining in the Buenvinida residence when the
crimes were committed, and the witnesses do not appear to be biased, their assertions as to the identity
of the malefactor should be accepted as trustworthy. 22

For his second assignment of error, appellant contends that the lower court should not have ordered
him to pay the value of the unrecovered personalties to Ernesto Buenvinida, damages to Glorivic
Bandayanon, and the costs of suit because he is not criminally liable as shown by the failure of the
witnesses to properly identify him.

We find speciosity in this second contention of appellant because such argument flows from the
premise that he is not guilty. As the trial court found, and with which we resolutely agree as already

158
explained, appellant is culpable beyond reasonable doubt for the special complex crime of robbery with
rape committed in the early evening of December 28, 1991 at Caloocan City.

However, we deem worthy of elucidation the matter of the value of the items established to have been
stolen from the house of the Buenvinidas. Incidentally, appellant claims in his brief that the amounts
alleged in the information as the bases of his civil liability for robbery were just concocted and founded
on speculation and conjectures. 23

To prove the value of the burglarized properties, the prosecution presented an affidavit executed by
Ernesto Buenvinida 24 on March 7, 1994, containing a list of the stolen movables and with their
corresponding values, as now found in the information. This affidavit was identified and marked as
Exhibit H 25 for the prosecution during the testimony of SPO4 Abner Castro, 26 the police officer who
conducted an investigation of the incident on December 28, 1991. In addition to testifying on the arrest
and investigation of appellant, Castro repeated in open court the respective values of the personal
properties as explained to him by Ernesto Buenvinida and how he helped Ernesto in the preparation
thereof. 27 The same was formally offered in evidence 28 to prove, among others, the facts and amounts
contained therein and as testified to by witness Castro. Although objected to by appellant as self-
serving, 29 the lower court admitted said document for the purpose for which it was offered and as part
of the testimony of said witness. 30

It may be theorized, and in fact appellant in effect so postulates, that the prosecution has failed to prove
the value of the stolen properties and, for lack of evidence thereon, the civil liability therefor as
adjudged by the court below may not be sustained. It is true that the evidence presented thereon
consisted of the testimony of the investigator, Abner Castro, who based his evaluation on the report to
him by Ernesto Buenvinida. These are legal aspects worth discussing for future guidance.

While it is claimed that hearsay testimony was involved, it is actually and not necessarily so. The rule
that hearsay evidence has no probative value does not apply here, since SPO4 Abner Castro was
presented as a witness and testified on two occasions, during which he explained how the value of the
stolen properties was arrived at for purposes of the criminal prosecution. During his testimony on his
investigation report and the affidavit of Ernesto Buenvinida on the amounts involved, appellant had all
the opportunity to cross examine him on the correctness thereof; and it was this opportunity to cross-
examine which negates the claim that the matters testified to by the witness are hearsay. And, said
documents having been admitted as part of testimony of the policeman, they shall accordingly be given
the same weight as that to which his testimony may be entitled.

Again, even under the rule on opinions of ordinary witnesses, the value of the stolen items was
established. It is a standing doctrine that the opinion of a witness is admissible in evidence on ordinary
matters known to all men of common perception, such as the value of ordinary household
articles. 31 Here, the witness is not just an ordinary witness, but virtually an expert, since his work as an
investigator of crimes against property has given him both the exposure to and experience in fixing the
current value of such ordinary articles subject of the crime at bar. Incidentally, it is significant that
appellant never dared to cross-examine on the points involved, which opportunity to cross-examine
takes the testimony of Castro out of the hearsay rule, while the lack of objection to the value placed by
Castro bolsters his testimony under the cited exception to the opinion rule.

Also not to be overlooked is the fact that the trial court has the power to take judicial notice, in this case
of the value of the stolen goods, because
these are matter of public knowledge or are capable of unquestionable demonstration. 32 The lower
court may, as it obviously did, take such judicial notice motu proprio. 33 Judicial cognizance, which is
based on considerations of expediency and convenience, displace evidence since, being equivalent to
proof, it fulfills the object which the evidence is intended to achieve. 34 Surely, matters like the value of
the appliances, canned goods and perfume (especially since the trial court was presided by a lady judge)
are undeniably within public knowledge and easily capable of unquestionable demonstration.

Finally, as a matter of law and not on the excuse that after all appellant cannot satisfy his civil liability,
the real value of the asported properties would nonetheless be irrelevant to the criminal liability of
appellant. Insofar as the component crime of robbery is concerned, the same was committed through

159
violence against or intimidation of persons, and not through force upon things, hence the value of the
property subject of the crime is immaterial. 35 The special complex crime of robbery with rape has,
therefore, been committed by the felonious acts of appellant and his cohorts, with all acts of rape on
that occasion being integrated in one composite crime. The value of the objects of
the apoderamiento relates only to the civil aspect, which we have already resolved.

One final complementary disposition is called for Victim Glorivic Bandayanon was subjected by appellant
and his co-conspirators to multiple rape, and under humiliating circumstances equivalent to augmented
ignominy since she was abused by the three accused successively and virtually in the presence of one
after the other. The award of P30,000.00 for moral damage made by the court below should accordingly
be amended.

WHEREFORE, the appealed judgment of the trial court is hereby AFFIRMED in full, with the sole
MODIFICATION that the damages awarded to the offended party, Glorivic Bandayanon, is hereby
increased to P50,000.00.

SO ORDERED.

Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

Footnotes

FIRST DIVISION

[G.R. No. 121099. February 17, 1999]

FIDEL T. SALAMERA, Petitioner, v. SANDIGANBAYAN, FIRST DIVISION, respondent.

DECISION

PARDO, J.:

The case is an appeal via certiorari taken by petitioner from a decision of the Sandiganbayan and its
resolution convicting him of malversation of public property defined and penalized in Article 217 in
relation to Article 222 of the Revised Penal Code, and appreciating the mitigating circumstance of full
restitution, imposing upon him the indeterminate sentence of two (2) years four (4) months and one (1)
day of prision correccional, as minimum, to six (6) years and one (1) day of prision mayor, as maximum;
the penalty of perpetual special disqualification, and a fine of P5,000.00, the value of the .38 Cal. Smith
& Wesson Revolver, with Serial No. 879886.

We reverse.

The facts may be related as follows:

On February 2, 1988, petitioner was elected to and assumed the position of mayor of the municipality of
Casiguran, province of Aurora.

Later that month, he received from Casiguran Barangay Captain1 Antonio Benavidez one .38 Caliber
Smith & Wesson Revolver, with Serial No. 879886. The gun was owned by and licensed to Ponciano
Benavidez, an uncle of Antonio, who mortgaged it to him. Petitioner placed the gun in an attache case.

After about a week, petitioner together with his security men, went to Manila, and brought with them
the attache case with the gun in it. On their return to the province, their car was stopped at a spot
checkpoint in Quezon City, where Pat. Alfredo B. Villanueva of the Quezon City Police saw the revolver.
On petitioners instruction, his security men surrendered the gun to police officer Villanueva.

Back in the municipality of Casiguran, Ponciano Benavidez, the licensed owner of the gun claimed it
from petitioner. The latter informed Ponciano that the gun was confiscated by the Quezon City Police.

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On September 30, 1988, Ponciano Benavidez filed with the office of the Provincial Prosecutor of Aurora
a complaint for theft against petitioner and Antonio Benavidez.

On December 13, 1988, Ponciano Benavidez filed with the Department of Local Government, an
administrative complaint against petitioner for abuse of authority, ignorance of the law and conduct
unbecoming of a public servant.

On January 20, 1989, the Provincial Prosecutor of Aurora dismissed the case for theft.

On April 6, 1989, complainant Ponciano Benavidez filed a complaint for theft against petitioner with the
Office of the Ombudsman in Manila.

On August 21, 1990, during the investigation of the administrative case by the Sangguniang
Panlalawigan of Aurora, complainant Ponciano Benavidez executed an affidavit of desistance
acknowledging that petitioner had paid the value of the gun, and withdrawing the administrative case
and the criminal case he filed against petitioner with the Ombudsman.

On August 22, 1990, the Sangguniang Panlalawigan approved a resolution dismissing the administrative
case against petitioner.

On March 9, 1992, the Ombudsman approved the filing by Special Prosecution Officer Prospero G.
Pelayo of an information against petitioner for malversation of public funds, which was duly filed on
March 12, 1992, with the Sandiganbayan, Manila.

On March 30, 1992, the Sandiganbayan issued a warrant of arrest. On March 30, 1992, petitioner posted
a cash bail of P20,000.00, which he deposited with the provincial treasurer of Aurora, duly approved by
Regional Trial Court Judge Filemon N. Tan of Baler, Aurora.2cräläwvirtualibräry

Upon arraignment on June 1, 1992, before the Sandiganbayan, First Division, petitioner entered a plea
of not guilty, and accordingly, the court scheduled the case for pre-trial conference.

Meantime, on or about August 14, 1992, petitioner was able to contact Pat. Villanueva in Camp Karingal,
Quezon City. The latter said that he returned the gun to Patrolman Orgas, one of petitioner's security
men on the very next day after he had confiscated it. Unfortunately, Pat. Orgas did not inform petitioner
about the recovery of the gun, and, at the time Villanueva so informed petitioner, Pat. Orgas had died.

At the pre-trial conference held on August 28, 1992, the prosecution and the accused (petitioner herein)
assisted by counsel de parte, entered into a stipulation of facts signed by them, as follows:

1. At all times relevant to this case, the accused was the Mayor of the Municipality of Casiguran, Aurora;

2. That in the exercise of his functions as Mayor, the accused had the occasion to confiscate one .38
caliber Smith & Wesson revolver with Serial No. 879886 from Barangay Captain Antonio Benavidez;

3. This weapon was actually owned by Ponciano Benavidez, the value of which the parties have not
agreed upon;

4. That the accused confiscated this weapon in the performance of his official functions and was,
therefore, in custody thereof in his capacity as such;

5. That demand was made from the accused by Ponciano Benavidez sometime in June of 1988 to
produce the above-mentioned firearm but the accused failed to do so;

6. That at a subsequent time, the accused and Ponciano Benavidez went to the offices of the Quezon
City Police Department in search of this weapon;

7. That there has been restitution of the value of the firearm by the accused to the complaining witness
Ponciano Benavidez although there is disagreement as to the amount of the restitution;

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8. That the following affidavits were executed:

a. By complaining witness Ponciano Benavidez indicating his desistance from further

prosecution thereof for reasons stated therein;

b. By Alfredo Villanueva of the Quezon City Police Department purporting to describe the
circumstances under which he allegedly confiscated the weapon in question from the
accused Mayor.

Further to the above stipulations, the Government now marks the following exhibit which is admitted by
the accused:

Exhibit A - a xerox copy of the License to Carry Firearm No. 0188490, issued by Necesitas Katigbak of the
Firearm and Explosives Unit, to Ponciano Benavidez involving .38 caliber Smith & Wesson revolver with
SN 879886.

The accused for his part has marked the following exhibits:

Exhibit 1 - The Order of the Fiscal dated January 20, 1989, dismissing the charge of Theft, which is Annex
1 to the Supplemental Affidavit;

Exhibit 2 - The administrative complaint filed by the complaining witness dated December 13, 1988,
which is Annex 2 to the Supplemental Affidavit;

Exhibit 3 - The Complaint for the filing of the case before the Ombudsman on April 6, 1989, which is
Annex 3 to the Supplemental Affidavit;

Exhibit 4 - The investigation before the Sangguniang Panlalawigan dated August 21, 1990 at Baler,
Aurora, wherein the owner of the gun submitted his affidavit of desistance and admitting therein that
he was paid for the loss of the gun, which is Annex 4 to the Supplemental Affidavit;

Exhibit 5 - the Affidavit of Desistance executed by the owner of the gun dated August 21, 1990, marked
as Annex 5 to the Supplemental Affidavit, wherein the owner of the gun admitted that he verified the
loss of the gun to be true and also admitted that the equivalent amount in cash and in kind for the .38
caliber revolver was paid to him, for which he promised to dismiss the criminal case and the
administrative case.

Exhibit 6 - the Minutes of the Sangguniang Panlalawigan of Aurora dated August 22, 1990, which
decided to dismiss the administrative case, which is marked as Annex 6 to the Supplemental Affidavit;

Exhibit 7 - the Resolution of the Investigating Fiscal for the Ombudsman dated February 24, 1992, which
is marked as Annex 7 to the Supplemental Affidavit;

Exhibit 8 - the Resolution of the Ombudsman, which is marked as Annex 8 to the Supplemental Affidavit;

Exhibit 9 - a copy of the Order of Arrest issued by the Sandiganbayan, marked as Annex 9 to the
Supplemental Affidavit;

Exhibit 10 - the payment of the Bond for the provisional release of the accused, marked as Annex 10 to
the Supplemental Affidavit;

Exhibit 11 - the Joint Affidavit of the Chairman of the Sangguniang Panlalawigan and a certain Angelito
Salamera stating that they were present when payment was made for the gun to the owner, which is
marked as Annex "11 to the Supplemental Affidavit;

Exhibit 12 - the Affidavit executed by Alfonso Villanueva dated August 14, 1992, wherein he admitted
that he had confiscated the gun at a checkpoint in Quezon City, which is marked as Annex 12 to the
Supplemental Affidavit;

162
Exhibit 13 - the Affidavit executed by Antonio Benavidez dated July 30, 1989, which is marked as Annex
13 to the Supplemental Affidavit.

On June 30, 1993, the prosecution formally presented as its evidence Exhibit "A"3 and upon the
admission thereof, rested its case.

On the other hand, the defense presented two (2) witnesses including petitioner.

After the testimony of the witnesses on July 21, 1993, the court gave the defense counsel ten (10) days
to formally offer his evidence in writing. In time, the defense formally offered its exhibits, and on
September 6, 1993, the court admitted all exhibits except Exhibits 11 and 13, which were rejected for
being hearsay.

On February 17, 1995, more than a year after the case was submitted for decision, the Sandiganbayan
promulgated its decision, the decretal portion of which is narrated in the opening paragraph of this
opinion.

On March 3, 1995, petitioner filed a motion for reconsideration of the decision; however, on July 5, 1995,
the Sandiganbayan denied the motion.

Hence, this appeal.

On October 4, 1995, the Court required respondent to file its comment on the petition. On January 4,
1996, the Office of the Special Prosecutor filed its comment on the petition for review. On January 30,
1996, the Solicitor General also filed his comment.

We give due course to the petition.

To begin with, petitioner is charged with malversation under Article 217 in relation to Article 222 of the
Revised Penal Code, providing as follows:

Article 217. Malversation of public funds or property--Presumption of malversation. - Any public officer
who, by reason of the duties of his office, is accountable for public funds or property, shall appropriate
the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall
permit any other person to take such public funds or property, wholly or partially, or shall otherwise be
guilty of the misappropriation of malversation of such funds or property, shall suffer:

1. The penalty of prision correccional in its medium and maximum periods, if the amount involved in the
misappropriation or malversation does not exceed two hundred pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the amount involved is more
than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal in its minimum period, if
the amount involved is more than 6,000 pesos but is less than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if the amount involved is
more than 12,000 pesos but is less than 22,000 pesos. If the amount exceeds the latter, the penalty shall
be reclusion temporal in its maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty of perpetual special
disqualification and a fine equal to the amount of the funds malversed or equal to the total value of the
property embezzled.

The failure of a public officer to have duly forthcoming any public funds or property with which he is
chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put
such missing funds or property to personal uses. (As amended by Rep. Act No. 1060, approved June 12,
1954).

163
Article 222. Officers included in the preceding provisions. The provisions of this chapter shall apply to
private individuals who, in any capacity whatever, have charge of any insular, provincial or municipal
funds, revenues, or property and to any administrator or depository of funds or property attached,
seized or deposited by public authority, even if such property belongs to a private individual.

One essential element of the crime of malversation is that a public officer must take public funds,
money or property, and misappropriate it to his own private use or benefit. There must be asportation
of public funds or property, akin to the taking of another's property in theft. The funds, money or
property taken must be public funds or private funds impressed with public attributes or character for
which the public officer is accountable.

In this case, Antonio Benavidez voluntarily turned over the gun, a .38 caliber Smith & Wesson revolver,
to petitioner mayor of the town of Casiguran, Aurora. Antonio surrendered the gun to the mayor. The
gun was duly licensed. It was not seized or confiscated. Antonio obtained possession of the gun from
Ponciano Benavidez, an uncle of his, who was the owner and licensee of the gun. Ponciano mortgaged it
to Antonio.

The elements of malversation, essential for the conviction of an accused, under the above penal
provisions are that

(a) the offender is a public officer;

(b) he has the custody or control of funds or property by reason of the duties of his office;

(c) the funds or property involved are public funds or property for which he is accountable; and

(d) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or
negligence permitted, the taking by another person of, such funds or property.4

The question may be asked: Did Antonio's surrender of the gun to petitioner mayor invest the gun with
public character sufficient to consider the gun as public property for which the mayor is accountable?
We believe not. There was no reason to surrender or confiscate the gun. It was duly licensed to
Ponciano Benavidez. The license is not transferable. Antonio could not validly possess the gun. He
should have returned the gun to Ponciano, the licensed owner or surrendered it to the local police or to
the Constabulary Provincial Commander. By turning over the gun to petitioner mayor, the gun did not
become public property because it was not intended for public use or purpose nor was it lawfully seized.
The gun continued to be private property, that is why the gun owner rightfully asked for its return to
him, not to be turned over to the public coffer or treasury. Petitioner's failure to return the gun after
demand by the private owner did not constitute a prima facie evidence of malversation. The property
was private and the one who demanded its return was a private person, not a person in authority. The
presumption of conversion will not apply.

A respected author in Criminal Law wrote Malversation can only be committed by a public official who
has charge of public funds or property by virtue of his official position. A public official not responsible
for public funds or property and without authority to safeguard the same can not be convicted of
malversation.5cräläwvirtualibräry

What is more, the gun was confiscated by a police officer at a checkpoint in Quezon City. The policeman
should have turned over the confiscated gun to the Constabulary Firearm and Explosive Unit, in Camp
Crame, Quezon City. Instead, he returned the gun to a security aide of petitioner mayor, as a favor to
the mayor. The security aide died in the meantime, and, apparently, the gun got lost. Assuming that the
loss was due to petitioner's fault or negligence, he is not criminally liable for malversation through
negligence because there was no evidence of conversion of public funds or property to the use or
benefit of the accused. The legal presumption of malversation created by a demand for restitution of
public funds or property is not applicable because the gun was private property and a public officer
entitled to its possession did not make the demand for its return.

164
The presumption takes the place of affirmative proofs showing the actual conversion. It obviates the
necessity of proving acts of conversion; a thing most extremely difficult to do. If in a particular case a
demand was made upon an accountable public official to produce the funds in his custody and he failed
to do so, the presumption thereby arising would render unnecessary further proof of conversion. The
disappearance of public funds in the hands of the accountable public officer is prima facie evidence of its
conversion.6 Here, there is no presumption of conversion nor evidence of actual conversion.

Nevertheless, petitioner made restitution of the value of the gun to the private owner, Ponciano
Benavidez. Obviously, petitioner did not malverse the gun by dolo or culpa to his private use or benefit.

One more point. Admittedly, there was no evidence submitted to the court of the value of the gun to
enable the court to fix the penalty to be imposed on the accused. Assuming that petitioner malversed
the gun, in malversation, the penalty for the offense is dependent on the value of the public funds,
money or property malversed. In this case, the Sandiganbayan did not base the penalty on the minimum
value of the gun in the absence of evidence of its true worth. It took judicial notice of its market value
and estimated its "reasonable value" at P5,000.00. This is a grievous error.

The Sandiganbayan could not take judicial notice of the value of the gun. It must be duly proved in
evidence as a fact. The court can not take judicial notice of a disputed fact. The court may take judicial
notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought
to be known to judges because of their judicial functions.7 Otherwise, the court must receive evidence
of disputed facts with notice to the parties.8 This is an innovation introduced in the Revised Rules of
Evidence the Supreme Court adopted on July 1, 1989, which should not be unknown to the lower
courts.9 The new rule of evidence governs this case, since it was decided in 1995, six years after its
effectivity.

WHEREFORE, the Court hereby REVERSES the appealed decision and resolution of the Sandiganbayan in
its Criminal Case No. 17563, and ACQUITS the accused Fidel Salamera y Torres, with costs de oficio.

The Court orders the Sandiganbayan to forthwith cancel the cash bail of the accused, and immediately
reimburse the amount to him.

SO ORDERED.

Davide, Jr., C.J., Melo, and Kapunan, JJ., concur.

[G.R. NO. 146584. July 12, 2004]

ERNESTO FRANCISCO y SPENOCILLA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

This is an appeal via a Petition for Review on Certiorari of the Decision1 of the Court of Appeals in CA-G.R.
CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding
petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the
Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision
mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum, as maximum, with
the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject
pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the
accusatory portion of which reads:chanroblesvirtua1awlibrary

165
That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y
Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy,
receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to
wit:chanroblesvirtua1awlibrary

One (1) pair of earrings (Heart Shape) ---P 400,000.00

One (1) White Gold Bracelet ----150,000.00

One (1) Diamond Ring---- 100,000.00

One (1) Ring with Diamond ----5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft.

Contrary to law.3 cralawred

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial
forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business
as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one
of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several
pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita
hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They
hired Pacita Linghon, Macarios sister, as one of their household helpers us sometime in February
1989.5 Pacita swept and cleaned the room periodically.Sometime in May 1991, she left the employ of
the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio
Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She
told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of
petitioner Ernesto Erning Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which
had a poster outside that said, We buy gold. Macario entered the shop, while Pacita stayed outside.
Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry
for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9 cralawred

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings.He agreed. He and a
friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000.
The latter agreed and paid Macario the amount.Ernesto gave a P200 tip to Macario. After these
transactions, Macario saw the petitioner in his shop for about five to six more times and received some
amounts.11 cralawred

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked
when she opened the locked cabinet containing her jewelry, and found that the box was empty. She
noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair
of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring worth P100,000;
one white gold bracelet with diamond stones worth P150,000; and one ring with a small diamond stone
worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with
her business ventures that she had little time to gather evidence and charge Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon
with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She
stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond

166
worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet
with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She
also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion
disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group,
invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with Jovitas
complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the
petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992, Pacita gave a sworn
statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond,
one white gold bracelet, one heart-shaped diamond ring, and one ring with big and small stones to
Mang Erning of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her fathers
operation and for food. When asked about the full name of the person to whom the jewelry was sold,
Pacita replied that she knew him only as Mang Erning.

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan,
Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the Mang Erning who had
purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for
questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of
Meycauayan, Bulacan.When they were at the police station, the petitioner, in the presence of SPO4
Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the
case.PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp
Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest
should they insist on taking him with them.13 cralawred

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal,
Branch 76.14 The case was docketed as Criminal Case No. 2005.Adoracion was also charged with
violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were
consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that
he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the
petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of
Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal
complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of
Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation,
Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner
for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to
Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court
found probable cause against the petitioner, and issued a warrant for his arrest.

On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the
petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76,
in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of fencing under
P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision
reads:chanroblesvirtua1awlibrary

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as

follows:chanroblesvirtua1awlibrary

1.In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the
crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code,

167
and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision
mayor as minimum to Eighteen (18) years, Two (2) months and Twenty (20) days of reclusion
temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of
jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the
amount of P1,300,000.00; and to pay the costs.

2.In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of
the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and sentencing her to
suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in
the amount of P45,000.00; and to pay the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located
at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in
this business since 1980.18 He did not transact with Pacita regarding Jovitas missing jewels.19 In fact, he
did not even know Jovita and met her only during the preliminary investigation of the case before the
MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first
saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter
invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation
of the case.21 The petitioner also averred that he had no transaction with Macario of whatever
nature.22 cralawred

The petitioner further testified that when the policemen in civilian clothes approached him in his shop,
they asked who Mang Erning was, as the sign in his shop carried such name. When he responded to the
question, the policemen identified themselves as members of the police force. The petitioner then gave
them his full name.23 When the policemen invited him for questioning, he refused at first. Eventually, he
agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp
Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever
offering any bribe to the policemen.25 cralawred

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable
doubt of violating P.D. No. 1612. The decretal portion of the decision reads:chanroblesvirtua1awlibrary

WHEREFORE, in view of the foregoing, judgment is hereby rendered as

follows:chanroblesvirtua1awlibrary

1.Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-
Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision
mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the
accessory penalties corresponding to the latter.

2.Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the
subject items of jewelries (sic) :chanroblesvirtua1awlibrary

one (1) pair of earrings, heart shaped P400,000.00

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

one (1) ring with diamond 5,000.00

TOTAL VALUE --> P655,000.00

168
with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said
amounts have been fully paid.

SO ORDERED.26 cralawred

The petitioner appealed the decision to the Court of Appeals contending that:

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE
ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT
TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION
WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE
ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT SHOW OF MONEY.

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27 cralawred

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:chanroblesvirtua1awlibrary

The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty beyond
reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-
Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of
which consisted of hearsay evidence.29 cralawred

The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond
reasonable doubt.He avers that the prosecution failed to prove that Pacita stole the jewelry subject of
the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the
prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold
the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the
testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for theft, are
hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him,
Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the
testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial matters;
hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to
prove all the elements of the crime charged. It asserts that the first element was proved through Pacitas
conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral

169
certainty via the testimony of Macario identifying the petitioner as the one who bought the subject
pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven
by evidence showing that the petitioner had been in the business of buying and selling jewelry for a long
period of time, and that he had the expertise to know the correct market price of the jewelry he
purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his
guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It
contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the
petitioner were minor, and could not be made as a basis to disregard the trial courts findings of facts,
which are entitled to great respect and credit.31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been
committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or anything of value, which has been derived from the
proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said
article, item, object or anything of value has been derived from the proceeds of the crime of robbery or
theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing
is malum prohibitum, and P.D. No. 1612 creates a prima faciepresumption of fencing from evidence of
possession by the accused of any good, article, item, object or anything of value which has been the
subject of robbery or theft, and prescribes a higher penalty based on the value of the property.33 The
stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of
the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of
evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked
cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the
loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case
No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had,
indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case No. 2005 was
already final and executory when the trial court rendered its decision in the instant case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved the
same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos.
1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner;
the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita;
the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos.
1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation
of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the
stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on
August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that

First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she
had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove
the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal
cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial
court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her
testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present
Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the
petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are
not admissible in evidence against a third party.35 cralawred

170
Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as
well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not
testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and
cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while
the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed
admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario.
However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as
the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacitas
declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It
must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly,
Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-
examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal
Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution
and was cross-examined on his testimony during the preliminary investigation.

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from
Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony
of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to
anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In
this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary
investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He
even admitted that some portions of his testimony on direct examination in the court a quo were
inconsistent with his testimony on cross-examination and on re-direct examination. These admissions
are buttressed by the records of the case, which show that such inconsistencies pertained to material
points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No.
92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one
bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to
the petitioner for P25,000. On direct examination in the court a quo, Macario testified that he and Pacita
sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-
examination, Macario testified that he and his sister Pacita went to the petitioners shop in Meycauayan,
Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed
his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and
not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000.
However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that
when he transacted with the petitioner for the second time, he was with a friend, and not with his sister
Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4)
pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on
direct examination. He also testified that he and his sister sold the earrings in November 1991. Because
of the contradicting accounts made by Macario, the court made the following
observations:chanroblesvirtua1awlibrary

Court

qAccording to you, you were nalilitobut you gave the correct answer, you are not nalilito here but you
gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito
hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang
sabi mo.

aBecause I am scare[d] here thats why I gave the wrong answer.

171
qYou better think about it.

aI was confused, Sir.37 cralawred

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner
received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no
evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not
know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry
to the petitioner that they belonged to a friend of hers.

Atty. Lerio

QAt that time you and your sister sold those jewels to Mang Erning did do you know already [that] it was
Mrs. Rodriguez who is the owner of those jewels?chanroblesvirtualawlibrary

ANo, Sir, I do not know.

QAnd who do you know was the owner of that jewels and that time you and your sister sold those
jewels to Mang Erning?chanroblesvirtualawlibrary

AAccording to my sister, it is (sic) owned by a friend of hers.

Court

QHow did you come to know of this Mang Erning?chanroblesvirtualawlibrary

AOnly at that time when we brought the jewels.

QBut previous to that, do you know him?chanroblesvirtualawlibrary

ANo.38 cralawred

Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry
was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was
stolen. Following is the testimony of Macario:chanroblesvirtua1awlibrary

Atty. Lerio

QWhen you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic)
Mang Erning about it?chanroblesvirtualawlibrary

Court

QNo basis, when did you come to know that the jewels belong to Mrs.
Rodriguez?chanroblesvirtualawlibrary

AIn 1992, when my sister already had a case.

QWhat did you do when you come (sic) to know about that?chanroblesvirtualawlibrary

AI was not able to do anything but just to help my sister with her case and also to help the case of Mrs.
Rodriguez.

Atty. Lerio

172
QAfter that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion
where you (sic) able to inform Mang Erning that those jewels were owned by Mrs.
Rodriguez?chanroblesvirtualawlibrary

ANo more, I have no more time.39 cralawred

The prosecution cannot even validly argue that the petitioner should have known which pieces of
jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces
stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to
adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution
relied solely on the bare and uncorroborated testimony of Jovita, that they were
worth P655,000:chanroblesvirtua1awlibrary

Atty. Lerio

QNow, will you tell this Court some of those jewels which you own?chanroblesvirtualawlibrary

AI own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-
shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of
stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all,
the jewelry is (sic) worth P665,000.00.40 cralawred

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely
declared:chanroblesvirtua1awlibrary

Atty. Lerio

QNow again, when did you acquire those jewels if you can still remember?chanroblesvirtualawlibrary

AI remember several years ago when my husband is (sic) alive.

Court

QPlease tell the court, [is] the market value of the jewels the same today?chanroblesvirtualawlibrary

ANo, that is (sic) the market value several years ago.

QSo, can you explain [if] the market value, more or less, [is] the same today?chanroblesvirtualawlibrary

ANo. The price, if we will appraise now, is much bigger.41 cralawred

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price
of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such
receipts. Thus:chanroblesvirtua1awlibrary

Court

QYou bought it from [a] private person?chanroblesvirtualawlibrary

AYes, Your Honor.

Atty. Bernal

QWhat then is your proof that you bought these jewelries (sic) from a private
person?chanroblesvirtualawlibrary

Atty. Lerio

173
That was already answered, Your Honor. She said, no receipt.42 cralawred

In People v. Paraiso, 43 we cited our ruling in People v. Marcos 44 that an ordinary witness cannot
establish the value of jewelry, nor may the courts take judicial notice of the value of the
same:chanroblesvirtua1awlibrary

[A]nd as we have ruled in the case of People v. Antonio Marcos, an ordinary witness cannot establish the
value of jewelry and the trial court can only take judicial notice of the value of goods which are matters
of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a
matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of
receipts or any other competent evidence besides the self-serving valuation made by the prosecution,
we cannot award the reparation for the stolen jewelry.45 cralawred

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the
jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be
concluded that the accused should have known that the property sold to him were stolen. This
requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and,
(b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends
on the value of the property; otherwise, the court will fix the value of the property at P5.00,
conformably to our ruling in People v. Dator:46 cralawred

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the
bag and its contents at P100.00 based on the attendant circumstances of the case.More pertinently, in
the case of People v. Reyes, this Court held that if there is no available evidence to prove the value of
the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed
on the accused-appellant should be the minimum penalty corresponding to theft involving the value
of P5.00.47 cralawred

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the
prosecutions failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and TINGA, JJ., concur.

[G.R. NO. 143276. July 20, 2004]

LANDBANK OF THE PHILIPPINES, Petitioner, v. SPOUSES VICENTE BANAL and LEONIDAS ARENAS-
BANAL, Respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Spouses Vicente and Leonidas Banal, respondents, are the registered owners of 19.3422 hectares of
agricultural land situated in San Felipe, Basud, Camarines Norte covered by Transfer Certificate of Title
No. T-6296.A portion of the land consisting of 6.2330 hectares (5.4730 of which is planted to coconut
and 0.7600 planted to palay) was compulsorily acquired by the Department of Agrarian Reform (DAR)
pursuant to Republic Act (R.A.) No. 6657,1 as amended, otherwise known as the Comprehensive
Agrarian Reform Law of 1988.

In accordance with the formula prescribed in DAR Administrative Order No. 6, Series of 1992, 2 as
amended by DAR Administrative Order No. 11, Series of 1994,3 the Land Bank of the
Philippines4 (Landbank), Petitioner, made the following valuation of the
property:chanroblesvirtua1awlibrary

174
Acquired property Area in hectaresValue

Coconut land 5.4730 P148,675.19

Riceland0.760025,243.36

==========

P173,918.55

Respondents rejected the above valuation.Thus, pursuant to Section 16(d) of R.A. 6657, as amended, a
summary administrative proceeding was conducted before the Provincial Agrarian Reform Adjudicator
(PARAD) to determine the valuation of the land.Eventually, the PARAD rendered its Decision affirming
the Landbanks valuation.

Dissatisfied with the Decision of the PARAD, respondents filed with the Regional Trial Court (RTC),
Branch 40, Daet, Camarines Norte, designated as a Special Agrarian Court, a petition for determination
of just compensation, docketed as Civil Case No. 6806.Impleaded as respondents were the DAR and the
Landbank.Petitioners therein prayed for a compensation of P100,000.00 per hectare for both coconut
land and riceland, or an aggregate amount of P623,000.00.

During the pre-trial on September 23, 1998, the parties submitted to the RTC the following admissions
of facts: (1) the subject property is governed by the provisions of R.A. 6657, as amended; (2) it was
distributed to the farmers-beneficiaries; and (3) the Landbank deposited the provisional compensation
based on the valuation made by the DAR.5 cralawred

On the same day after the pre-trial, the court issued an Order dispensing with the hearing and directing
the parties to submit their respective memoranda.6 cralawred

In its Decision dated February 5, 1999, the trial court computed the just compensation for the coconut
land at P657,137.00 and for the riceland at P46,000.00, or a total of P703,137.00, which is beyond
respondents valuation of P623,000.00.The court further awarded compounded interest at P79,732.00 in
cash.The dispositive portion of the Decision reads:chanroblesvirtua1awlibrary

WHEREFORE, judgment is hereby rendered as follows:

1.Ordering respondent Landbank to pay the Petitioners, the spouses Dr. Vicente Banal and Leonidas
Arenas-Banal, for the 5.4730 hectares of coconut land the sum of SIX HUNDRED FIFTY-SEVEN
THOUSAND ONE HUNDRED THIRTY-SEVEN PESOS (P657,137.00) in cash and in bonds in the proportion
provided by law;

2.Ordering respondent Landbank to pay the petitioners for the .7600 hectares of riceland the sum of
FORTY-SIX THOUSAND PESOS (P46,000.00) in cash and in bonds in the proportion provided by law;
andcralawlibrary

3.Ordering respondent Landbank to pay the petitioners the sum of SEVENTY-NINE THOUSAND SEVEN
HUNDRED THIRTY-TWO PESOS (P79,732.00) as the compounded interest in cash.

IT IS SO ORDERED.7 cralawred

In determining the valuation of the land, the trial court based the same on the facts established in
another case pending before it (Civil Case No. 6679, Luz Rodriguez v. DAR, et al.), using the following
formula:chanroblesvirtua1awlibrary

For the coconut land

1.Average Gross Production (AGP) x .70 x 9.70 (price per kilo of coconut) = Net Income (NI)

175
2.NI / 6% = Price Per Hectare (PPH) (applying the capitalization formula under Republic Act No. 38448 )

For the riceland

1.2.5 x AGP x Government Support Price (GSP) = Land Value (LV) or PPH (using the formula
under Executive Order No. 2289 )

2.AGP x 6% compounded annually for 26 years x GSP = Interest (pursuant to DAR AO No. 13, Series of
1994)

Forthwith, the Landbank filed with the Court of Appeals a Petition for Review , docketed as CA-G.R. SP
No. 52163.

On March 20, 2000, the Appellate Court rendered a Decision10 affirming in toto the judgment of the trial
court.The Landbanks motion for reconsideration was likewise denied.11 cralawred

Hence, this Petition for Review on Certiorari .

The fundamental issue for our resolution is whether the Court of Appeals erred in sustaining the trial
courts valuation of the land.As earlier mentioned, there was no trial on the merits.

To begin with, under Section 1 of Executive Order No. 405 (1990), the Landbank is charged primarily
with the determination of the land valuation and compensation for all private lands suitable for
agriculture under the Voluntary Offer to Sell or Compulsory Acquisition arrangement For its part, the
DAR relies on the determination of the land valuation and compensation by the Landbank.12 cralawred

Based on the Landbanks valuation of the land, the DAR makes an offer to the landowner.13 If the
landowner accepts the offer, the Landbank shall pay him the purchase price of the land after he
executes and delivers a deed of transfer and surrenders the certificate of title in favor of the
government.14 In case the landowner rejects the offer or fails to reply thereto, the DAR
adjudicator15 conducts summary administrative proceedings to determine the compensation for the
land by requiring the landowner, the Landbank and other interested parties to submit evidence as to the
just compensation for the land.16 These functions by the DAR are in accordance with its quasi-judicial
powers under Section 50 of R.A. 6657, as amended, which provides:chanroblesvirtua1awlibrary

SEC. 50.Quasi-Judicial Powers of the DAR. The DAR is hereby vested with primary jurisdiction to
determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all
matters involving the implementation of agrarian reform, except those falling under the exclusive
jurisdiction of the Department of Agriculture (DA) and the Department of Environment and Natural
Resources (DENR).

x x x.

A party who disagrees with the decision of the DAR adjudicator may bring the matter to the RTC
designated as a Special Agrarian Court17 for final determination of just compensation.18 cralawred

In the proceedings before the RTC, it is mandated to apply the Rules of Court19 and, on its own initiative
or at the instance of any of the parties, appoint one or more commissioners to examine, investigate and
ascertain facts relevant to the dispute, including the valuation of properties, and to file a written report
thereof x x x.20 In determining just compensation, the RTC is required to consider several factors
enumerated in Section 17 of R.A. 6657, as amended, thus:chanroblesvirtua1awlibrary

Sec. 17. Determination of Just Compensation. In determining just compensation, the cost of acquisition
of the land, the current value of like properties, its nature, actual use and income, the sworn valuation
by the owner, the tax declarations, and the assessment made by government assessors shall be
considered.The social and economic benefits contributed by the farmers and the farmworkers and by
the Government to the property, as well as the non-payment of taxes or loans secured from any

176
government financing institution on the said land, shall be considered as additional factors to determine
its valuation.

These factors have been translated into a basic formula in DAR Administrative Order No. 6, Series of
1992, as amended by DAR Administrative Order No. 11, Series of 1994, issued pursuant to the DARs
rule-making power to carry out the object and purposes of R.A. 6657, as amended.21 cralawred

The formula stated in DAR Administrative Order No. 6, as amended, is as

follows:chanroblesvirtua1awlibrary

LV = (CNI x 0.6) + (CS x 0.3) + (MV x 0.1)

LV = Land Value

CNI = Capitalized Net Income

CS = Comparable Sales

MV = Market Value per Tax Declaration

The above formula shall be used if all the three factors are present, relevant and applicable.

A.1When the CS factor is not present and CNI and MV are applicable, the formula shall be:

LV = (CNI x 0.9) + (MV x 0.1)

A.2When the CNI factor is not present, and CS and MV are applicable, the formula shall be:

LV = (CS x 0.9) + (MV x 0.1)

A.3When both the CS and CNI are not present and only MV is applicable, the formula shall be:

LV = MV x 2

Here, the RTC failed to observe the basic rules of procedure and the fundamental requirements in
determining just compensation for the property.Firstly,it dispensed with the hearing and merely
ordered the parties to submit their respective memoranda.Such action is grossly erroneous since the
determination of just compensation involves the examination of the following factors specified in
Section 17 of R.A. 6657, as amended:chanroblesvirtua1awlibrary

1.the cost of the acquisition of the land;chanroblesvirtuallawlibrary

2.the current value of like properties;chanroblesvirtuallawlibrary

3.its nature, actual use and income;chanroblesvirtuallawlibrary

4.the sworn valuation by the owner; the tax declarations;chanroblesvirtuallawlibrary

5.the assessment made by government assessors;chanroblesvirtuallawlibrary

6.the social and economic benefits contributed by the farmers and the farmworkers and by the
government to the property; andcralawlibrary

7.the non-payment of taxes or loans secured from any government financing institution on the said land,
if any.

Obviously, these factors involve factual matters which can be established only during a hearing wherein
the contending parties present their respective evidence.In fact, to underscore the intricate nature of

177
determining the valuation of the land, Section 58 of the same law even authorizes the Special Agrarian
Courts to appoint commissioners for such purpose.

Secondly,the RTC, in concluding that the valuation of respondents property is P703,137.00, merely took
judicial notice of the average production figures in the Rodriguez case pending before it and applied the
same to this case without conducting a hearing and worse, without the knowledge or consent of the
parties, thus:chanroblesvirtua1awlibrary

x x x .In the case x x x of the coconut portion of the land 5.4730 hectares, defendants determined the
average gross production per year at 506.95 kilos only, but in the very recent case of Luz Rodriguez v.
DAR, et al., filed and decided by this court in Civil Case No. 6679 also for just compensation for coconut
lands and Riceland situated at Basud, Camarines Norte wherein also the lands in the above-entitled case
are situated, the value fixed therein was 1,061.52 kilos per annum per hectare for coconut land and
the price per kilo is P8.82, but in the instant case the price per kilo is P9.70.In the present case, we
consider 506.95 kilos average gross production per year per hectare to be very low considering that
farm practice for coconut lands is harvest every forty-five days.We cannot also comprehended why in
the Rodriguez case and in this case there is a great variance in average production per year when in the
two cases the lands are both coconut lands and in the same place of Basud, Camarines Norte.We believe
that it is more fair to adapt the 1,061.52 kilos per hectare per year as average gross production.In
the Rodriguez case, the defendants fixed the average gross production of palay at 3,000 kilos or 60
cavans per year.The court is also constrained to apply this yearly palay production in
the Rodriguez case to the case at bar.

xxx

As shown in the Memorandum of Landbank in this case, the area of the coconut land taken under CARP
is 5.4730 hectares.But as already noted, the average gross production a year of 506.96 kilos per
hectare fixed by Landbank is too low as compared to the Rodriguez case which was 1,061 kilos when
the coconut land in both cases are in the same town of Basud, Camarines Norte, compelling this court
then to adapt 1,061 kilos as the average gross production a year of the coconut land in this case.We
have to apply also the price of P9.70 per kilo as this is the value that Landbank fixed for this case.

The net income of the coconut land is equal to 70% of the gross income.So, the net income of the
coconut land is 1,061 x .70 x 9.70 equals P7,204.19 per hectare.Applying the capitalization formula
of R.A. 3844 to the net income of P7,204.19 divided by 6%, the legal rate of interest, equals P120,069.00
per hectare.Therefore, the just compensation for the 5.4730 hectares is P657,137.00.

The Riceland taken under Presidential Decree No. 27 as of October 21, 1972 has an area of .7600
hectare.If in the Rodriguez case the Landbank fixed the average gross production of 3000 kilos or 60
cavans of palay per year, then the .7600 hectare in this case would be 46 cavans.The value of the
riceland therefore in this case is 46 cavans x 2.5 x P400.00 equals P46,000.00.22 cralawred

PARC Resolution 94-24-1 of 25 October 1994, implemented by DAR AO 13, granted interest on the
compensation at 6% compounded annually. The compounded interest on the 46 cavans for 26 years is
199.33 cavans.At P400.00 per cavan, the value of the compounded interest is P79,732.00.23 (emphasis
added)

Well-settled is the rule that courts are not authorized to take judicial notice of the contents of the
records of other cases even when said cases have been tried or are pending in the same court or before
the same judge.24 They may only do so in the absence of objection and with the knowledge of the
opposing party,25 which are not obtaining here.

Furthermore, as earlier stated, the Rules of Court shall apply to all proceedings before the Special
Agrarian Courts.In this regard, Section 3, Rule 129 of the Revised Rules on Evidence is explicit on the
necessity of a hearing before a court takes judicial notice of a certain matter,
thus:chanroblesvirtua1awlibrary

178
SEC. 3.Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on
request of a party, may announce its intention to take judicial notice of any matter and allow the
parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of
a party, may take judicial notice of any matter and allow the parties to be heard thereon if such matter
is decisive of a material issue in the case.(emphasis added)

The RTC failed to observe the above provisions.

Lastly, the RTC erred in applying the formula prescribed under Executive Order (EO) No. 22826 and R.A.
No. 3844,27 as amended, in determining the valuation of the property; and in granting compounded
interest pursuant to DAR Administrative Order No. 13, Series of 1994.28 It must be stressed that EO No.
228 covers private agricultural lands primarily devoted to rice and corn, while R.A. 3844
governs agricultural leasehold relation between the person who furnishes the landholding, either as
owner, civil law lessee, usufructuary, or legal possessor, and the person who personally cultivates the
same.29 Here, the land is planted to coconut and rice and does not involve agricultural leasehold
relation.What the trial court should have applied is the formula in DAR Administrative Order No. 6, as
amended by DAR Administrative Order No. 11 discussed earlier.

As regards the award of compounded interest, suffice it to state that DAR Administrative Order No. 13,
Series of 1994 does not apply to the subject land but to those lands taken under Presidential Decree No.
2730 and Executive Order No. 228 whose owners have not been compensated.In this case, the property
is covered by R.A. 6657, as amended, and respondents have been paid the provisional compensation
thereof, as stipulated during the pre-trial.

While the determination of just compensation involves the exercise of judicial discretion, however, such
discretion must be discharged within the bounds of the law.Here, the RTC wantonly disregarded R.A.
6657, as amended, and its implementing rules and regulations. (DAR Administrative Order No. 6, as
amended by DAR Administrative Order No.11).

In sum, we find that the Court of Appeals and the RTC erred in determining the valuation of the subject
land.Thus, we deem it proper to remand this case to the RTC for trial on the merits wherein the parties
may present their respective evidence.In determining the valuation of the subject property, the trial
court shall consider the factors provided under Section 17 of R.A. 6657, as amended, mentioned
earlier.The formula prescribed by the DAR in Administrative Order No. 6, Series of 1992, as amended by
DAR Administrative Order No. 11, Series of 1994, shall be used in the valuation of the land.Furthermore,
upon its own initiative, or at the instance of any of the parties, the trial court may appoint one or more
commissioners to examine, investigate and ascertain facts relevant to the dispute.

WHEREFORE, the petition is GRANTED.The assailed Decision of the Court of Appeals dated March 20,
2000 in CA-G.R. SP No. 52163 is REVERSED.Civil Case No. 6806 is REMANDED to the RTC, Branch 40, Daet,
Camarines Norte, for trial on the merits with dispatch.The trial judge is directed to observe strictly the
procedures specified above in determining the proper valuation of the subject property.

SO ORDERED.

Panganiban, (Chairman), and Carpio-Morales, JJ., concur.

Corona, J., on leave.

G.R. No. L-31408 April 22, 1991

THE DIRECTOR OF LANDS, petitioner,

vs.
THE COURT OF APPEALS and BORROMEO BROS. ESTATE, INC., respondents.

Feliberto Leonardo and Benjamin S. Rallon for private respondent.

179
NARVASA, J.:

Whether the land in dispute was formed by the action of the sea or by deposits of soil and sedimentary
matter carried by river currents is the main issue in this case, which was elevated to the Court by
petition for review of a decision of the Court of Appeals.1

In October 1956 the corporation R. Borromeo Bros. Estate, Inc. instituted in the Court of First Instance of
Leyte original proceedings2 for confirmation and registration of title in its favor of a parcel of land
fronting the sea in the coastal town of San Isidro, Leyte with an area of 130,537 square meters. The
application3 alleged that the land was bounded on the North, East and South by property of the
applicant and on the West by San Isidro Bay; that it had been formed by accretion of sediments carried
from the highlands by the natural action of the Si-ong and Sinubdan Rivers when these overflowed their
banks during the rainy season;4 that it had been publicly, openly, continuously and adversely possessed
by the applicant for 20 years prior to the filing of the application; and that to the applicant's knowledge
there existed no mortgage, lien or other adverse claim on the land.5

Two oppositions to the application were filed. One, filed by the Director of Lands, asserted that the land
applied for was part of the public domain, and that the applicant or its predecessors-in-interest had no
sufficient title to the land, by way of either composition of possessory information, or by virtue of open,
public, adverse and continuous possession under claim of ownership since July 26, 1894.6

The other opposition, filed by the Municipality of San Isidro, echoed the contention of the Director of
Lands that the land formed part of the public domain, alleging that it was classified as Timber Block-J,
Leyte Project No. 40; denied the applicant's claim of open, adverse, continuous and exclusive possession
and averred that the land was occupied by other parties who had waived their claims in favor of said
oppositor; and alleged, further, that it (oppositor) needed the land for municipal expansion, having in
fact adopted resolutions requesting the Government to reserve the land for that purpose, and that the
applicant had applied for, but had been denied, a lease of the land after it had been released for private
occupation by the Bureau of Forestry.7

The case was then heard. It would appear that after the applicant had presented its evidence, it sought
and was allowed to amend its application, which originally alleged that the land applied for had been
formed of alluvium deposited by the action of the sea,8 in order to allege, as said appellant's evidence
had tended to establish, that said land had been formed instead from accretions of soil and sediment
carried from higher places by the currents of the Si-ong and Sinubdan Creeks.

Thereafter, evidence for the oppositors also having been presented, the Trial Court rendered judgment
denying the application and declaring the land applied for public land formed by the action of the sea
and not of any river.9 The applicant then appealed to the Court of Appeals, which reversed the decision
of the Trial Court, sustained the applicant's contention as to the origin of the land, on that basis declared
the land to be private land of said applicant and decreed its registration in the applicant's name.10

The Appellate Court's judgment was in turn appealed to this Court by the Director of Lands who, in the
main, argues that the Appellate Court erred in concluding that the evidence showed the land to have
been formed by the action of rivers and in not holding the applicant bound by the averment in its
original application that the land was formed by the natural action of the sea.11

The first assignment of error may be disposed of by the simple expedient of pointing out that the
assailed "conclusion" of the Court of Appeals is one of fact, not of law, and is, therefore, beyond the
province of this Court to review,12 save in certain exceptional circumstances.13

To dispel any doubts, however, and not to rely solely on what might appear to some to be a fine
distinction, particularly considering that the finding of the Court of Appeals on the crucial factual
question of how the land in dispute came into existence conflicts with that of the Trial Court, this Court

180
has reviewed the available record14 and finds no sound basis for ascribing any error to the Appellate
Court in its appreciation of the evidence.

The petitioner's case is anchored on evidence tending to establish that the Sinubdan and Si-ong Rivers
whose currents, according to the private respondent, formed the land in question from the sediments
they carried were not natural streams, but mere canals dug as part of an irrigation system; that they had
no intrinsic water sources and in fact dried up during the summer season; that a survey commissioned
by the petitioner itself in 1949 did not indicate their existence on the plan; and that part of the land is
swampy with mangrove trees growing thereon.15

More persuasive, however, is the countervailing evidence of the private respondent which consists,
principally, of the testimony of Felix Sablado, a bridge foreman of the Bureau of Public Highways, and
Teofilo Pacana, overseer of the petitioner's lands. According to the petitioner's uncontradicted summary
of Sablado's testimony, said witness had undertaken studies of the Sinubdan and Si-ong Rivers,
measuring their depth and width, the volume of water that they carried, and the size of the bridges
spanning them. He had declared the Si-ong was more than seven meters deep, while the Sinubdan had a
depth of more than three meters, that the Filemon Bridge crossing the Si-ong was seven meters long
and four meters wide and the Sinubdan Bridge had the same dimensions. And under cross-examination,
he had maintained that there is a source of water under the Filemon Bridge.16 Pacana, for his part,
testified that there is a continuous flow of water in both rivers throughout the year, and not merely
during the rainy season, as claimed by one of the oppositors' witnesses, and that while a few mangrove
trees grow in the salvage zone which is far from the land, none are found within the boundaries of the
land itself.17 This is at least partly confirmed by photographs received in evidence18 showing rice,
coconut trees and bamboo groves growing on the land, and which apparently persuaded the Trial Court
that at least a part of the land had been . . . transformed (through cultivation by the private respondent)
into a veritable first class rice land.19

The petitioner's argument that accretion, by definition imperceptible, could hardly account for such an
area of land (more than thirteen hectares) being built up within a period of six years, hinges upon an
unwarrantedly literal advertence to the testimony of one of the private respondent's witnesses who
declared that the process took place from 1930 to 1936.20 Assuming that the witness attested to what
he sincerely believed to be the truth, the possibility of his being mistaken cannot be discounted because,
the age of the rivers in question never having been established, the process of accretion through the
action of their currents could have started much earlier than 1930. It is also entirely possible –– and
reasonably presumable, lacking any proof to the contrary –– even granting that accretion started only in
1930, for the land to have grown to thirteen hectares in the twenty years that followed until 1956 when
the application for registration was filed.

The Court therefore finds no error in the ruling of the Court of Appeals that the land was formed by
accretion through the action of river currents and belonged to the private respondent as riparian owner
pursuant to Art. 457 of the Civil Code.1âwphi1

The Court of Appeals also correctly overruled the petitioner's contention that the averment in the
original application for registration attributing the origin of the land to the action of the sea, which
averment, with leave of court, was later superseded by an amendment to the effect that the land was
formed by the action of rivers, was binding on the private respondent as a judicial admission. Pleadings
that have been amended disappear from the record, lose their status as pleadings and cease to be
judicial admissions. While they may nonetheless be utilized against the pleader as extra-judicial
admissions, they must, in order to have such effect, be formally offered in evidence.21 It does not appear
that the original application for registration containing the averment in question, or that particular
averment itself, was offered or received in evidence for the petitioner in the Trial Court.

WHEREFORE, the Decision of the Court of Appeals subject of the petition for review is AFFIRMED,
without pronouncement as to costs.

SO ORDERED.

Cruz, Gancayo, Griño-Aquino and Medialdea, JJ., concur.

181
G.R. No. 144458 July 14, 2004

MERCURY DRUG CORPORATION, petitioner,

vs.
ATTY. RODRIGO B. LIBUNAO, respondent.

DECISION

CALLEJO, SR., J.:

This is a petition for review on certiorari of the Decision1 of the Court of Appeals in CA-G.R. CV No. 59754
which modified the Decision2 of the Regional Trial Court of Quezon City, Branch 97, in Civil Case No. Q-
92-14114 and the Resolution of the Court of Appeals dated August 9, 2000 denying petitioner's motion
for reconsideration.

On November 24, 1992, Atty. Rodrigo Libunao filed a complaint for damages with the Regional Trial
Court of Quezon City against the Mercury Drug Corporation; its President, Mariano Que; Store Manager,
Vilma Santos; and Security Guard Remigio Sido. The case was docketed as Civil Case No. Q-92-14114 and
raffled to Branch 97. The respondent prayed that after due hearing, judgment be rendered in his favor,
thus:

WHEREFORE, it is respectfully prayed that judgment be rendered:

1. Ordering defendants to, jointly and severally, pay plaintiff P1,000,000.00 in moral damages,
and P500,000.00 in exemplary damages;

2. Ordering defendants to, jointly and severally, reimburse plaintiff for his acceptance fee
expense in the amount of P50,000.00 and appearance fee expense at the rate of P1,000.00 per
appearance of undersigned counsel, and bear the cost of his attorney's fee in the amount
of P200,000.00.

3. Ordering defendants to, jointly and severally, bear the cost of the suit.3

In its Answer to the complaint, the defendant corporation mainly alleged that it was not Sido's employer,
and that the latter's direct employer was the security agency, the Black Shield Security Services
Corporation (BSSC); hence, Mercury Drug Corporation could not be held liable for the damages under
Article 2180 of the New Civil Code.

The Case for the Plaintiff

At about 8:00 p.m. on May 25, 1992, Atty. Rodrigo B. Libunao, a corporate lawyer of Caltex Philippines,
and his friend, Jesus Bustos Atencio, the Secretary of the Senate Committee on Government
Corporations, had dinner at the Robinson's Galleria along Ortigas Avenue, Pasig City. Afterwards, they
proceeded to the self-service section of the Mercury Drug Store where Libunao purchased some items,
including antibiotics. Libunao paid for his purchases and was issued a tape receipt[4] by the cashier, who
then placed the items inside the plastic bag. Libunao placed the receipt inside his pocket. As Libunao and
Atencio were exiting from the drugstore, they were accosted by Sido, the security guard posted at the
door. Sido was about 5 feet 5 inches tall, twenty pounds heavier than Libunao, and was armed with a
service gun. Sido held Libunao's upper right arm and demanded the latter to show the receipt for his
purchases, saying, "'Yong resibo niyan." Libunao searched for the receipt in his pocket, but it took him
some time to get hold of it because Sido was still holding his right arm. Sido then remarked, "Wala

182
yatang resibo yan!" Libunao was able to get hold of the receipt after about ten seconds and showed it to
Sido, close to the latter's face. Sido inspected the receipt, and Libunao asked, "Satisfied ka na?"
However, Sido angrily reacted and hurled invectives at Libunao: "Putang-ina mo!" Libunao retorted,
"Putang-ina mo!" Sido lunged at him and again said: "Putang-ina mo!" Atencio tried to pacify the two,
but Sido was able to hit Libunao on the face twice, on the nose, the chin and on the mouth. Sido then
pointed his revolver at Libunao and said: "Putang-ina mo, pag hindi kayo lumabas dito papuputukin'ko
to sa iyo!" A male person held Sido back. Afraid for his life, Libunao fled from the scene with Atencio and
went to the Office of the Security Detachment of the Robinson's Galleria. Libunao reported the incident
to the chief of security and asked him to arrest Sido. The chief of security accompanied Libunao back to
the Mercury Drug Store and approached the store manager, Vilma Santos. When informed of the
incident and of Sido's need to surrender, she said: "Ako ang manager dito, hindi ninyo puedeng
arestuhin ang security guard kasi on duty pa siya. Magsi-alis nga kayo dito mga buwisit kayo!" In the
meantime, a crowd started to gather when they noticed the commotion. Eventually, Santos relented
and surrendered Sido. While the chief of security, Libunao, Atencio and Sido were leaving, the sales
ladies of the store surrounded Sido and tried to protect him. The chief of security brought Sido to the
police station where a criminal complaint was filed against him by Libunao. Santos also arrived at the
police station.

Libunao was so traumatized by the incident, which was exacerbated as Sido went to his house twice to
apologize. Libunao had to consult a psychiatrist, Dr. Patalinghod of the Philippine General Hospital (PGH).
After several sessions, Dr. Patalinghod found him to be suffering from post-traumatic depression
syndrome.

The Case for the Defendants

Sido testified that he was employed as a security guard by the Black Shield Security Corporation and was
assigned at the Mercury Drug Store in Robinson's Galleria. At about 8:30 p.m. on May 25, 1992, he saw
Libunao and his companion exiting from the store. Libunao was holding a plastic bag, and Sido noticed
that no receipt was stapled thereto. He asked Libunao for the receipt, but the latter handed the bag to
him. Sido searched for the receipt in the bag, but failed to find any. He then asked the two men to go
back to the cashier to get a receipt. However, Libunao was able to bring out the receipt from his pocket
and angrily shoved it close to Sido's face. Sido explained to them that he was just doing his duty. Libunao
and his companion were about to leave, but Libunao said, "Baka hindi mo ako kilala, security guard ka
lang! Ano ba talaga ang problema mo?" Sido tried to explain, and in the process, a violent argument
ensued. A sales attendant of the store pacified them. The two men left, with a warning from Libunao,
"Be ready because I will come back." After about 15 minutes, Libunao returned with a security guard
from the Enriquez Agency and a man in civilian clothes, who turned out to be a policeman. The same
policeman asked Sido to go with him to the police station. He refused because he was still on duty.
When Santos saw the incident, she told Sido to go inside the store. But after talking to the policeman,
Santos relented and told Sido to go with them to the building security office. When confronted by the
security officer, Sido denied boxing Libunao and poking a gun at him. He was later brought to the police
station and placed in jail. Libunao approached him and said: "You see now how powerful I am?" Sido
also testified that a policeman later asked from him P2,000.00 so that he could get out of jail. He was
able to give only P1,500.00 which was his salary for that day. He was released from jail the next day at
4:00 p.m.

Santos testified that she was the Store Manager of the Mercury Drug Store at the Robinson's Galleria. At
about 8:30 p.m. on May 25, 1992, she was at the retail section of the store when her attention was
called by one of the pharmacy assistants, Geminiano de Leon, about an on-going altercation between
two men and the store security guard near the exit of the self-service section, which was about 15
meters away from where she was. When she rushed to the scene, Libunao and his companion were no
longer there. However, Libunao returned with two policemen from Quezon City who were in civilian
clothes, and informed her that they were going to arrest Sido. She told the policemen that they were
about to close the store and asked them if they could wait for about ten to fifteen minutes so that Sido
could help them close up. The policemen agreed, but Libunao objected and said that her refusal to
surrender Sido amounted to obstruction of justice. Sido was later brought to the security office of the
building and then taken to the police station.

183
Santos also testified that she accompanied Sido to the security office and to the police station. Libunao
told her that she should not have accompanied Sido because he was not an employee of the Mercury
Drug Corporation. She apologized to Libunao on behalf of Sido and told him that she had not expected
the altercation between the two of them. She testified that one of her duties as the store manager was
to prevent injuries to their customers, more so those caused by any of its employees. She also testified
that one of Sido's duties as their security guard was to open and close the store.

On April 18, 1997, the court rendered judgment in favor of the plaintiff and against the defendants, the
decretal portion of which reads:

WHEREFORE, in view of the foregoing consideration, judgment is hereby rendered by this Court
in favor of the Plaintiff and against the Defendants Remigio Sido, Mercury Drug Corporation, and
Vilma Santos, and said defendants are hereby ordered, as follows:

To pay to plaintiff, jointly and severally, by way of moral damages, the amount of P300,000.00,
by way of exemplary damages, the amount of P200,000.00 to discourage disrespect of the
public by such acts as were committed by defendants, plus attorney's fees of P50,000.00 and
costs of suit.

SO ORDERED.5

The court granted the motion for reconsideration filed by Store Manager Santos, and ordered the
dismissal of the complaint against her. It, however, denied the motion for reconsideration filed by the
defendant Corporation. Hence, the defendant Corporation appealed the decision to the Court of
Appeals contending that:

I. EVIDENCE ON RECORD CLEARLY SHOW (sic) THAT PLAINTIFF'S ALLEGATIONS AGAINST

DEFENDANT MERCURY DRUG IN HIS COMPLAINT HAS (sic) BEEN DISPROVED BY PLAINTIFF'S
OWN ADMISSION AND BY UNCONTROVERTED EVIDENCE.

II. THE TRIAL COURT ERRED IN HOLDING DEFENDANT MERCURY DRUG CORPORATION JOINTLY
AND SEVERALLY LIABLE WITH DEFENDANT SIDO FOR MORAL DAMAGES.

III. THE TRIAL COURT COMMITTED A REVERSIBLE ERROR IN HOLDING MERCURY DRUG JOINTLY
AND SEVERALLY LIABLE WITH DEFENDANT SIDO TO PAY PLAINTIFF-APPELLEE EXEMPLARY
DAMAGES. 6

On June 9, 2000, the Court of Appeals rendered judgment affirming with modification the decision of
the trial court, thus:

WHEREFORE, premises considered, the challenged decision of the trial court dated April 15,
1997 is AFFIRMED with the modification that the award of attorney's fees is DELETED, and the
moral and exemplary damages awarded are reduced from P300,000.00 to P150,000.00 and
from P200,000.00 to P100,000.00, respectively.

SO ORDERED.7

The appellate court ruled that Sido was an employee of the Mercury Drug Corporation, and that there
was no sufficient evidence to prove that he was an employee of BSSC. As such, it held that Mercury Drug
Corporation was, jointly and severally, liable with Sido for the latter's delictual and harmful acts.

The Present Petition

Mercury Drug filed the instant petition for review, asserting as follows:

1. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE

JUDICIAL ADMISSION OF PLAINTIFF-RESPONDENT RODRIGO LIBUNAO THAT REMIGIO SIDO IS

184
 NOT AN EMPLOYEE OF PETITIONER-DEFENDANT MERCURY DRUG CORPORATION AND IN
RULING CONTRARY TO SAID STIPULATION OF FACT OR JUDICIAL ADMISSION.

2. THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING A

DOCUMENTARY EVIDENCE WHICH WAS NOT QUESTIONED NOR CONTROVERTED AND IN
RULING CONTRARY TO THE EVIDENCE ON RECORD.

3. THE Court of appeals committed a grave abuse of discretion in holding petitioner liable for the
acts of the security guard under article 2181 (sic) of the new civil code.8

The petitioner contends that based on the evidence on record, Sido was not one of its employees, but
an employee of BSSC. As such, the Court of Appeals misapplied the last paragraph of Article 2180 of the
New Civil Code, and should have ruled in accordance with the ruling of this Court in Soliman, Jr. v. Court
of Appeals.9

In his Comment on the petition, the respondent sought the denial of the petition on the following
grounds: (a) the petition raises factual issues; (b) the petitioner failed to submit the appropriate
certification against forum shopping; and, (c) the Court of Appeals did not commit any reversible error in
holding the petitioner liable for damages for the tortious and delictual acts of Sido, over whose acts the
petitioner had direct control and supervision as employer.

The core issues for resolution are (a) whether the certification against forum shopping embedded in the
petition is sufficient compliance with Section 4, Rule 45 of the Rules of Court; (b) whether the remedy of
the petitioner is proper; and, (c) whether the petitioner is liable for damages to the respondent for the
tortious and delictual acts of Sido.

On the first issue, the respondent avers that the verification/certification against forum shopping
executed by the petitioner's in-house counsel and counsel of record, Atty. Joy Ann Marie C. Nolasco, is
insufficient. We reject the contention of the respondent. The assailed verification and certification
states that Atty. Joy Ann Marie C. Nolasco is the legal officer and/or in-house counsel of petitioner, as
well as its counsel of record in the above-entitled case, and is duly authorized to sign the said
verification and certification.10 As the petitioner's in-house counsel, she is the officer who is in the best
position to verify the truthfulness and the correctness of the allegations of the petition, and to
determine if a similar petition has been filed and is pending with other courts. In Robern Development
Corporation v. Quitain,11 we held that the certification executed by an in-house counsel is sufficient
compliance with the Rules:

In this case, the questioned verification stated that Atty. Cañete was the acting regional legal
counsel of NPC at the Mindanao Regional Center in Iligan City. He was not merely a retained
lawyer, but an NPC in-house counsel and officer, whose basic function was to prepare legal
pleadings and to represent NPC-Mindanao in legal cases. As regional legal counsel for the
Mindanao Area, he was the officer who was in the best position to verify the truthfulness and
the correctness of the allegations in the Complaint for expropriation in Davao City. As internal
legal counsel, he was also in the best position to know and to certify if an action for
expropriation had already been filed and pending with the courts.12

On the second issue, we rule that the remedy of the petitioner under Rule 45 of the Rules of Court is
proper. While only questions of law may be raised in a petition for review under Rule 45 of the Rules of
Court, review may nevertheless be granted under certain exceptions, namely: (a) when the conclusion is
a finding grounded entirely on speculation, surmises, or conjectures; (b) when the inference made is
manifestly mistaken, absurd, or impossible; (c) where there is a grave abuse of discretion; (d) when the
judgment is based on a misapprehension of facts; (e) when the findings of fact are conflicting; (f) when
the Court of Appeals, in making its findings, went beyond the issue of the case and the same is contrary
to the admissions of both appellant and appellee; (g) when the findings of the Court of Appeals are
contrary to those of the trial court; (h) when the findings of fact are conclusions without citation of
specific evidence on which they are based; (i) when the facts set forth in the petition as well as in the
petitioner's main and reply briefs are not disputed by the respondents; (j) when the finding of fact of the
Court of Appeals is premised on the supposed absence of evidence but is contradicted by the evidence

185
on record; and (k) when the Court of Appeals manifestly overlooked certain relevant facts not disputed
by the parties and which, if properly considered, would justify a different conclusion.13

We have reviewed the records of the RTC and the Court of Appeals and found that there was a
misapprehension of certain facts; that findings contrary to the admissions of the parties and the
evidence on record were made; and that the said courts overlooked certain relevant facts which were
not disputed by the parties, and, if properly considered, would necessarily have altered the decision
arrived at by both courts.

Based on the evidence on record, the petitioner was not Sido's employer; hence, the trial and appellate
courts erred in applying Article 2180 of the New Civil Code14 against the petitioner and holding it liable
for Sido's harmful acts.

First. The respondent was burdened to prove that the petitioner was the employer of Sido but failed to
discharge this burden.

Second. During the hearing in the trial court on August 17, 1994, the respondent's counsel of record,
Atty. Caesar J. Poblador, admitted that Sido was not employed by the petitioner:

ATTY. GENER, JR.:

Your Honor, since the cause of action of plaintiff is based on alleged negligence of the
company, we will prove deliligence (sic) of the company; and the part (sic) of Remigio
Sido that she (sic) was not an employee of the company so that she (sic) was not liable
of the complaint.

COURT:

Could the parties stipulate that he was not an employee of said company?

ATTY. POBLADOR:

We admit that she (sic) is not an employee of the company, Your Honor.

COURT:

There is no need to present her; they are admitting? Now, what are you going to
prove?15

It must be stressed that the stipulations of facts of the parties in the course of the proceedings are
conclusive upon them unless there is a showing that the parties committed a palpable mistake or that
no such admission was made by them.16

Third. Santos testified that Sido was not an employee of the petitioner, but of BSSC.

Q And referring to defendant Remigio Sido, who is his employer?

A Black Shield Agency, Sir.17

She also testified that the respondent even chided her in accompanying Sido to the police station, since
the latter was not an employee of the petitioner.

Q What happened at the Station No. 8?

A They talked with our security guard then Mr. Libunao told me, "Why did you go with them;
you should not go with them because that is an agency; they are not your employees."

Q And what did you say, if any, to Mr. Libunao?

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 A I apologized in (sic) behalf of our security guard; I told them that I did not expect these
things will happen.18

Indeed, the respondent does not deny the testimony of Santos.

Fourth. Sido testified that he was employed by BSSC as a security guard, which assigned him to the
Mercury Drug Store at Robinson's Galleria.

Q - On May 25, 1992, do you remember what was your work or employment, if any?

A - Yes, Sir.

Q - What was your employment?

A - As a Security Guard, Sir.

Q - And who was your employer?

A - Blackshield Security Agency, Sir.19

...

Q - And who assigned you there at that particular spot, Mercury Drugstore or Blackshield
Security Agency?

A - Blackshield Security Agency, Sir.

Q - I mean, the area that you are suppose (sic) to stand, who instructed you that?

A - The Blackshield Security Agency, Sir.20

Fifth. The petitioner adduced in evidence its contract with the BSSC, which contained the following
provisions:

1. THE AGENCY shall provide the CLIENT with the necessary number of armed, uniformed and
qualified security guards properly licensed by the Chief of Philippine Constabulary; who shall
provide security services to the CLIENT at its establishment at – SEE ATTACHED ANNEX A.

These security guards during the life of the Agreement shall be assigned in accordance with
arrangements to be made between the CLIENT and the AGENCY.

...

6. The AGENCY assumes full responsibility for any claim or cause of action which may accrue in
favor of any security guard by reason of employment with the AGENCY, it being understood that
security guards are employees of the AGENCY and not of the CLIENT.21

The records show that the respondent did not object to the admission of the contract which was offered
in evidence to prove that Sido was the employee of BSSC,22 and not of the petitioner.

On the third and last issue, it is thus evident that the respondent had no cause of action against the
petitioner for damages for Sido's illegal and harmful acts. The respondent should have sued Sido and the
BSSC for damages, conformably to Article 2180 of the New Civil Code.

In Soliman, Jr. v. Tuazon,23 we held that where the security agency recruits, hires and assigns the works
of its watchmen or security guards to a client, the employer of such guards or watchmen is such agency,
and not the client, since the latter has no hand in selecting the security guards. Thus, the duty to
observe the diligence of a good father of a family cannot be demanded from the said client:

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 ... [I]t is settled in our jurisdiction that where the security agency, as here, recruits, hires and
assigns the work of its watchmen or security guards, the agency is the employer of such guards
or watchmen. Liability for illegal or harmful acts committed by the security guards attaches to
the employer agency, and not to the clients or customers of such agency. As a general rule, a
client or customer of a security agency has no hand in selecting who among the pool of security
guards or watchmen employed by the agency shall be assigned to it; the duty to observe the
diligence of a good father of a family in the selection of the guards cannot, in the ordinary
course of events, be demanded from the client whose premises or property are protected by
the security guards.24

Indeed, the petitioner had assigned Sido to help the management open and close the door of the drug
store; inspect the bags of customers as they enter the store; and, check the receipts issued by the
cashier to said customers for their purchases. However, such circumstances do not automatically make
the security guard the employee of the petitioner, and, as such, liable for the guard's tortious acts. The
fact that a client company may give instructions or directions to the security guards assigned to it, does
not, by itself, render the client responsible as an employer of the security guards concerned and liable
for their wrongful acts or omissions.25

IN THE LIGHT OF ALL THE FOREGOING, the petition is hereby GRANTED. The Decision dated June 9,
2000 and the Resolution dated August 9, 2000 of the Court of Appeals in CA-G.R. CV No. 59754 are
hereby REVERSED and SET ASIDE. The complaint filed by the respondent against petitioner Mercury
Drug Corporation in Civil Case No. Q-92-14114 is DISMISSED. The counterclaims of the latter are also
DISMISSED. No costs.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

G.R. No. 139416 March 12, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNESTO HERMANES, accused-appellant.

MELO, J.:

Before us on automatic review is the decision rendered by the Regional Trial Court of the 8th Judicial
Region (Branch XXX, Basey, Samar) finding appellant Ernesto Hermanes guilty of the crime of rape and
imposing upon him the supreme penalty of death.

The conviction of appellant stemmed from an Information dated September 25, 1996 which reads:

That on or about the 2nd day of November, 1995 at about 10:00 o'clock in the evening, at Brgy.
Maligaya, Municipality of Sta. Rita, Province of Samar, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, by means of violence and intimidation, did,
then and there, willfully, unlawfully and feloniously succeed in having carnal knowledge without
the consent and against the will of the complainant MARINA HERMANES, inside her house, the
accused being her step-father, with threats of killing her and all members of her family.

CONTRARY TO LAW.

(p. 7, Rollo.)

At his arraignment, appellant pleaded not guilty. Thereupon, trial ensued.

The relevant facts as presented by the prosecution are faithfully summarized in the brief submitted by
the Solicitor General, to wit:

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 On or about November 2, 1995 at around ten o'clock in the evening, private complainant Marina
Hermanes, who at that time was ten (10) years old, was in the house shared by appellant
Ernesto Hermanes, her stepfather, and his wife Milagros (p. 6, TSN, July 22, 1997). Marina's
natural mother already died (p. 135, Records). Marina further declared that she has been living
with her stepfather, the appellant, and his wife Milagros since she was two (2) years old (p. 6,
TSN, July 22, 1997).

Marina was lying in her bedroom when appellant entered and undressed her. Appellant opened
his trousers, placed himself on top of private complainant, and successfully inserted his organ
("sili') into her vagina ("pipi"), Marina felt pain (p. 8, ibid.). Thereafter, appellant made a push
and pull motion for quite some time (p. 9, ibid.). Having satisfied himself, appellant stood up,
closed his trousers and left Marina alone to attend to his carabao (pp. 110-11, ibid.).1âwphi1.nêt

The following day at eight (8) o'clock in the morning, Marina proceeded to the house of Soltero
Salubre, a Kagawad of their barangay at that time, and told him that her father, Ernesto
Hermanes, raped her, and has raped her twice before the incident of November 2, 1995 (pp. 6,
12, TSN, January 14, 1998). Because of said complaint, Salubre brought Marina to the
Department of Social Welfare and Development (DSWD) Office in Sta. Rita, Samar (p. 9, ibid.).
Marina has since been in the custody of the DSWD Home for Girls (Abused) Children, Lingap
Center, Palo, Leyte (p. 5, TSN, July 22, 1997).

(pp. 4-5, Appellee's Brief.)

On November 4, 1995, or 2 days after the rape, Marina was physically examined by the Municipal Health
Officer of Sta. Rita, Dra. Rusela Grapa. Marina was found to have hymenal lacerations at the 3 and 7
o'clock positions, which, according to Dra. Grapa could have been caused by the insertion of male organ
(tsn, November 11, 1996, p. 5). Moreover, on direct examination, Dra. Grapa testified that these
lacerations were "fresh."

Q: When you examined the patient, what was then the nature of the lacerations? New or
healing?
A: It was a fresh healing laceration. It was fresh but starting to heal.

Q: If these lacerations were fresh but healing, can you estimate the time of the incident?
A: Yes.

Q: And from your day of examination, when could have the incident happened?
A: Between 24 to 48 hours.

Q: This laceration, was this caused by sexual intercourse?

A: Yes.

(tsn, August 14, 1997, p. 10-11.)

As the prosecution was about to call its last witness on January 14, 1998, appellant, through counsel,
manifested his desire to withdraw his previous plea of not guilty and to change the same to a plea of
guilty. The trial court allowed him to do so. Thus, appellant was re-arraigned and, with the aid of his
counsel, he subsequently pleaded guilty to the crime charged (Record, p. 86).

The change in plea notwithstanding, the prosecution continued with the presentation of its last witness
in order to establish appellant's guilt and precise degree of culpability (ibid.).

Thereafter, on July 14, 1998, appellant, through new counsel Atty. Mario Nicolasora, filed a
manifestation in court denying that he wanted to change his original plea of not guilty to guilty.
Consequently, the trial court ordered the withdrawal of appellant's earlier plea of guilty and the
reversion of his plea to not guilty (ibid., p. 104).

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At the subsequent hearing set on August 12, 1998, the defense was to present appellant as its witness.
Instead of so doing, Atty. Nicolasora asked that the presentation of evidence for the defense be
deferred and that appellant be allowed to prove intoxication, degree of instruction and education, and
the lack of intent to do so grave a wrong as that committed, in order to mitigate his liability, all for the
purpose of convincing the trial court to recommend to the Office of the President the grant of executive
clemency (ibid., p. 107).

On August 14, 1998, appellant, through counsel, filed a manifestation admitting responsibility for the
November 2, 1995 rape, and asked for forgiveness from complainant and the public in general. Likewise,
appellant manifested that he would present evidence to prove certain mitigating circumstances in his
favor and reiterated his request for the trial court to recommend executive clemency (ibid., p. 108).

However, despite having been given ample opportunity to prove supposed mitigating circumstances,
appellant inexplicably defaulted thereat, and given the long delay that had attended the hearing of the
case for the defense, the trial court was constrained, on December 21, 1998, to consider the defense as
having waived its right to present evidence. The case was thus considered submitted for final resolution.

On March 19, 1999, the trial court rendered its decision convicting appellant. The dispositive part of the
decision states:

IN VIEW OF THE FOREGOING, finding the accused Guilty beyond reasonable doubt of the
heinous crime of raping his own 10-year-old stepdaughter Marina Hermanes through the
conclusive evidences presented by the prosecution as well as his admission of the same through
his counsel, he is hereby sentenced to suffer the extreme penalty of DEATH. However, taking
into consideration the underlying circumstances herein as above pointed out, the Court hereby
recommends the granting of Executive Clemency to the said accused.

Upon promulgation of the above, let the record herein be forwarded to the Honorable Supreme
Court for automatic review.

SO ORDERED.

(pp. 23-24, Rollo.)

Appellant assails the trial court on the sole issue of the imposition of the penalty of death.

The case being one on automatic review, the Court undertook an examination and scrutiny of the
evidentiary record, and on the basis thereof, it now affirms the trial court's finding of guilt.

The prevailing rule is that the testimony of rape victims who are young and immature deserves full
credence (People vs. Bernaldez, 294 SCRA 317 [1998]). The Court's attention has not been called to any
dubious reason or improper motive on the part of Marina that would have impelled her to charge and
testify falsely against appellant in regard to so heinous a crime as rape. Where no compelling and cogent
reason is established that would explain why the complainant was so driven as to blindly implicate an
accused, the testimony of a young girl of having been the victim of a sexual assault cannot be discarded
(People vs. Abella, 315 SCRA 36 [1999]).

The evidence establishes beyond reasonable doubt the guilt of appellant. The testimony of complainant
is plain, straightforward, and positive. With clarity and candor, complainant recounted the manner in
which she was raped by appellant, viz:

Q: Okey, do you recall where were you on November 2, 1995 at about 10:00 o'clock in the
evening?
A: Yes, sir.

Q: Where were you then, if you can recall?

A: I was in the house.

190
Q: And where is this house of yours located that you are referring to?
A: Brgy. Maligaya, Sta. Rita, Samar.

xxx xxx xxx

Q: While you were there in your house that evening do you recall of any incident that
occurred to you?
A: Yes, sir.

Q: And what is this incident that occurred to you?

A: That night I was undressed.

Q: By whom were you undressed?

A: Ernesto Hermanes.

Q: Where were you then particularly inside the house when you were undressed?
A: I was in the bedroom.

Q: How did Ernesto Hermanes undress you?

A: He placed himself on top of me.

Q: What were you wearing then if you can recall?

A: I was wearing a dress.

Q: After this Ernesto Hermanes undressed you and placed himself on top of you, what did he
do to you next?
A: He sexually abused me.

Q: By sexual abuse, what did he actually do to you?

A: He placed his sili (organ) inside my pipi (vagina).

Q: Do you know where is your pipi?

A: Here (Witness pointing between her legs).

Q: When Ernesto Hermanes put inside his organ to your organ, what did you feel?
A: It was very painful.

Q: Do you know what do you mean by sili?

A: Yes, sir.

xxx xxx xxx

Q: When his penis was already inside your vagina, what did Ernesto Hermanes do to you?
A: He did it again.

Q: What do you mean by saying, he did it again?

A: I do not know how to call it.

Q: As you were feeling the pain, what did you do next if any?
A: (No answer)

Q: For how long did he place his penis inside your vagina?
A: It was 9:00 o'clock in the evening.

Q: Was the penis of Ernesto Hermanes inside your vagina long?

A: Yes, sir.

191
 Q: Did he make any movement of his penis while it was inside your vagina?
A: Yes, sir.

Q: How?
A: (He was making a push and pull motion as witness indicated).

Q: How many times did Ernesto Hermanes do this sexual abuse to you during that evening?
A: One.

(tsn, July 22, 1997, p. 6-10.)

Prescinding from the above, and on the basis of the manifestation filed by Atty. Nicolasora on August 14,
1998, the trial court observed that appellant admitted having raped his stepdaughter, stating that "it is
only in this case now that the accused herein Ernesto Hermanes has admitted guilt, manifesting his
desire to ask for forgiveness, and had practically and wholly submitted himself to the discretion and
compassion of this Court (Decision, p. 10)." Said manifestation, states in part:

1. That after an exhausting conference with the accused, the latter informed the undersigned
that he cannot bear his conscience and he would like to state completely in court the actual
circumstances of the rape that transpired on November 2, 1995 at about 10:00 o'clock in the
evening at Barangay Maligaya, Sta. Rita, Samar;

xxx xxx xxx

3. That he is now remorseful and he believes that by completely stating the truth he may be
forgiven by his foster daughter, Marina Hermanes (rape victim), his spouse and the public in
general;

4. That the gist of the would be testimony of the accused would show that during the rape
incident he was heavily intoxicated and he and his foster daughter, Marina Hermanes, were
alone at their residence;

5. That he will present the following mitigating circumstances in his favor, as follows: (a)
intoxication; (b) plea of guilty; (c) the degree of instruction and education of the offender; and
(d) that he had no intention to commit so grave a wrong as that committed.

6. That he plead for the mercy and compassion of the Honorable Court that in the event the
penalty prescribed by law be meted against him, he respectfully pleads to this court that it
recommends executive clemency for his behalf.

A perusal of the manifestation filed by Atty. Nicolasora on behalf of appellant shows that it was signed
only by Atty. Nicolasora, not by appellant. While we stated in People vs. Balisoro (307 SCRA 48 [1999])
that an admission made in the pleadings cannot be controverted by the party making such admission
and that the same is conclusive as to him, it is also hornbook doctrine that the authority of an attorney
to bind his client as to any admission of facts made by him is limited to matters of judicial procedure. An
admission which operates as a waiver, surrender, or destruction of the client's cause is beyond the
scope of the attorney's implied authority (People vs. Maceda, 73 Phil. 679 [1942]). In this case, Atty.
Nicolasora's admission that appellant was heavily intoxicated at the time of the incident and that he had
no intention to commit so grave a wrong as that committed practically frittered away appellant's case in
favor of the prosecution. The manifestation cannot thus be held as an admission by appellant of his guilt.

The inadmissibility of Atty. Nicolasora's manifestation notwithstanding, appellant nonetheless is still

criminally liable for the rape of Marina Hermanes. While appellant is not bound by the manifestation of
guilt filed by Atty. Nicolasora, he is still bound by the decision of the trial court to consider the case
submitted for decision due to the inordinate delay and failure of his counsel to present evidence on his
behalf. It must be noted that the prosecution completed the presentation of its evidence on January 14,
1998, and that the defense was given numerous opportunities to present evidence but, for almost one
year, and despite several warnings to that effect, they failed to do so, so much so that the trial court, on

192
December 21, 1998, was constrained to consider the case submitted for decision. A client is bound by an
adverse decision rendered as a result of his attorney's inaction or negligence, such as failure to present
sufficient evidence. The reason for this is that the adverse judgment is a mere consequence of an
omission on a procedural matter in regard to which an attorney has the implied authority to bind his
client. Too, the prosecution has more than sufficiently proven appellant's guilt beyond reasonable
doubt.1âwphi1.nêt

Appellant, however, is correct in his sole submission that he does not deserve the death penalty.

The crime of rape is punished under Article 335 of the Revised Penal Code, as amended by Section 11 of
Republic Act No. 7659 which pertinently reads:

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

x x x

x x x

x x x

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the
common-law spouse of the parent of the victim.

x x x

x x x

x x x

Summarizing the recent rulings of the Court under the aforequoted provision (People vs. Lomibao, 337
SCRA 211 [2000]; People vs. Acala, 307 SCRA 330 [1999]; People vs. Maglente, 306 SCRA 546 [1999]), the
concurrence of the minority of the victim and her relationship to the offender constitute special
qualifying circumstances and both factors must be alleged and proved with certainty, otherwise, the
death penalty cannot be imposed. In the present case, while the information did state that appellant is
the stepfather of the complainant, it, however, failed to mention that complainant was under 18 years
of age at the time of the commission of the offense. As such, the charge of rape in the information is not
in its qualified form so as to fall under the special qualifying circumstances stated in Section 11 of
Republic Act No. 7659. Verily, the information's failure to allege the minority of the victim cancels out
the imposition of the death penalty.

In addition to the failure of the information to allege the minority of the complainant, appellant also
claims that the trial court erred in imposing the death penalty allegedly because the step-father and
step-daughter relationship between appellant and the victim was never conclusively established. We
deem it unnecessary to discuss this particular argument in view of the previous disquisition that the
death penalty cannot be imposed for failure of the information to allege the minority of the complainant.
There being no allegation of the minority of the victim in the indictment under which appellant was
arraigned, he cannot be convicted of qualified rape as he was not properly informed that he is being
accused of qualified rape. Appellant's conviction of qualified rape violates his constitutional right to be
properly informed of the nature and cause of accusation against him. Having been apprised only of the
elements of simple rape, which crime was duly established by the prosecution, appellant can be
convicted only for such crime and accordingly should be sentenced to reclusion perpetua.

As to the damages, the trial court failed to award civil indemnity in favor of private complainant.
Inasmuch as the death penalty is not imposable in this case due to the deficiency in the allegations of
the information against appellant, private complainant is only entitled to P50,000.00 as civil indemnity,

193
in accordance with current rulings (People vs. Bares, G.R. Nos. 137762-65, March 27, 2001; People vs.
Lomibao, supra).

Likewise, appellant is liable to pay the rape victim the amount of P50,000.00 as moral damages, which is
automatically granted in rape cases without need of pleading or proof of the basis thereof (People vs.
Alba, 305 SCRA 811 [1999]).

WHEREFORE, the decision under review is hereby affirmed with the modifications that (a) appellant is
found guilty beyond reasonable doubt only of the crime of simple rape, for which he is sentenced to
suffer the penalty of reclusion perpetua; (b) that appellant is ordered to pay the victim the amount of
Fifty Thousand (P50,000.00) Pesos as civil indemnity and Fifty Thousand (P50,000.00) Pesos as moral
damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Buena, Ynares-
Santiago, De Leon, Jr., Sandoval-Gutierrez, and Carpio, JJ., concur.

G.R. No. 152154 July 15, 2003

REPUBLIC OF THE PHILIPPINES, petitioner,

vs.
HONORABLE SANDIGANBAYAN (SPECIAL FIRST DIVISION), FERDINAND E. MARCOS (REPRESENTED BY
HIS ESTATE/HEIRS: IMELDA R. MARCOS, MARIA IMELDA [IMEE] MARCOS-MANOTOC, FERDINAND R.
MARCOS, JR. AND IRENE MARCOS-ARANETA) AND IMELDA ROMUALDEZ MARCOS, respondents.

CORONA, J.:

This is a petition for certiorari under Rule 65 of the Rules of Court seeking to (1) set aside the Resolution
dated January 31, 2002 issued by the Special First Division of the Sandiganbayan in Civil Case No. 0141
entitled Republic of the Philippines vs. Ferdinand E. Marcos, et. al., and (2) reinstate its earlier decision
dated September 19, 2000 which forfeited in favor of petitioner Republic of the Philippines (Republic)
the amount held in escrow in the Philippine National Bank (PNB) in the aggregate amount of
US$658,175,373.60 as of January 31, 2002.

BACKGROUND OF THE CASE

On December 17, 1991, petitioner Republic, through the Presidential Commission on Good Government
(PCGG), represented by the Office of the Solicitor General (OSG), filed a petition for forfeiture before the
Sandiganbayan, docketed as Civil Case No. 0141 entitled Republic of the Philippines vs. Ferdinand E.
Marcos, represented by his Estate/Heirs and Imelda R. Marcos, pursuant to RA 13791 in relation to
Executive Order Nos. 1,2 2,3 144 and 14-A.5

In said case, petitioner sought the declaration of the aggregate amount of US$356 million (now
estimated to be more than US$658 million inclusive of interest) deposited in escrow in the PNB, as ill-
gotten wealth. The funds were previously held by the following five account groups, using various
foreign foundations in certain Swiss banks:

(1) Azio-Verso-Vibur Foundation accounts;

(2) Xandy-Wintrop: Charis-Scolari-Valamo-Spinus- Avertina Foundation accounts;

(3) Trinidad-Rayby-Palmy Foundation accounts;

(4) Rosalys-Aguamina Foundation accounts and

(5) Maler Foundation accounts.

194
In addition, the petition sought the forfeiture of US$25 million and US$5 million in treasury notes which
exceeded the Marcos couple's salaries, other lawful income as well as income from legitimately acquired
property. The treasury notes are frozen at the Central Bank of the Philippines, now Bangko Sentral ng
Pilipinas, by virtue of the freeze order issued by the PCGG.

On October 18, 1993, respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and
Ferdinand R. Marcos, Jr. filed their answer.

Before the case was set for pre-trial, a General Agreement and the Supplemental Agreements6 dated
December 28, 1993 were executed by the Marcos children and then PCGG Chairman Magtanggol
Gunigundo for a global settlement of the assets of the Marcos family. Subsequently, respondent Marcos
children filed a motion dated December 7, 1995 for the approval of said agreements and for the
enforcement thereof.

The General Agreement/Supplemental Agreements sought to identify, collate, cause the inventory of
and distribute all assets presumed to be owned by the Marcos family under the conditions contained
therein. The aforementioned General Agreement specified in one of its premises or "whereas clauses"
the fact that petitioner "obtained a judgment from the Swiss Federal Tribunal on December 21, 1990,
that the Three Hundred Fifty-six Million U.S. dollars (US$356 million) belongs in principle to the Republic
of the Philippines provided certain conditionalities are met x x x." The said decision of the Swiss Federal
Supreme Court affirmed the decision of Zurich District Attorney Peter Consandey, granting petitioner's
request for legal assistance.7 Consandey declared the various deposits in the name of the enumerated
foundations to be of illegal provenance and ordered that they be frozen to await the final verdict in
favor of the parties entitled to restitution.

Hearings were conducted by the Sandiganbayan on the motion to approve the General/Supplemental
Agreements. Respondent Ferdinand, Jr. was presented as witness for the purpose of establishing the
partial implementation of said agreements.

On October 18, 1996, petitioner filed a motion for summary judgment and/or judgment on the
pleadings. Respondent Mrs. Marcos filed her opposition thereto which was later adopted by
respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.

In its resolution dated November 20, 1997, the Sandiganbayan denied petitioner's motion for summary
judgment and/or judgment on the pleadings on the ground that the motion to approve the compromise
agreement "(took) precedence over the motion for summary judgment."

Respondent Mrs. Marcos filed a manifestation on May 26, 1998 claiming she was not a party to the
motion for approval of the Compromise Agreement and that she owned 90% of the funds with the
remaining 10% belonging to the Marcos estate.

Meanwhile, on August 10, 1995, petitioner filed with the District Attorney in Zurich, Switzerland, an
additional request for the immediate transfer of the deposits to an escrow account in the PNB. The
request was granted. On appeal by the Marcoses, the Swiss Federal Supreme Court, in a decision dated
December 10, 1997, upheld the ruling of the District Attorney of Zurich granting the request for the
transfer of the funds. In 1998, the funds were remitted to the Philippines in escrow. Subsequently,
respondent Marcos children moved that the funds be placed in custodia legis because the deposit in
escrow in the PNB was allegedly in danger of dissipation by petitioner. The Sandiganbayan, in its
resolution dated September 8, 1998, granted the motion.

After the pre-trial and the issuance of the pre-trial order and supplemental pre-trial order dated October
28, 1999 and January 21, 2000, respectively, the case was set for trial. After several resettings, petitioner,
on March 10, 2000, filed another motion for summary judgment pertaining to the forfeiture of the
US$356 million, based on the following grounds:

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 THE ESSENTIAL FACTS WHICH WARRANT THE FORFEITURE OF THE FUNDS SUBJECT OF THE
PETITION UNDER R.A. NO. 1379 ARE ADMITTED BY RESPONDENTS IN THEIR PLEADINGS AND
OTHER SUBMISSIONS MADE IN THE COURSE OF THE PROCEEDING.

II

RESPONDENTS' ADMISSION MADE DURING THE PRE-TRIAL THAT THEY DO NOT HAVE ANY
INTEREST OR OWNERSHIP OVER THE FUNDS SUBJECT OF THE ACTION FOR FORFEITURE
TENDERS NO GENUINE ISSUE OR CONTROVERSY AS TO ANY MATERIAL FACT IN THE PRESENT
ACTION, THUS WARRANTING THE RENDITION OF SUMMARY JUDGMENT.8

Petitioner contended that, after the pre-trial conference, certain facts were established, warranting a
summary judgment on the funds sought to be forfeited.

Respondent Mrs. Marcos filed her opposition to the petitioner's motion for summary judgment, which
opposition was later adopted by her co-respondents Mrs. Manotoc, Mrs. Araneta and Ferdinand, Jr.

On March 24, 2000, a hearing on the motion for summary judgment was conducted.

In a decision9 dated September 19, 2000, the Sandiganbayan granted petitioner's motion for summary
judgment:

CONCLUSION

There is no issue of fact which calls for the presentation of evidence.

The Motion for Summary Judgment is hereby granted.

The Swiss deposits which were transmitted to and now held in escrow at the PNB are deemed
unlawfully acquired as ill-gotten wealth.

DISPOSITION

WHEREFORE, judgment is hereby rendered in favor of the Republic of the Philippines and
against the respondents, declaring the Swiss deposits which were transferred to and now
deposited in escrow at the Philippine National Bank in the total aggregate value equivalent to
US$627,608,544.95 as of August 31, 2000 together with the increments thereof forfeited in
favor of the State.10

Respondent Mrs. Marcos filed a motion for reconsideration dated September 26, 2000. Likewise, Mrs.
Manotoc and Ferdinand, Jr. filed their own motion for reconsideration dated October 5, 2000. Mrs.
Araneta filed a manifestation dated October 4, 2000 adopting the motion for reconsideration of Mrs.
Marcos, Mrs. Manotoc and Ferdinand, Jr.

Subsequently, petitioner filed its opposition thereto.

In a resolution11 dated January 31, 2002, the Sandiganbayan reversed its September 19, 2000 decision,
thus denying petitioner's motion for summary judgment:

CONCLUSION

In sum, the evidence offered for summary judgment of the case did not prove that the money in
the Swiss Banks belonged to the Marcos spouses because no legal proof exists in the record as
to the ownership by the Marcoses of the funds in escrow from the Swiss Banks.

The basis for the forfeiture in favor of the government cannot be deemed to have been
established and our judgment thereon, perforce, must also have been without basis.

196
 WHEREFORE, the decision of this Court dated September 19, 2000 is reconsidered and set aside,
and this case is now being set for further proceedings.12

Hence, the instant petition. In filing the same, petitioner argues that the Sandiganbayan, in reversing its
September 19, 2000 decision, committed grave abuse of discretion amounting to lack or excess of
jurisdiction considering that --

PETITIONER WAS ABLE TO PROVE ITS CASE IN ACCORDANCE WITH THE REQUISITES OF SECTIONS
2 AND 3 OF R.A. NO. 1379:

A. PRIVATE RESPONDENTS CATEGORICALLY ADMITTED NOT ONLY THE PERSONAL

CIRCUMSTANCES OF FERDINAND E. MARCOS AND IMELDA R. MARCOS AS PUBLIC
OFFICIALS BUT ALSO THE EXTENT OF THEIR SALARIES AS SUCH PUBLIC OFFICIALS, WHO
UNDER THE CONSTITUTION, WERE PROHIBITED FROM ENGAGING IN THE
MANAGEMENT OF FOUNDATIONS.

B. PRIVATE RESPONDENTS ALSO ADMITTED THE EXISTENCE OF THE SWISS DEPOSITS

AND THEIR OWNERSHIP THEREOF:

1. ADMISSIONS IN PRIVATE RESPONDENTS' ANSWER;

2. ADMISSION IN THE GENERAL / SUPPLEMENTAL AGREEMENTS THEY SIGNED

AND SOUGHT TO IMPLEMENT;

3. ADMISSION IN A MANIFESTATION OF PRIVATE RESPONDENT IMELDA R.

MARCOS AND IN THE MOTION TO PLACE THE RES IN CUSTODIA LEGIS; AND

4. ADMISSION IN THE UNDERTAKING TO PAY THE HUMAN RIGHTS VICTIMS.

C. PETITIONER HAS PROVED THE EXTENT OF THE LEGITIMATE INCOME OF FERDINAND E.

MARCOS AND IMELDA R. MARCOS AS PUBLIC OFFICIALS.

D. PETITIONER HAS ESTABLISHED A PRIMA FACIE PRESUMPTION OF UNLAWFULLY

ACQUIRED WEALTH.

II

SUMMARY JUDGMENT IS PROPER SINCE PRIVATE RESPONDENTS HAVE NOT RAISED ANY
GENUINE ISSUE OF FACT CONSIDERING THAT:

A. PRIVATE RESPONDENTS' DEFENSE THAT SWISS DEPOSITS WERE LAWFULLY ACQUIRED

DOES NOT ONLY FAIL TO TENDER AN ISSUE BUT IS CLEARLY A SHAM; AND

B. IN SUBSEQUENTLY DISCLAIMING OWNERSHIP OF THE SWISS DEPOSITS, PRIVATE

RESPONDENTS ABANDONED THEIR SHAM DEFENSE OF LEGITIMATE ACQUISITION, AND
THIS FURTHER JUSTIFIED THE RENDITION OF A SUMMARY JUDGMENT.

III

THE FOREIGN FOUNDATIONS NEED NOT BE IMPLEADED.

IV

THE HONORABLE PRESIDING JUSTICE COMMITTED GRAVE ABUSE OF DISCRETION IN REVERSING

HIMSELF ON THE GROUND THAT ORIGINAL COPIES OF THE AUTHENTICATED SWISS DECISIONS
AND THEIR "AUTHENTICATED TRANSLATIONS" HAVE NOT BEEN SUBMITTED TO THE COURT,

197
 WHEN EARLIER THE SANDIGANBAYAN HAS QUOTED EXTENSIVELY A PORTION OF THE
TRANSLATION OF ONE OF THESE SWISS DECISIONS IN HIS "PONENCIA" DATED JULY 29, 1999
WHEN IT DENIED THE MOTION TO RELEASE ONE HUNDRED FIFTY MILLION US DOLLARS
($150,000,000.00) TO THE HUMAN RIGHTS VICTIMS.

PRIVATE RESPONDENTS ARE DEEMED TO HAVE WAIVED THEIR OBJECTION TO THE

AUTHENTICITY OF THE SWISS FEDERAL SUPREME COURT DECISIONS.13

Petitioner, in the main, asserts that nowhere in the respondents' motions for reconsideration and
supplemental motion for reconsideration were the authenticity, accuracy and admissibility of the Swiss
decisions ever challenged. Otherwise stated, it was incorrect for the Sandiganbayan to use the issue of
lack of authenticated translations of the decisions of the Swiss Federal Supreme Court as the basis for
reversing itself because respondents themselves never raised this issue in their motions for
reconsideration and supplemental motion for reconsideration. Furthermore, this particular issue
relating to the translation of the Swiss court decisions could not be resurrected anymore because said
decisions had been previously utilized by the Sandiganbayan itself in resolving a "decisive issue" before
it.

Petitioner faults the Sandiganbayan for questioning the non-production of the authenticated
translations of the Swiss Federal Supreme Court decisions as this was a marginal and technical matter
that did not diminish by any measure the conclusiveness and strength of what had been proven and
admitted before the Sandiganbayan, that is, that the funds deposited by the Marcoses constituted ill-
gotten wealth and thus belonged to the Filipino people.

In compliance with the order of this Court, Mrs. Marcos filed her comment to the petition on May 22,
2002. After several motions for extension which were all granted, the comment of Mrs. Manotoc and
Ferdinand, Jr. and the separate comment of Mrs. Araneta were filed on May 27, 2002.

Mrs. Marcos asserts that the petition should be denied on the following grounds:

A.

PETITIONER HAS A PLAIN, SPEEDY, AND ADEQUATE REMEDY AT THE SANDIGANBAYAN.

B.

THE SANDIGANBAYAN DID NOT ABUSE ITS DISCRETION IN SETTING THE CASE FOR FURTHER
PROCEEDINGS.14

Mrs. Marcos contends that petitioner has a plain, speedy and adequate remedy in the ordinary course
of law in view of the resolution of the Sandiganbayan dated January 31, 2000 directing petitioner to
submit the authenticated translations of the Swiss decisions. Instead of availing of said remedy,
petitioner now elevates the matter to this Court. According to Mrs. Marcos, a petition for certiorari
which does not comply with the requirements of the rules may be dismissed. Since petitioner has a plain,
speedy and adequate remedy, that is, to proceed to trial and submit authenticated translations of the
Swiss decisions, its petition before this Court must be dismissed. Corollarily, the Sandiganbayan's ruling
to set the case for further proceedings cannot and should not be considered a capricious and whimsical
exercise of judgment.

Likewise, Mrs. Manotoc and Ferdinand, Jr., in their comment, prayed for the dismissal of the petition on
the grounds that:

(A)

BY THE TIME PETITIONER FILED ITS MOTION FOR SUMMARY JUDGMENT ON 10 MARCH 2000, IT
WAS ALREADY BARRED FROM DOING SO.

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(1) The Motion for Summary Judgment was based on private respondents' Answer and other
documents that had long been in the records of the case. Thus, by the time the Motion was filed
on 10 March 2000, estoppel by laches had already set in against petitioner.

(2) By its positive acts and express admissions prior to filing the Motion for Summary Judgment
on 10 March 1990, petitioner had legally bound itself to go to trial on the basis of existing issues.
Thus, it clearly waived whatever right it had to move for summary judgment.

(B)

EVEN ASSUMING THAT PETITIONER WAS NOT LEGALLY BARRED FROM FILING THE MOTION FOR
SUMMARY JUDGMENT, THE SANDIGANBAYAN IS CORRECT IN RULING THAT PETITIONER HAS
NOT YET ESTABLISHED A PRIMA FACIE CASE FOR THE FORFEITURE OF THE SWISS FUNDS.

(1) Republic Act No. 1379, the applicable law, is a penal statute. As such, its provisions,
particularly the essential elements stated in section 3 thereof, are mandatory in nature. These
should be strictly construed against petitioner and liberally in favor of private respondents.

(2) Petitioner has failed to establish the third and fourth essential elements in Section 3 of R.A.
1379 with respect to the identification, ownership, and approximate amount of the property
which the Marcos couple allegedly "acquired during their incumbency".

(a) Petitioner has failed to prove that the Marcos couple "acquired" or own the Swiss
funds.

(b) Even assuming, for the sake of argument, that the fact of acquisition has been
proven, petitioner has categorically admitted that it has no evidence showing how much
of the Swiss funds was acquired "during the incumbency" of the Marcos couple from 31
December 1965 to 25 February 1986.

(3) In contravention of the essential element stated in Section 3 (e) of R.A. 1379,
petitioner has failed to establish the other proper earnings and income from
legitimately acquired property of the Marcos couple over and above their government
salaries.

(4) Since petitioner failed to prove the three essential elements provided in paragraphs
(c)15 (d),16 and (e)17 of Section 3, R.A. 1379, the inescapable conclusion is that the prima facie
presumption of unlawful acquisition of the Swiss funds has not yet attached. There can,
therefore, be no premature forfeiture of the funds.

(C)

IT WAS ONLY BY ARBITRARILY ISOLATING AND THEN TAKING CERTAIN STATEMENTS MADE BY
PRIVATE RESPONDENTS OUT OF CONTEXT THAT PETITIONER WAS ABLE TO TREAT THESE AS
"JUDICIAL ADMISSIONS" SUFFICIENT TO ESTABLISH A PRIMA FACIE AND THEREAFTER A
CONCLUSIVE CASE TO JUSTIFY THE FORFEITURE OF THE SWISS FUNDS.

(1) Under Section 27, Rule 130 of the Rules of Court, the General and Supplemental Agreements,
as well as the other written and testimonial statements submitted in relation thereto, are
expressly barred from being admissible in evidence against private respondents.

(2) Had petitioner bothered to weigh the alleged admissions together with the other statements
on record, there would be a demonstrable showing that no such "judicial admissions" were
made by private respondents.

(D)

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 SINCE PETITIONER HAS NOT (YET) PROVEN ALL THE ESSENTIAL ELEMENTS TO ESTABLISH A
PRIMA FACIE CASE FOR FORFEITURE, AND PRIVATE RESPONDENTS HAVE NOT MADE ANY
JUDICIAL ADMISSION THAT WOULD HAVE FREED IT FROM ITS BURDEN OF PROOF, THE
SANDIGANBAYAN DID NOT COMMIT GRAVE ABUSE OF DISCRETION IN DENYING THE MOTION
FOR SUMMARY JUDGMENT. CERTIORARI, THEREFORE, DOES NOT LIE, ESPECIALLY AS THIS
COURT IS NOT A TRIER OF FACTS.18

For her part, Mrs. Araneta, in her comment to the petition, claims that obviously petitioner is unable to
comply with a very plain requirement of respondent Sandiganbayan. The instant petition is allegedly an
attempt to elevate to this Court matters, issues and incidents which should be properly threshed out at
the Sandiganbayan. To respondent Mrs. Araneta, all other matters, save that pertaining to the
authentication of the translated Swiss Court decisions, are irrelevant and impertinent as far as this Court
is concerned. Respondent Mrs. Araneta manifests that she is as eager as respondent Sandiganbayan or
any interested person to have the Swiss Court decisions officially translated in our known language. She
says the authenticated official English version of the Swiss Court decisions should be presented. This
should stop all speculations on what indeed is contained therein. Thus, respondent Mrs. Araneta prays
that the petition be denied for lack of merit and for raising matters which, in elaborated fashion, are
impertinent and improper before this Court.

PROPRIETY OF PETITIONER'S ACTION FOR CERTIORARI

But before this Court discusses the more relevant issues, the question regarding the propriety of
petitioner Republic's action for certiorari under Rule 6519 of the 1997 Rules of Civil Procedure assailing
the Sandiganbayan Resolution dated January 21, 2002 should be threshed out.

At the outset, we would like to stress that we are treating this case as an exception to the general rule
governing petitions for certiorari. Normally, decisions of the Sandiganbayan are brought before this
Court under Rule 45, not Rule 65.20 But where the case is undeniably ingrained with immense public
interest, public policy and deep historical repercussions, certiorari is allowed notwithstanding the
existence and availability of the remedy of appeal.21

One of the foremost concerns of the Aquino Government in February 1986 was the recovery of the
unexplained or ill-gotten wealth reputedly amassed by former President and Mrs. Ferdinand E. Marcos,
their relatives, friends and business associates. Thus, the very first Executive Order (EO) issued by then
President Corazon Aquino upon her assumption to office after the ouster of the Marcoses was EO No. 1,
issued on February 28, 1986. It created the Presidential Commission on Good Government (PCGG) and
charged it with the task of assisting the President in the "recovery of all ill-gotten wealth accumulated by
former President Ferdinand E. Marcos, his immediate family, relatives, subordinates and close
associates, whether located in the Philippines or abroad, including the takeover or sequestration of all
business enterprises and entities owned or controlled by them during his administration, directly or
through nominees, by taking undue advantage of their public office and/or using their powers, authority,
influence, connections or relationship." The urgency of this undertaking was tersely described by this
Court in Republic vs. Lobregat22:

surely x x x an enterprise "of great pith and moment"; it was attended by "great expectations"; it
was initiated not only out of considerations of simple justice but also out of sheer necessity - the
national coffers were empty, or nearly so.

In all the alleged ill-gotten wealth cases filed by the PCGG, this Court has seen fit to set aside
technicalities and formalities that merely serve to delay or impede judicious resolution. This
Court prefers to have such cases resolved on the merits at the Sandiganbayan. But substantial
justice to the Filipino people and to all parties concerned, not mere legalisms or perfection of
form, should now be relentlessly and firmly pursued. Almost two decades have passed since the
government initiated its search for and reversion of such ill-gotten wealth. The definitive
resolution of such cases on the merits is thus long overdue. If there is proof of illegal acquisition,
accumulation, misappropriation, fraud or illicit conduct, let it be brought out now. Let the
ownership of these funds and other assets be finally determined and resolved with dispatch,
free from all the delaying technicalities and annoying procedural sidetracks.23

200
We thus take cognizance of this case and settle with finality all the issues therein.

ISSUES BEFORE THIS COURT

The crucial issues which this Court must resolve are: (1) whether or not respondents raised any genuine
issue of fact which would either justify or negate summary judgment; and (2) whether or not petitioner
Republic was able to prove its case for forfeiture in accordance with Sections 2 and 3 of RA 1379.

(1) THE PROPRIETY OF SUMMARY JUDGMENT

We hold that respondent Marcoses failed to raise any genuine issue of fact in their pleadings. Thus, on
motion of petitioner Republic, summary judgment should take place as a matter of right.

In the early case of Auman vs. Estenzo24, summary judgment was described as a judgment which a court
may render before trial but after both parties have pleaded. It is ordered by the court upon application
by one party, supported by affidavits, depositions or other documents, with notice upon the adverse
party who may in turn file an opposition supported also by affidavits, depositions or other documents.
This is after the court summarily hears both parties with their respective proofs and finds that there is
no genuine issue between them. Summary judgment is sanctioned in this jurisdiction by Section 1, Rule
35 of the 1997 Rules of Civil Procedure:

SECTION 1. Summary judgment for claimant.- A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the pleading
in answer thereto has been served, move with supporting affidavits, depositions or admissions
for a summary judgment in his favor upon all or any part thereof.25

Summary judgment is proper when there is clearly no genuine issue as to any material fact in the
action.26 The theory of summary judgment is that, although an answer may on its face appear to tender
issues requiring trial, if it is demonstrated by affidavits, depositions or admissions that those issues are
not genuine but sham or fictitious, the Court is justified in dispensing with the trial and rendering
summary judgment for petitioner Republic.

The Solicitor General made a very thorough presentation of its case for forfeiture:

xxx

4. Respondent Ferdinand E. Marcos (now deceased and represented by his Estate/Heirs) was a
public officer for several decades continuously and without interruption as Congressman,
Senator, Senate President and President of the Republic of the Philippines from December 31,
1965 up to his ouster by direct action of the people of EDSA on February 22-25, 1986.

5. Respondent Imelda Romualdez Marcos (Imelda, for short) the former First Lady who ruled
with FM during the 14-year martial law regime, occupied the position of Minister of Human
Settlements from June 1976 up to the peaceful revolution in February 22-25, 1986. She likewise
served once as a member of the Interim Batasang Pambansa during the early years of martial
law from 1978 to 1984 and as Metro Manila Governor in concurrent capacity as Minister of
Human Settlements. x x x

xxx xxx xxx

11. At the outset, however, it must be pointed out that based on the Official Report of the
Minister of Budget, the total salaries of former President Marcos as President form 1966 to
1976 was P60,000 a year and from 1977 to 1985, P100,000 a year; while that of the former First
Lady, Imelda R. Marcos, as Minister of Human Settlements from June 1976 to February 22-25,
1986 was P75,000 a year xxx.

ANALYSIS OF RESPONDENTS LEGITIMATE INCOME

201
xxx

12. Based on available documents, the ITRs of the Marcoses for the years 1965-1975 were filed
under Tax Identification No. 1365-055-1. For the years 1976 until 1984, the returns were filed
under Tax Identification No. M 6221-J 1117-A-9.

13. The data contained in the ITRs and Balance Sheet filed by the "Marcoses are summarized
and attached to the reports in the following schedules:

Schedule A:

Schedule of Income (Annex "T" hereof);

Schedule B:

Schedule of Income Tax Paid (Annex "T-1" hereof);

Schedule C:

Schedule of Net Disposable Income (Annex "T-2" hereof);

Schedule D:

Schedule of Networth Analysis (Annex "T-3" hereof).

14. As summarized in Schedule A (Annex "T" hereof), the Marcoses reported P16,408,442.00 or
US$2,414,484.91 in total income over a period of 20 years from 1965 to 1984. The sources of
income are as follows:

Official Salaries - P 2,627,581.00 - 16.01%

Legal Practice - 11,109,836.00 - 67.71%
Farm Income - 149,700.00 - .91%
Others - 2,521,325.00 - 15.37%
Total P16,408,442.00 - 100.00%

15. FM's official salary pertains to his compensation as Senate President in 1965 in the amount
of P15,935.00 and P1,420,000.00 as President of the Philippines during the period 1966 until
1984. On the other hand, Imelda reported salaries and allowances only for the years 1979 to
1984 in the amount of P1,191,646.00. The records indicate that the reported income came from
her salary from the Ministry of Human Settlements and allowances from Food Terminal, Inc.,
National Home Mortgage Finance Corporation, National Food Authority Council, Light Rail
Transit Authority and Home Development Mutual Fund.

16. Of the P11,109,836.00 in reported income from legal practice, the amount of
P10,649,836.00 or 96% represents "receivables from prior years" during the period 1967 up to
1984.

17. In the guise of reporting income using the cash method under Section 38 of the National
Internal Revenue Code, FM made it appear that he had an extremely profitable legal practice
before he became a President (FM being barred by law from practicing his law profession during
his entire presidency) and that, incredibly, he was still receiving payments almost 20 years after.
The only problem is that in his Balance Sheet attached to his 1965 ITR immediately preceeding
his ascendancy to the presidency he did not show any Receivables from client at all, much less
the P10,65-M that he decided to later recognize as income. There are no documents showing
any withholding tax certificates. Likewise, there is nothing on record that will show any known
Marcos client as he has no known law office. As previously stated, his networth was a mere

202
P120,000.00 in December, 1965. The joint income tax returns of FM and Imelda cannot,
therefore, conceal the skeletons of their kleptocracy.

18. FM reported a total of P2,521,325.00 as Other Income for the years 1972 up to 1976 which
he referred to in his return as "Miscellaneous Items" and "Various Corporations." There is no
indication of any payor of the dividends or earnings.

19. Spouses Ferdinand and Imelda did not declare any income from any deposits and
placements which are subject to a 5% withholding tax. The Bureau of Internal Revenue attested
that after a diligent search of pertinent records on file with the Records Division, they did not
find any records involving the tax transactions of spouses Ferdinand and Imelda in Revenue
Region No. 1, Baguio City, Revenue Region No.4A, Manila, Revenue Region No. 4B1, Quezon City
and Revenue No. 8, Tacloban, Leyte. Likewise, the Office of the Revenue Collector of Batac.
Further, BIR attested that no records were found on any filing of capital gains tax return
involving spouses FM and Imelda covering the years 1960 to 1965.

20. In Schedule B, the taxable reported income over the twenty-year period was P14,463,595.00
which represents 88% of the gross income. The Marcoses paid income taxes totaling
P8,233,296.00 or US$1,220,667.59. The business expenses in the amount of P861,748.00
represent expenses incurred for subscription, postage, stationeries and contributions while the
other deductions in the amount of P567,097.00 represents interest charges, medicare fees,
taxes and licenses. The total deductions in the amount of P1,994,845.00 represents 12% of the
total gross income.

21. In Schedule C, the net cumulative disposable income amounts to P6,756,301.00 or

US$980,709.77. This is the amount that represents that portion of the Marcoses income that is
free for consumption, savings and investments. The amount is arrived at by adding back to the
net income after tax the personal and additional exemptions for the years 1965-1984, as well as
the tax-exempt salary of the President for the years 1966 until 1972.

22. Finally, the networth analysis in Schedule D, represents the total accumulated networth of
spouses, Ferdinand and Imelda. Respondent's Balance Sheet attached to their 1965 ITR,
covering the year immediately preceding their ascendancy to the presidency, indicates an
ending networth of P120,000.00 which FM declared as Library and Miscellaneous assets. In
computing for the networth, the income approach was utilized. Under this approach, the
beginning capital is increased or decreased, as the case may be, depending upon the income
earned or loss incurred. Computations establish the total networth of spouses Ferdinand and
Imelda, for the years 1965 until 1984 in the total amount of US$957,487.75, assuming the
income from legal practice is real and valid x x x.

G. THE SECRET MARCOS DEPOSITS IN SWISS BANKS

23. The following presentation very clearly and overwhelmingly show in detail how both
respondents clandestinely stashed away the country's wealth to Switzerland and hid the same
under layers upon layers of foundations and other corporate entities to prevent its detection.
Through their dummies/nominees, fronts or agents who formed those foundations or corporate
entities, they opened and maintained numerous bank accounts. But due to the difficulty if not
the impossibility of detecting and documenting all those secret accounts as well as the enormity
of the deposits therein hidden, the following presentation is confined to five identified accounts
groups, with balances amounting to about $356-M with a reservation for the filing of a
supplemental or separate forfeiture complaint should the need arise.

H. THE AZIO-VERSO-VIBUR FOUNDATION ACCOUNTS

24. On June 11, 1971, Ferdinand Marcos issued a written order to Dr. Theo Bertheau, legal
counsel of Schweizeresche Kreditanstalt or SKA, also known as Swiss Credit Bank, for him to
establish the AZIO Foundation. On the same date, Marcos executed a power of attorney in favor
of Roberto S. Benedicto empowering him to transact business in behalf of the said foundation.

203
Pursuant to the said Marcos mandate, AZIO Foundation was formed on June 21, 1971 in Vaduz.
Walter Fessler and Ernst Scheller, also of SKA Legal Service, and Dr. Helmuth Merling from
Schaan were designated as members of the Board of Trustees of the said foundation. Ferdinand
Marcos was named first beneficiary and the Marcos Foundation, Inc. was second beneficiary. On
November 12, 1971, FM again issued another written order naming Austrahil PTY Ltd. In Sydney,
Australia, as the foundation's first and sole beneficiary. This was recorded on December 14,
1971.

25. In an undated instrument, Marcos changed the first and sole beneficiary to CHARIS
FOUNDATION. This change was recorded on December 4, 1972.

26. On August 29, 1978, the AZIO FOUNDATION was renamed to VERSO FOUNDATION. The
Board of Trustees remained the same. On March 11, 1981, Marcos issued a written directive to
liquidated VERSO FOUNDATION and to transfer all its assets to account of FIDES TRUST
COMPANY at Bank Hofman in Zurich under the account "Reference OSER." The Board of
Trustees decided to dissolve the foundation on June 25, 1981.

27. In an apparent maneuver to bury further the secret deposits beneath the thick layers of
corporate entities, FM effected the establishment of VIBUR FOUNDATION on May 13, 1981 in
Vaduz. Atty. Ivo Beck and Limag Management, a wholly-owned subsidiary of Fides Trust, were
designated as members of the Board of Trustees. The account was officially opened with SKA on
September 10, 1981. The beneficial owner was not made known to the bank since Fides Trust
Company acted as fiduciary. However, comparison of the listing of the securities in the safe
deposit register of the VERSO FOUNDATION as of February 27, 1981 with that of VIBUR
FOUNDATION as of December 31, 1981 readily reveals that exactly the same securities were
listed.

28. Under the foregoing circumstances, it is certain that the VIBUR FOUNDATION is the
beneficial successor of VERSO FOUNDATION.

29. On March 18, 1986, the Marcos-designated Board of Trustees decided to liquidate VIBUR
FOUNDATION. A notice of such liquidation was sent to the Office of the Public Register on
March 21, 1986. However, the bank accounts and respective balances of the said VIBUR
FOUNDATION remained with SKA. Apparently, the liquidation was an attempt by the Marcoses
to transfer the foundation's funds to another account or bank but this was prevented by the
timely freeze order issued by the Swiss authorities. One of the latest documents obtained by the
PCGG from the Swiss authorities is a declaration signed by Dr. Ivo Beck (the trustee) stating that
the beneficial owner of VIBUR FOUNDATION is Ferdinand E. Marcos. Another document signed
by G. Raber of SKA shows that VIBUR FOUNDATION is owned by the "Marcos Familie"

30. As of December 31, 1989, the balance of the bank accounts of VIBUR FOUNDATION with SKA,
Zurich, under the General Account No. 469857 totaled $3,597,544.00

I. XANDY-WINTROP: CHARIS-SCOLARI-
VALAMO-SPINUS-AVERTINA FOUNDATION ACCOUNTS

31. This is the most intricate and complicated account group. As the Flow Chart hereof shows,
two (2) groups under the foundation organized by Marcos dummies/nominees for FM's benefit,
eventually joined together and became one (1) account group under the AVERTINA
FOUNDATION for the benefit of both FM and Imelda. This is the biggest group from where the
$50-M investment fund of the Marcoses was drawn when they bought the Central Bank's dollar-
denominated treasury notes with high-yielding interests.

32. On March 20, 1968, after his second year in the presidency, Marcos opened bank accounts
with SKA using an alias or pseudonym WILLIAM SAUNDERS, apparently to hide his true identity.
The next day, March 21, 1968, his First Lady, Mrs. Imelda Marcos also opened her own bank
accounts with the same bank using an American-sounding alias, JANE RYAN. Found among the
voluminous documents in Malacañang shortly after they fled to Hawaii in haste that fateful

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night of February 25, 1986, were accomplished forms for "Declaration/Specimen Signatures"
submitted by the Marcos couple. Under the caption "signature(s)" Ferdinand and Imelda signed
their real names as well as their respective aliases underneath. These accounts were actively
operated and maintained by the Marcoses for about two (2) years until their closure sometime
in February, 1970 and the balances transferred to XANDY FOUNDATION.

33. The XANDY FOUNDATION was established on March 3, 1970 in Vaduz. C.W. Fessler, C.
Souviron and E. Scheller were named as members of the Board of Trustees.

34. FM and Imelda issued the written mandate to establish the foundation to Markus Geel of
SKA on March 3, 1970. In the handwritten Regulations signed by the Marcos couple as well as in
the type-written Regulations signed by Markus Geel both dated February 13, 1970, the Marcos
spouses were named the first beneficiaries, the surviving spouse as the second beneficiary and
the Marcos children – Imee, Ferdinand, Jr. (Bongbong) and Irene – as equal third beneficiaries.

35. The XANDY FOUNDATION was renamed WINTROP FOUNDATION on August 29, 1978. The
Board of Trustees remained the same at the outset. However, on March 27, 1980, Souviron was
replaced by Dr. Peter Ritter. On March 10. 1981, Ferdinand and Imelda Marcos issued a written
order to the Board of Wintrop to liquidate the foundation and transfer all its assets to Bank
Hofmann in Zurich in favor of FIDES TRUST COMPANY. Later, WINTROP FOUNDATION was
dissolved.

36. The AVERTINA FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck
and Limag Management, a wholly-owned subsidiary of FIDES TRUST CO., as members of the
Board of Trustees. Two (2) account categories, namely: CAR and NES, were opened on
September 10, 1981. The beneficial owner of AVERTINA was not made known to the bank since
the FIDES TRUST CO. acted as fiduciary. However, the securities listed in the safe deposit register
of WINTROP FOUNDATION Category R as of December 31, 1980 were the same as those listed in
the register of AVERTINA FOUNDATION Category CAR as of December 31, 1981. Likewise, the
securities listed in the safe deposit register of WINTROP FOUNDATION Category S as of
December 31, 1980 were the same as those listed in the register of Avertina Category NES as of
December 31, 1981.Under the circumstances, it is certain that the beneficial successor of
WINTROP FOUNDATION is AVERTINA FOUNDATION. The balance of Category CAR as of
December 31, 1989 amounted to US$231,366,894.00 while that of Category NES as of 12-31-83
was US$8,647,190.00. Latest documents received from Swiss authorities included a declaration
signed by IVO Beck stating that the beneficial owners of AVERTINA FOUNDATION are FM and
Imelda. Another document signed by G. Raber of SKA indicates that Avertina Foundation is
owned by the "Marcos Families."

37. The other groups of foundations that eventually joined AVERTINA were also established by
FM through his dummies, which started with the CHARIS FOUNDATION.

38. The CHARIS FOUNDATION was established in VADUZ on December 27, 1971. Walter Fessler
and Ernst Scheller of SKA and Dr. Peter Ritter were named as directors. Dr. Theo Bertheau, SKA
legal counsel, acted as founding director in behalf of FM by virtue of the mandate and
agreement dated November 12, 1971. FM himself was named the first beneficiary and Xandy
Foundation as second beneficiary in accordance with the handwritten instructions of FM on
November 12, 1971 and the Regulations. FM gave a power of attorney to Roberto S. Benedicto
on February 15, 1972 to act in his behalf with regard to Charis Foundation.

39. On December 13, 1974, Charis Foundation was renamed Scolari Foundation but the
directors remained the same. On March 11, 1981 FM ordered in writing that the Valamo
Foundation be liquidated and all its assets be transferred to Bank Hofmann, AG in favor of Fides
Trust Company under the account "Reference OMAL". The Board of Directors decided on the
immediate dissolution of Valamo Foundation on June 25, 1981.

40 The SPINUS FOUNDATION was established on May 13, 1981 in Vaduz with Atty. Ivo Beck and
Limag Management, a wholly-owned subsidiary of Fides Trust Co., as members of the

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Foundation's Board of Directors. The account was officially opened with SKA on September 10,
1981. The beneficial owner of the foundation was not made known to the bank since Fides Trust
Co. acted as fiduciary. However, the list of securities in the safe deposit register of Valamo
Foundation as of December 31, 1980 are practically the same with those listed in the safe
deposit register of Spinus Foundation as of December 31, 1981. Under the circumstances, it is
certain that the Spinus Foundation is the beneficial successor of the Valamo Foundation.

41. On September 6, 1982, there was a written instruction from Spinus Foundation to SKA to
close its Swiss Franc account and transfer the balance to Avertina Foundation. In July/August,
1982, several transfers from the foundation's German marks and US dollar accounts were made
to Avertina Category CAR totaling DM 29.5-M and $58-M, respectively. Moreover, a comparison
of the list of securities of the Spinus Foundation as of February 3, 1982 with the safe deposit
slips of the Avertina Foundation Category CAR as of August 19, 1982 shows that all the securities
of Spinus were transferred to Avertina.

J. TRINIDAD-RAYBY-PALMY FOUNDATION ACCOUNTS

42. The Trinidad Foundation was organized on August 26, 1970 in Vaduz with C.W. Fessler and E.
Scheller of SKA and Dr. Otto Tondury as the foundation's directors. Imelda issued a written
mandate to establish the foundation to Markus Geel on August 26, 1970. The regulations as well
as the agreement, both dated August 28, 1970 were likewise signed by Imelda. Imelda was
named the first beneficiary and her children Imelda (Imee), Ferdinand, Jr. (Bongbong) and, Irene
were named as equal second beneficiaries.

43. Rayby Foundation was established on June 22, 1973 in Vaduz with Fessler, Scheller and
Ritter as members of the board of directors. Imelda issued a written mandate to Dr. Theo
Bertheau to establish the foundation with a note that the foundation's capitalization as well as
the cost of establishing it be debited against the account of Trinidad Foundation. Imelda was
named the first and only beneficiary of Rayby foundation. According to written information from
SKA dated November 28, 1988, Imelda apparently had the intention in 1973 to transfer part of
the assets of Trinidad Foundation to another foundation, thus the establishment of Rayby
Foundation. However, transfer of assets never took place. On March 10, 1981, Imelda issued a
written order to transfer all the assets of Rayby Foundation to Trinidad Foundation and to
subsequently liquidate Rayby. On the same date, she issued a written order to the board of
Trinidad to dissolve the foundation and transfer all its assets to Bank Hofmann in favor of Fides
Trust Co. Under the account "Reference Dido," Rayby was dissolved on April 6, 1981 and
Trinidad was liquidated on August 3, 1981.

44. The PALMY FOUNDATION was established on May 13, 1981 in Vaduz with Dr. Ivo Beck and
Limag Management, a wholly-owned subsidiary of Fides Trust Co, as members of the
Foundation's Board of Directors. The account was officially opened with the SKA on September
10, 1981. The beneficial owner was not made known to the bank since Fides Trust Co. acted as
fiduciary. However, when one compares the listing of securities in the safe deposit register of
Trinidad Foundation as of December 31,1980 with that of the Palmy Foundation as of December
31, 1980, one can clearly see that practically the same securities were listed. Under the
circumstances, it is certain that the Palmy Foundation is the beneficial successor of the Trinidad
Foundation.

45. As of December 31, 1989, the ending balance of the bank accounts of Palmy Foundation
under General Account No. 391528 is $17,214,432.00.

46. Latest documents received from Swiss Authorities included a declaration signed by Dr. Ivo
Beck stating that the beneficial owner of Palmy Foundation is Imelda. Another document signed
by Raber shows that the said Palmy Foundation is owned by "Marcos Familie".

K. ROSALYS-AGUAMINA FOUNDATION ACCOUNTS

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 47. Rosalys Foundation was established in 1971 with FM as the beneficiary. Its Articles of
Incorporation was executed on September 24, 1971 and its By-Laws on October 3, 1971. This
foundation maintained several accounts with Swiss Bank Corporation (SBC) under the general
account 51960 where most of the bribe monies from Japanese suppliers were hidden.

48. On December 19, 1985, Rosalys Foundation was liquidated and all its assets were
transferred to Aguamina Corporation's (Panama) Account No. 53300 with SBC. The ownership
by Aguamina Corporation of Account No. 53300 is evidenced by an opening account documents
from the bank. J. Christinaz and R.L. Rossier, First Vice-President and Senior Vice President,
respectively, of SBC, Geneva issued a declaration dated September 3, 1991 stating that the by-
laws dated October 3, 1971 governing Rosalys Foundation was the same by-law applied to
Aguamina Corporation Account No. 53300. They further confirmed that no change of beneficial
owner was involved while transferring the assets of Rosalys to Aguamina. Hence, FM remains
the beneficiary of Aguamina Corporation Account No. 53300.

As of August 30, 1991, the ending balance of Account No. 53300 amounted to $80,566,483.00.

L. MALER FOUNDATION ACCOUNTS

49. Maler was first created as an establishment. A statement of its rules and regulations was
found among Malacañang documents. It stated, among others, that 50% of the Company's
assets will be for sole and full right disposal of FM and Imelda during their lifetime, which the
remaining 50% will be divided in equal parts among their children. Another Malacañang
document dated October 19,1968 and signed by Ferdinand and Imelda pertains to the
appointment of Dr. Andre Barbey and Jean Louis Sunier as attorneys of the company and as
administrator and manager of all assets held by the company. The Marcos couple, also
mentioned in the said document that they bought the Maler Establishment from SBC, Geneva.
On the same date, FM and Imelda issued a letter addressed to Maler Establishment, stating that
all instructions to be transmitted with regard to Maler will be signed with the word "JOHN
LEWIS". This word will have the same value as the couple's own personal signature. The letter
was signed by FM and Imelda in their signatures and as John Lewis.

50. Maler Establishment opened and maintained bank accounts with SBC, Geneva. The opening
bank documents were signed by Dr. Barbey and Mr. Sunnier as authorized signatories.

51. On November 17, 1981, it became necessary to transform Maler Establishment into a
foundation. Likewise, the attorneys were changed to Michael Amaudruz, et. al. However,
administration of the assets was left to SBC. The articles of incorporation of Maler Foundation
registered on November 17, 1981 appear to be the same articles applied to Maler Establishment.
On February 28, 1984, Maler Foundation cancelled the power of attorney for the management
of its assets in favor of SBC and transferred such power to Sustrust Investment Co., S.A.

52. As of June 6, 1991, the ending balance of Maler Foundation's Account Nos. 254,508 BT and
98,929 NY amount SF 9,083,567 and SG 16,195,258, respectively, for a total of SF 25,278,825.00.
GM only until December 31, 1980. This account was opened by Maler when it was still an
establishment which was subsequently transformed into a foundation.

53. All the five (5) group accounts in the over-all flow chart have a total balance of about Three
Hundred Fifty Six Million Dollars ($356,000,000.00) as shown by Annex "R-5" hereto attached as
integral part hereof.

xxx x x x.27

Respondents Imelda R. Marcos, Maria Imelda M. Manotoc, Irene M. Araneta and Ferdinand Marcos, Jr.,
in their answer, stated the following:

xxx xxx xxx

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4. Respondents ADMIT paragraphs 3 and 4 of the Petition.

5. Respondents specifically deny paragraph 5 of the Petition in so far as it states that summons
and other court processes may be served on Respondent Imelda R. Marcos at the stated address
the truth of the matter being that Respondent Imelda R. Marcos may be served with summons
and other processes at No. 10-B Bel Air Condominium 5022 P. Burgos Street, Makati, Metro
Manila, and ADMIT the rest.

xxx xxx xxx

10. Respondents ADMIT paragraph 11 of the Petition.

11. Respondents specifically DENY paragraph 12 of the Petition for lack of knowledge sufficient
to form a belief as to the truth of the allegation since Respondents were not privy to the
transactions and that they cannot remember exactly the truth as to the matters alleged.

12. Respondents specifically DENY paragraph 13 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs and Balance Sheet.

13. Respondents specifically DENY paragraph 14 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

14. Respondents specifically DENY paragraph 15 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

15. Respondents specifically DENY paragraph 16 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

16. Respondents specifically DENY paragraph 17 of the Petition insofar as it attributes willful
duplicity on the part of the late President Marcos, for being false, the same being pure
conclusions based on pure assumption and not allegations of fact; and specifically DENY the rest
for lack of knowledge or information sufficient to form a belief as to the truth of the allegation
since Respondents cannot remember with exactitude the contents of the alleged ITRs or the
attachments thereto.

17. Respondents specifically DENY paragraph 18 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

18. Respondents specifically DENY paragraph 19 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs and that they are not privy to the
activities of the BIR.

19. Respondents specifically DENY paragraph 20 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

20. Respondents specifically DENY paragraph 21 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

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 21. Respondents specifically DENY paragraph 22 of the Petition for lack of knowledge or
information sufficient to form a belief as to the truth of the allegation since Respondents cannot
remember with exactitude the contents of the alleged ITRs.

22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents

clandestinely stashed the country's wealth in Switzerland and hid the same under layers and
layers of foundation and corporate entities for being false, the truth being that Respondents
aforesaid properties were lawfully acquired.

23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for
lack of knowledge or information sufficient to form a belief as to the truth of the allegation since
Respondents were not privy to the transactions regarding the alleged Azio-Verso-Vibur
Foundation accounts, except that as to Respondent Imelda R. Marcos she specifically
remembers that the funds involved were lawfully acquired.

24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36,37, 38, 39, 40, and 41 of the
Petition for lack of knowledge or information sufficient to form a belief as to the truth of the
allegations since Respondents are not privy to the transactions and as to such transaction they
were privy to they cannot remember with exactitude the same having occurred a long time ago,
except that as to Respondent Imelda R. Marcos she specifically remembers that the funds
involved were lawfully acquired.

25. Respondents specifically DENY paragraphs 42, 43, 44, 45, and 46, of the Petition for lack of
knowledge or information sufficient to form a belief as to the truth of the allegations since
Respondents were not privy to the transactions and as to such transaction they were privy to
they cannot remember with exactitude the same having occurred a long time ago, except that
as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were
lawfully acquired.

26. Respondents specifically DENY paragraphs 49, 50, 51 and 52, of the Petition for lack of
knowledge or information sufficient to form a belief as to the truth of the allegations since
Respondents were not privy to the transactions and as to such transaction they were privy to
they cannot remember with exactitude the same having occurred a long time ago, except that
as to Respondent Imelda R. Marcos she specifically remembers that the funds involved were
lawfully acquired.

Upon careful perusal of the foregoing, the Court finds that respondent Mrs. Marcos and the Marcos
children indubitably failed to tender genuine issues in their answer to the petition for forfeiture. A
genuine issue is an issue of fact which calls for the presentation of evidence as distinguished from an
issue which is fictitious and contrived, set up in bad faith or patently lacking in substance so as not to
constitute a genuine issue for trial. Respondents' defenses of "lack of knowledge for lack of privity" or
"(inability to) recall because it happened a long time ago" or, on the part of Mrs. Marcos, that "the funds
were lawfully acquired" are fully insufficient to tender genuine issues. Respondent Marcoses' defenses
were a sham and evidently calibrated to compound and confuse the issues.

The following pleadings filed by respondent Marcoses are replete with indications of a spurious defense:

(a) Respondents' Answer dated October 18, 1993;

(b) Pre-trial Brief dated October 4, 1999 of Mrs. Marcos, Supplemental Pre-trial Brief dated
October 19, 1999 of Ferdinand, Jr. and Mrs. Imee Marcos-Manotoc adopting the pre-trial brief
of Mrs. Marcos, and Manifestation dated October 19, 1999 of Irene Marcos-Araneta adopting
the pre-trial briefs of her co- respondents;

(c) Opposition to Motion for Summary Judgment dated March 21, 2000, filed by Mrs. Marcos
which the other respondents (Marcos children) adopted;

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 (d) Demurrer to Evidence dated May 2, 2000 filed by Mrs. Marcos and adopted by the Marcos
children;

(e) Motion for Reconsideration dated September 26, 2000 filed by Mrs. Marcos; Motion for
Reconsideration dated October 5, 2000 jointly filed by Mrs. Manotoc and Ferdinand, Jr., and
Supplemental Motion for Reconsideration dated October 9, 2000 likewise jointly filed by Mrs.
Manotoc and Ferdinand, Jr.;

(f) Memorandum dated December 12, 2000 of Mrs. Marcos and Memorandum dated December
17, 2000 of the Marcos children;

(g) Manifestation dated May 26, 1998; and

(h) General/Supplemental Agreement dated December 23, 1993.

An examination of the foregoing pleadings is in order.

• Respondents' Answer dated October 18, 1993.

In their answer, respondents failed to specifically deny each and every allegation contained in the
petition for forfeiture in the manner required by the rules. All they gave were stock answers like "they
have no sufficient knowledge" or "they could not recall because it happened a long time ago," and, as to
Mrs. Marcos, "the funds were lawfully acquired," without stating the basis of such assertions.

Section 10, Rule 8 of the 1997 Rules of Civil Procedure, provides:

A defendant must specify each material allegation of fact the truth of which he does not admit
and, whenever practicable, shall set forth the substance of the matters upon which he relies to
support his denial. Where a defendant desires to deny only a part of an averment, he shall
specify so much of it as is true and material and shall deny the remainder. Where a defendant is
without knowledge or information sufficient to form a belief as to the truth of a material
averment made in the complaint, he shall so state, and this shall have the effect of a denial.28

The purpose of requiring respondents to make a specific denial is to make them disclose facts which will
disprove the allegations of petitioner at the trial, together with the matters they rely upon in support of
such denial. Our jurisdiction adheres to this rule to avoid and prevent unnecessary expenses and waste
of time by compelling both parties to lay their cards on the table, thus reducing the controversy to its
true terms. As explained in Alonso vs. Villamor,29

A litigation is not a game of technicalities in which one, more deeply schooled and skilled in the
subtle art of movement and position, entraps and destroys the other. It is rather a contest in
which each contending party fully and fairly lays before the court the facts in issue and then,
brushing aside as wholly trivial and indecisive all imperfections of form and technicalities of
procedure, asks that justice be done upon the merits. Lawsuits, unlike duels, are not to be won
by a rapier's thrust.

On the part of Mrs. Marcos, she claimed that the funds were lawfully acquired. However, she failed to
particularly state the ultimate facts surrounding the lawful manner or mode of acquisition of the subject
funds. Simply put, she merely stated in her answer with the other respondents that the funds were
"lawfully acquired" without detailing how exactly these funds were supposedly acquired legally by them.
Even in this case before us, her assertion that the funds were lawfully acquired remains bare and
unaccompanied by any factual support which can prove, by the presentation of evidence at a hearing,
that indeed the funds were acquired legitimately by the Marcos family.

Respondents' denials in their answer at the Sandiganbayan were based on their alleged lack of
knowledge or information sufficient to form a belief as to the truth of the allegations of the petition.

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It is true that one of the modes of specific denial under the rules is a denial through a statement that the
defendant is without knowledge or information sufficient to form a belief as to the truth of the material
averment in the complaint. The question, however, is whether the kind of denial in respondents' answer
qualifies as the specific denial called for by the rules. We do not think so. In Morales vs. Court of
Appeals,30 this Court ruled that if an allegation directly and specifically charges a party with having done,
performed or committed a particular act which the latter did not in fact do, perform or commit, a
categorical and express denial must be made.

Here, despite the serious and specific allegations against them, the Marcoses responded by simply
saying that they had no knowledge or information sufficient to form a belief as to the truth of such
allegations. Such a general, self-serving claim of ignorance of the facts alleged in the petition for
forfeiture was insufficient to raise an issue. Respondent Marcoses should have positively stated how it
was that they were supposedly ignorant of the facts alleged.31

To elucidate, the allegation of petitioner Republic in paragraph 23 of the petition for forfeiture stated:

23. The following presentation very clearly and overwhelmingly show in detail how both
respondents clandestinely stashed away the country's wealth to Switzerland and hid the same
under layers upon layers of foundations and other corporate entities to prevent its detection.
Through their dummies/nominees, fronts or agents who formed those foundations or corporate
entities, they opened and maintained numerous bank accounts. But due to the difficulty if not
the impossibility of detecting and documenting all those secret accounts as well as the enormity
of the deposits therein hidden, the following presentation is confined to five identified accounts
groups, with balances amounting to about $356-M with a reservation for the filing of a
supplemental or separate forfeiture complaint should the need arise.32

Respondents' lame denial of the aforesaid allegation was:

22. Respondents specifically DENY paragraph 23 insofar as it alleges that Respondents

clandestinely stashed the country's wealth in Switzerland and hid the same under layers and
layers of foundations and corporate entities for being false, the truth being that Respondents'
aforesaid properties were lawfully acquired.33

Evidently, this particular denial had the earmark of what is called in the law on pleadings as a negative
pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading
responded to which are not squarely denied. It was in effect an admission of the averments it was
directed at.34 Stated otherwise, a negative pregnant is a form of negative expression which carries with
it an affirmation or at least an implication of some kind favorable to the adverse party. It is a denial
pregnant with an admission of the substantial facts alleged in the pleading. Where a fact is alleged with
qualifying or modifying language and the words of the allegation as so qualified or modified are literally
denied, has been held that the qualifying circumstances alone are denied while the fact itself is
admitted.35

In the instant case, the material allegations in paragraph 23 of the said petition were not specifically
denied by respondents in paragraph 22 of their answer. The denial contained in paragraph 22 of the
answer was focused on the averment in paragraph 23 of the petition for forfeiture that "Respondents
clandestinely stashed the country's wealth in Switzerland and hid the same under layers and layers of
foundations and corporate entities." Paragraph 22 of the respondents' answer was thus a denial
pregnant with admissions of the following substantial facts:

(1) the Swiss bank deposits existed and

(2) that the estimated sum thereof was US$356 million as of December, 1990.

Therefore, the allegations in the petition for forfeiture on the existence of the Swiss bank deposits in the
sum of about US$356 million, not having been specifically denied by respondents in their answer, were
deemed admitted by them pursuant to Section 11, Rule 8 of the 1997 Revised Rules on Civil Procedure:

211
 Material averment in the complaint, xxx shall be deemed admitted when not specifically denied.
xxx.36

By the same token, the following unsupported denials of respondents in their answer were pregnant
with admissions of the substantial facts alleged in the Republic's petition for forfeiture:

23. Respondents specifically DENY paragraphs 24, 25, 26, 27, 28, 29 and 30 of the Petition for
lack of knowledge or information sufficient to form a belief as to the truth of the allegation since
respondents were not privy to the transactions regarding the alleged Azio-Verso-Vibur
Foundation accounts, except that, as to respondent Imelda R. Marcos, she specifically
remembers that the funds involved were lawfully acquired.

24. Respondents specifically DENY paragraphs 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41 of the
Petition for lack of knowledge or information sufficient to form a belief as to the truth of the
allegations since respondents were not privy to the transactions and as to such transactions
they were privy to, they cannot remember with exactitude the same having occurred a long
time ago, except as to respondent Imelda R. Marcos, she specifically remembers that the funds
involved were lawfully acquired.

25. Respondents specifically DENY paragraphs 42, 43, 45, and 46 of the petition for lack of
knowledge or information sufficient to from a belief as to the truth of the allegations since
respondents were not privy to the transactions and as to such transaction they were privy to,
they cannot remember with exactitude, the same having occurred a long time ago, except that
as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were
lawfully acquired.

26. Respondents specifically DENY paragraphs 49, 50, 51 and 52 of the petition for lack of
knowledge and information sufficient to form a belief as to the truth of the allegations since
respondents were not privy to the transactions and as to such transaction they were privy to
they cannot remember with exactitude the same having occurred a long time ago, except that
as to respondent Imelda R. Marcos, she specifically remembers that the funds involved were
lawfully acquired.

The matters referred to in paragraphs 23 to 26 of the respondents' answer pertained to the creation of
five groups of accounts as well as their respective ending balances and attached documents alleged in
paragraphs 24 to 52 of the Republic's petition for forfeiture. Respondent Imelda R. Marcos never
specifically denied the existence of the Swiss funds. Her claim that "the funds involved were lawfully
acquired" was an acknowledgment on her part of the existence of said deposits. This only reinforced her
earlier admission of the allegation in paragraph 23 of the petition for forfeiture regarding the existence
of the US$356 million Swiss bank deposits.

The allegations in paragraphs 4737 and 4838 of the petition for forfeiture referring to the creation and
amount of the deposits of the Rosalys-Aguamina Foundation as well as the averment in paragraph 52-
a39 of the said petition with respect to the sum of the Swiss bank deposits estimated to be US$356
million were again not specifically denied by respondents in their answer. The respondents did not at all
respond to the issues raised in these paragraphs and the existence, nature and amount of the Swiss
funds were therefore deemed admitted by them. As held in Galofa vs. Nee Bon Sing,40 if a defendant's
denial is a negative pregnant, it is equivalent to an admission.

Moreover, respondents' denial of the allegations in the petition for forfeiture "for lack of knowledge or
information sufficient to form a belief as to the truth of the allegations since respondents were not privy
to the transactions" was just a pretense. Mrs. Marcos' privity to the transactions was in fact evident
from her signatures on some of the vital documents41 attached to the petition for forfeiture which Mrs.
Marcos failed to specifically deny as required by the rules.42

It is worthy to note that the pertinent documents attached to the petition for forfeiture were even
signed personally by respondent Mrs. Marcos and her late husband, Ferdinand E. Marcos, indicating that

212
said documents were within their knowledge. As correctly pointed out by Sandiganbayan Justice
Francisco Villaruz, Jr. in his dissenting opinion:

The pattern of: 1) creating foundations, 2) use of pseudonyms and dummies, 3) approving
regulations of the Foundations for the distribution of capital and income of the Foundations to
the First and Second beneficiary (who are no other than FM and his family), 4) opening of bank
accounts for the Foundations, 5) changing the names of the Foundations, 6) transferring funds
and assets of the Foundations to other Foundations or Fides Trust, 7) liquidation of the
Foundations as substantiated by the Annexes U to U-168, Petition [for forfeiture] strongly
indicate that FM and/or Imelda were the real owners of the assets deposited in the Swiss banks,
using the Foundations as dummies.43

How could respondents therefore claim lack of sufficient knowledge or information regarding the
existence of the Swiss bank deposits and the creation of five groups of accounts when Mrs. Marcos and
her late husband personally masterminded and participated in the formation and control of said
foundations? This is a fact respondent Marcoses were never able to explain.

Not only that. Respondents' answer also technically admitted the genuineness and due execution of the
Income Tax Returns (ITRs) and the balance sheets of the late Ferdinand E. Marcos and Imelda R. Marcos
attached to the petition for forfeiture, as well as the veracity of the contents thereof.

The answer again premised its denials of said ITRs and balance sheets on the ground of lack of
knowledge or information sufficient to form a belief as to the truth of the contents thereof. Petitioner
correctly points out that respondents' denial was not really grounded on lack of knowledge or
information sufficient to form a belief but was based on lack of recollection. By reviewing their own
records, respondent Marcoses could have easily determined the genuineness and due execution of the
ITRs and the balance sheets. They also had the means and opportunity of verifying the same from the
records of the BIR and the Office of the President. They did not.

When matters regarding which respondents claim to have no knowledge or information sufficient to
form a belief are plainly and necessarily within their knowledge, their alleged ignorance or lack of
information will not be considered a specific denial.44 An unexplained denial of information within the
control of the pleader, or is readily accessible to him, is evasive and is insufficient to constitute an
effective denial.45

The form of denial adopted by respondents must be availed of with sincerity and in good faith, and
certainly not for the purpose of confusing the adverse party as to what allegations of the petition are
really being challenged; nor should it be made for the purpose of delay.46 In the instant case, the
Marcoses did not only present unsubstantiated assertions but in truth attempted to mislead and deceive
this Court by presenting an obviously contrived defense.

Simply put, a profession of ignorance about a fact which is patently and necessarily within the pleader's
knowledge or means of knowing is as ineffective as no denial at all.47 Respondents' ineffective denial
thus failed to properly tender an issue and the averments contained in the petition for forfeiture were
deemed judicially admitted by them.

As held in J.P. Juan & Sons, Inc. vs. Lianga Industries, Inc.:

Its "specific denial" of the material allegation of the petition without setting forth the substance
of the matters relied upon to support its general denial, when such matters were plainly within
its knowledge and it could not logically pretend ignorance as to the same, therefore, failed to
properly tender on issue.48

Thus, the general denial of the Marcos children of the allegations in the petition for forfeiture "for lack
of knowledge or information sufficient to form a belief as to the truth of the allegations since they were
not privy to the transactions" cannot rightfully be accepted as a defense because they are the legal heirs
and successors-in-interest of Ferdinand E. Marcos and are therefore bound by the acts of their father
vis-a-vis the Swiss funds.

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 • PRE-TRIAL BRIEF DATED OCTOBER 18, 1993

The pre-trial brief of Mrs. Marcos was adopted by the three Marcos children. In said brief, Mrs. Marcos
stressed that the funds involved were lawfully acquired. But, as in their answer, they failed to state and
substantiate how these funds were acquired lawfully. They failed to present and attach even a single
document that would show and prove the truth of their allegations. Section 6, Rule 18 of the 1997 Rules
of Civil Procedure provides:

The parties shall file with the court and serve on the adverse party, x x x their respective pre-trial briefs
which shall contain, among others:

xxx

(d) the documents or exhibits to be presented, stating the purpose thereof;

xxx

(f) the number and names of the witnesses, and the substance of their respective testimonies.49

It is unquestionably within the court's power to require the parties to submit their pre-trial briefs and to
state the number of witnesses intended to be called to the stand, and a brief summary of the evidence
each of them is expected to give as well as to disclose the number of documents to be submitted with a
description of the nature of each. The tenor and character of the testimony of the witnesses and of the
documents to be deduced at the trial thus made known, in addition to the particular issues of fact and
law, it becomes apparent if genuine issues are being put forward necessitating the holding of a trial.
Likewise, the parties are obliged not only to make a formal identification and specification of the issues
and their proofs, and to put these matters in writing and submit them to the court within the specified
period for the prompt disposition of the action.50

The pre-trial brief of Mrs. Marcos, as subsequently adopted by respondent Marcos children, merely
stated:

xxx

WITNESSES

4.1 Respondent Imelda will present herself as a witness and reserves the right to present
additional witnesses as may be necessary in the course of the trial.

xxx

DOCUMENTARY EVIDENCE

5.1 Respondent Imelda reserves the right to present and introduce in evidence documents as
may be necessary in the course of the trial.

Mrs. Marcos did not enumerate and describe the documents constituting her evidence. Neither the
names of witnesses nor the nature of their testimony was stated. What alone appeared certain was the
testimony of Mrs. Marcos only who in fact had previously claimed ignorance and lack of knowledge. And
even then, the substance of her testimony, as required by the rules, was not made known either. Such
cunning tactics of respondents are totally unacceptable to this Court. We hold that, since no genuine
issue was raised, the case became ripe for summary judgment.

• OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

DATED MARCH 21, 2000

The opposition filed by Mrs. Marcos to the motion for summary judgment dated March 21, 2000 of
petitioner Republic was merely adopted by the Marcos children as their own opposition to the said

214
motion. However, it was again not accompanied by affidavits, depositions or admissions as required by
Section 3, Rule 35 of the 1997 Rules on Civil Procedure:

x x x The adverse party may serve opposing affidavits, depositions, or admissions at least three
(3) days before hearing. After hearing, the judgment sought shall be rendered forthwith if the
pleadings, supporting affidavits, depositions, and admissions on file, show that, except as to the
amount of damages, there is no genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.51

The absence of opposing affidavits, depositions and admissions to contradict the sworn declarations in
the Republic's motion only demonstrated that the averments of such opposition were not genuine and
therefore unworthy of belief.

• Demurrer to Evidence dated May 2, 2000;52

53
Motions for Reconsideration; and Memoranda
of Mrs. Marcos and the Marcos children54

All these pleadings again contained no allegations of facts showing their lawful acquisition of the funds.
Once more, respondents merely made general denials without alleging facts which would have been
admissible in evidence at the hearing, thereby failing to raise genuine issues of fact.

Mrs. Marcos insists in her memorandum dated October 21, 2002 that, during the pre-trial, her counsel
stated that his client was just a beneficiary of the funds, contrary to petitioner Republic's allegation that
Mrs. Marcos disclaimed ownership of or interest in the funds.

This is yet another indication that respondents presented a fictitious defense because, during the pre-
trial, Mrs. Marcos and the Marcos children denied ownership of or interest in the Swiss funds:

PJ Garchitorena:

Make of record that as far as Imelda Marcos is concerned through the statement of Atty.
Armando M. Marcelo that the US$360 million more or less subject matter of the instant
lawsuit as allegedly obtained from the various Swiss Foundations do not belong to the
estate of Marcos or to Imelda Marcos herself. That's your statement of facts?

Atty. MARCELO:

Yes, Your Honor.

PJ Garchitorena:

That's it. Okay. Counsel for Manotoc and Manotoc, Jr. What is your point here? Does the
estate of Marcos own anything of the $360 million subject of this case.

Atty. TECSON:

We joined the Manifestation of Counsel.

PJ Garchitorena:

You do not own anything?

Atty. TECSON:

Yes, Your Honor.

PJ Garchitorena:

215
 Counsel for Irene Araneta?

Atty. SISON:

I join the position taken by my other compañeros here, Your Honor.

xxx

Atty. SISON:

Irene Araneta as heir do (sic) not own any of the amount, Your Honor.55

We are convinced that the strategy of respondent Marcoses was to confuse petitioner Republic as to
what facts they would prove or what issues they intended to pose for the court's resolution. There is no
doubt in our mind that they were leading petitioner Republic, and now this Court, to perplexity, if not
trying to drag this forfeiture case to eternity.

• Manifestation dated May 26, 1998 filed by MRS.

Marcos; General/Supplemental Compromise
Agreement dated December 28, 1993

These pleadings of respondent Marcoses presented nothing but feigned defenses. In their earlier
pleadings, respondents alleged either that they had no knowledge of the existence of the Swiss deposits
or that they could no longer remember anything as it happened a long time ago. As to Mrs. Marcos, she
remembered that it was lawfully acquired.

In her Manifestation dated May 26, 1998, Mrs. Marcos stated that:

COMES NOW undersigned counsel for respondent Imelda R. Marcos, and before this Honorable
Court, most respectfully manifests:

That respondent Imelda R, Marcos owns 90% of the subject matter of the above-entitled case,
being the sole beneficiary of the dollar deposits in the name of the various foundations alleged
in the case;

That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of
the late President Ferdinand E. Marcos.

In the Compromise/Supplemental Agreements, respondent Marcoses sought to implement the agreed

distribution of the Marcos assets, including the Swiss deposits. This was, to us, an unequivocal admission
of ownership by the Marcoses of the said deposits.

But, as already pointed out, during the pre-trial conference, respondent Marcoses denied knowledge as
well as ownership of the Swiss funds.

Anyway we look at it, respondent Marcoses have put forth no real defense. The "facts" pleaded by
respondents, while ostensibly raising important questions or issues of fact, in reality comprised mere
verbiage that was evidently wanting in substance and constituted no genuine issues for trial.

We therefore rule that, under the circumstances, summary judgment is proper.

In fact, it is the law itself which determines when summary judgment is called for. Under the rules,
summary judgment is appropriate when there are no genuine issues of fact requiring the presentation
of evidence in a full-blown trial. Even if on their face the pleadings appear to raise issue, if the affidavits,
depositions and admissions show that such issues are not genuine, then summary judgment as
prescribed by the rules must ensue as a matter of law.56

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In sum, mere denials, if unaccompanied by any fact which will be admissible in evidence at a hearing,
are not sufficient to raise genuine issues of fact and will not defeat a motion for summary judgment. 57 A
summary judgment is one granted upon motion of a party for an expeditious settlement of the case, it
appearing from the pleadings, depositions, admissions and affidavits that there are no important
questions or issues of fact posed and, therefore, the movant is entitled to a judgment as a matter of law.
A motion for summary judgment is premised on the assumption that the issues presented need not be
tried either because these are patently devoid of substance or that there is no genuine issue as to any
pertinent fact. It is a method sanctioned by the Rules of Court for the prompt disposition of a civil action
where there exists no serious controversy.58 Summary judgment is a procedural device for the prompt
disposition of actions in which the pleadings raise only a legal issue, not a genuine issue as to any
material fact. The theory of summary judgment is that, although an answer may on its face appear to
tender issues requiring trial, if it is established by affidavits, depositions or admissions that those issues
are not genuine but fictitious, the Court is justified in dispensing with the trial and rendering summary
judgment for petitioner.59

In the various annexes to the petition for forfeiture, petitioner Republic attached sworn statements of
witnesses who had personal knowledge of the Marcoses' participation in the illegal acquisition of funds
deposited in the Swiss accounts under the names of five groups or foundations. These sworn statements
substantiated the ill-gotten nature of the Swiss bank deposits. In their answer and other subsequent
pleadings, however, the Marcoses merely made general denials of the allegations against them without
stating facts admissible in evidence at the hearing, thereby failing to raise any genuine issues of fact.

Under these circumstances, a trial would have served no purpose at all and would have been totally
unnecessary, thus justifying a summary judgment on the petition for forfeiture. There were no opposing
affidavits to contradict the sworn declarations of the witnesses of petitioner Republic, leading to the
inescapable conclusion that the matters raised in the Marcoses' answer were false.

Time and again, this Court has encountered cases like this which are either only half-heartedly defended
or, if the semblance of a defense is interposed at all, it is only to delay disposition and gain time. It is
certainly not in the interest of justice to allow respondent Marcoses to avail of the appellate remedies
accorded by the Rules of Court to litigants in good faith, to the prejudice of the Republic and ultimately
of the Filipino people. From the beginning, a candid demonstration of respondents' good faith should
have been made to the court below. Without the deceptive reasoning and argumentation, this
protracted litigation could have ended a long time ago.

Since 1991, when the petition for forfeiture was first filed, up to the present, all respondents have
offered are foxy responses like "lack of sufficient knowledge or lack of privity" or "they cannot recall
because it happened a long time ago" or, as to Mrs. Marcos, "the funds were lawfully acquired." But,
whenever it suits them, they also claim ownership of 90% of the funds and allege that only 10% belongs
to the Marcos estate. It has been an incredible charade from beginning to end.

In the hope of convincing this Court to rule otherwise, respondents Maria Imelda Marcos-Manotoc and
Ferdinand R. Marcos Jr. contend that "by its positive acts and express admissions prior to filing the
motion for summary judgment on March 10, 2000, petitioner Republic had bound itself to go to trial on
the basis of existing issues. Thus, it had legally waived whatever right it had to move for summary
judgment."60

We do not think so. The alleged positive acts and express admissions of the petitioner did not preclude it
from filing a motion for summary judgment.

Rule 35 of the 1997 Rules of Civil Procedure provides:

Rule 35

Summary Judgment

Section 1. Summary judgment for claimant. - A party seeking to recover upon a claim,
counterclaim, or cross-claim or to obtain a declaratory relief may, at any time after the

217
 pleading in answer thereto has been served, move with supporting affidavits, depositions or
admissions for a summary judgment in his favor upon all or any part thereof.

Section 2. Summary judgment for defending party. - A party against whom a claim, counterclaim,
or cross-claim is asserted or a declaratory relief is sought may, at any time, move with
supporting affidavits, depositions or admissions for a summary judgment in his favor as to all or
any part thereof. (Emphasis ours)61

Under the rule, the plaintiff can move for summary judgment "at any time after the pleading in answer
thereto (i.e., in answer to the claim, counterclaim or cross-claim) has been served." No fixed
reglementary period is provided by the Rules. How else does one construe the phrase "any time after
the answer has been served?"

This issue is actually one of first impression. No local jurisprudence or authoritative work has touched
upon this matter. This being so, an examination of foreign laws and jurisprudence, particularly those of
the United States where many of our laws and rules were copied, is in order.

Rule 56 of the Federal Rules of Civil Procedure provides that a party seeking to recover upon a claim,
counterclaim or cross-claim may move for summary judgment at any time after the expiration of 20 days
from the commencement of the action or after service of a motion for summary judgment by the
adverse party, and that a party against whom a claim, counterclaim or cross-claim is asserted may move
for summary judgment at any time.

However, some rules, particularly Rule 113 of the Rules of Civil Practice of New York, specifically provide
that a motion for summary judgment may not be made until issues have been joined, that is, only after
an answer has been served.62 Under said rule, after issues have been joined, the motion for summary
judgment may be made at any stage of the litigation.63 No fixed prescriptive period is provided.

Like Rule 113 of the Rules of Civil Practice of New York, our rules also provide that a motion for summary
judgment may not be made until issues have been joined, meaning, the plaintiff has to wait for the
answer before he can move for summary judgment.64 And like the New York rules, ours do not provide
for a fixed reglementary period within which to move for summary judgment.

This being so, the New York Supreme Court's interpretation of Rule 113 of the Rules of Civil Practice can
be applied by analogy to the interpretation of Section 1, Rule 35, of our 1997 Rules of Civil Procedure.

Under the New York rule, after the issues have been joined, the motion for summary judgment may be
made at any stage of the litigation. And what exactly does the phrase "at any stage of the litigation"
mean? In Ecker vs. Muzysh,65 the New York Supreme Court ruled:

"PER CURIAM.

Plaintiff introduced her evidence and the defendants rested on the case made by the plaintiff.
The case was submitted. Owing to the serious illness of the trial justice, a decision was not
rendered within sixty days after the final adjournment of the term at which the case was tried.
With the approval of the trial justice, the plaintiff moved for a new trial under Section 442 of the
Civil Practice Act. The plaintiff also moved for summary judgment under Rule 113 of the Rules of
Civil Practice. The motion was opposed mainly on the ground that, by proceeding to trial, the
plaintiff had waived her right to summary judgment and that the answer and the opposing
affidavits raised triable issues. The amount due and unpaid under the contract is not in dispute.
The Special Term granted both motions and the defendants have appealed.

The Special Term properly held that the answer and the opposing affidavits raised no triable
issue. Rule 113 of the Rules of Civil Practice and the Civil Practice Act prescribe no limitation as
to the time when a motion for summary judgment must be made. The object of Rule 113 is to
empower the court to summarily determine whether or not a bona fide issue exists between
the parties, and there is no limitation on the power of the court to make such a determination
at any stage of the litigation." (emphasis ours)

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On the basis of the aforequoted disquisition, "any stage of the litigation" means that "even if the
plaintiff has proceeded to trial, this does not preclude him from thereafter moving for summary
judgment."66

In the case at bar, petitioner moved for summary judgment after pre-trial and before its scheduled date
for presentation of evidence. Respondent Marcoses argue that, by agreeing to proceed to trial during
the pre-trial conference, petitioner "waived" its right to summary judgment.

This argument must fail in the light of the New York Supreme Court ruling which we apply by analogy to
this case. In Ecker,67 the defendant opposed the motion for summary judgment on a ground similar to
that raised by the Marcoses, that is, "that plaintiff had waived her right to summary judgment" by her
act of proceeding to trial. If, as correctly ruled by the New York court, plaintiff was allowed to move for
summary judgment even after trial and submission of the case for resolution, more so should we permit
it in the present case where petitioner moved for summary judgment before trial.

Therefore, the phrase "anytime after the pleading in answer thereto has been served" in Section 1, Rule
35 of our Rules of Civil Procedure means "at any stage of the litigation." Whenever it becomes evident at
any stage of the litigation that no triable issue exists, or that the defenses raised by the defendant(s) are
sham or frivolous, plaintiff may move for summary judgment. A contrary interpretation would go against
the very objective of the Rule on Summary Judgment which is to "weed out sham claims or defenses
thereby avoiding the expense and loss of time involved in a trial."68

In cases with political undertones like the one at bar, adverse parties will often do almost anything to
delay the proceedings in the hope that a future administration sympathetic to them might be able to
influence the outcome of the case in their favor. This is rank injustice we cannot tolerate.

The law looks with disfavor on long, protracted and expensive litigation and encourages the speedy and
prompt disposition of cases. That is why the law and the rules provide for a number of devices to ensure
the speedy disposition of cases. Summary judgment is one of them.

Faithful therefore to the spirit of the law on summary judgment which seeks to avoid unnecessary
expense and loss of time in a trial, we hereby rule that petitioner Republic could validly move for
summary judgment any time after the respondents' answer was filed or, for that matter, at any
subsequent stage of the litigation. The fact that petitioner agreed to proceed to trial did not in any way
prevent it from moving for summary judgment, as indeed no genuine issue of fact was ever validly
raised by respondent Marcoses.

This interpretation conforms with the guiding principle enshrined in Section 6, Rule 1 of the 1997 Rules
of Civil Procedure that the "[r]ules should be liberally construed in order to promote their objective of
securing a just, speedy and inexpensive disposition of every action and proceeding."69

Respondents further allege that the motion for summary judgment was based on respondents' answer
and other documents that had long been in the records of the case. Thus, by the time the motion was
filed on March 10, 2000, estoppel by laches had already set in against petitioner.

We disagree. Estoppel by laches is the failure or neglect for an unreasonable or unexplained length of
time to do that which, by exercising due diligence, could or should have been done earlier, warranting a
presumption that the person has abandoned his right or declined to assert it.70 In effect, therefore, the
principle of laches is one of estoppel because "it prevents people who have slept on their rights from
prejudicing the rights of third parties who have placed reliance on the inaction of the original parties and
their successors-in-interest".71

A careful examination of the records, however, reveals that petitioner was in fact never remiss in
pursuing its case against respondent Marcoses through every remedy available to it, including the
motion for summary judgment.

Petitioner Republic initially filed its motion for summary judgment on October 18, 1996. The motion was
denied because of the pending compromise agreement between the Marcoses and petitioner. But

219
during the pre-trial conference, the Marcoses denied ownership of the Swiss funds, prompting
petitioner to file another motion for summary judgment now under consideration by this Court. It was
the subsequent events that transpired after the answer was filed, therefore, which prevented petitioner
from filing the questioned motion. It was definitely not because of neglect or inaction that petitioner
filed the (second) motion for summary judgment years after respondents' answer to the petition for
forfeiture.

In invoking the doctrine of estoppel by laches, respondents must show not only unjustified inaction but
also that some unfair injury to them might result unless the action is barred.72

This, respondents failed to bear out. In fact, during the pre-trial conference, the Marcoses disclaimed
ownership of the Swiss deposits. Not being the owners, as they claimed, respondents did not have any
vested right or interest which could be adversely affected by petitioner's alleged inaction.

But even assuming for the sake of argument that laches had already set in, the doctrine of estoppel or
laches does not apply when the government sues as a sovereign or asserts governmental rights.73 Nor
can estoppel validate an act that contravenes law or public policy.74

As a final point, it must be emphasized that laches is not a mere question of time but is principally a
question of the inequity or unfairness of permitting a right or claim to be enforced or asserted.75 Equity
demands that petitioner Republic should not be barred from pursuing the people's case against the
Marcoses.

(2) The Propriety of Forfeiture

The matter of summary judgment having been thus settled, the issue of whether or not petitioner
Republic was able to prove its case for forfeiture in accordance with the requisites of Sections 2 and 3 of
RA 1379 now takes center stage.

The law raises the prima facie presumption that a property is unlawfully acquired, hence subject to
forfeiture, if its amount or value is manifestly disproportionate to the official salary and other lawful
income of the public officer who owns it. Hence, Sections 2 and 6 of RA 137976 provide:

xxx xxx

Section 2. Filing of petition. – Whenever any public officer or employee has acquired during his
incumbency an amount or property which is manifestly out of proportion to his salary as such
public officer or employee and to his other lawful income and the income from legitimately
acquired property, said property shall be presumed prima facie to have been unlawfully
acquired.

xxx xxx

Sec. 6. Judgment – If the respondent is unable to show to the satisfaction of the court that he
has lawfully acquired the property in question, then the court shall declare such property in
question, forfeited in favor of the State, and by virtue of such judgment the property aforesaid
shall become the property of the State. Provided, That no judgment shall be rendered within six
months before any general election or within three months before any special election. The
Court may, in addition, refer this case to the corresponding Executive Department for
administrative or criminal action, or both.

From the above-quoted provisions of the law, the following facts must be established in order that
forfeiture or seizure of the Swiss deposits may be effected:

(1) ownership by the public officer of money or property acquired during his incumbency,
whether it be in his name or otherwise, and

220
 (2) the extent to which the amount of that money or property exceeds, i. e., is grossly
disproportionate to, the legitimate income of the public officer.

That spouses Ferdinand and Imelda Marcos were public officials during the time material to the instant
case was never in dispute. Paragraph 4 of respondent Marcoses' answer categorically admitted the
allegations in paragraph 4 of the petition for forfeiture as to the personal circumstances of Ferdinand E.
Marcos as a public official who served without interruption as Congressman, Senator, Senate President
and President of the Republic of the Philippines from December 1, 1965 to February 25, 1986.77 Likewise,
respondents admitted in their answer the contents of paragraph 5 of the petition as to the personal
circumstances of Imelda R. Marcos who once served as a member of the Interim Batasang
Pambansa from 1978 to 1984 and as Metro Manila Governor, concurrently Minister of Human
Settlements, from June 1976 to February 1986.78

Respondent Mrs. Marcos also admitted in paragraph 10 of her answer the allegations of paragraph 11 of
the petition for forfeiture which referred to the accumulated salaries of respondents Ferdinand E.
Marcos and Imelda R. Marcos.79 The combined accumulated salaries of the Marcos couple were
reflected in the Certification dated May 27, 1986 issued by then Minister of Budget and Management
Alberto Romulo.80 The Certification showed that, from 1966 to 1985, Ferdinand E. Marcos and Imelda R.
Marcos had accumulated salaries in the amount of P1,570,000 and P718,750, respectively, or a total of
P2,288,750:

Ferdinand E. Marcos, as President

1966-1976 at P60,000/year P660,000

1977-1984 at P100,000/year 800,000
1985 at P110,000/year 110,000
P1,570,00

Imelda R. Marcos, as Minister

June 1976-1985 at P75,000/year P718,000

In addition to their accumulated salaries from 1966 to 1985 are the Marcos couple's combined salaries
from January to February 1986 in the amount of P30,833.33. Hence, their total accumulated salaries
amounted to P2,319,583.33. Converted to U.S. dollars on the basis of the corresponding peso-dollar
exchange rates prevailing during the applicable period when said salaries were received, the total
amount had an equivalent value of $304,372.43.

The dollar equivalent was arrived at by using the official annual rates of exchange of the Philippine peso
and the US dollar from 1965 to 1985 as well as the official monthly rates of exchange in January and
February 1986 issued by the Center for Statistical Information of the Bangko Sentral ng Pilipinas.

Prescinding from the aforesaid admissions, Section 4, Rule 129 of the Rules of Court provides that:

Section 4. – Judicial admissions – An admission, verbal or written, made by a party in the course
of the proceedings in the same case does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that no such admission was
made.81

It is settled that judicial admissions may be made: (a) in the pleadings filed by the parties; (b) in the
course of the trial either by verbal or written manifestations or stipulations; or (c) in other stages of
judicial proceedings, as in the pre-trial of the case.82 Thus, facts pleaded in the petition and answer, as in
the case at bar, are deemed admissions of petitioner and respondents, respectively, who are not
permitted to contradict them or subsequently take a position contrary to or inconsistent with such
admissions.83

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The sum of $304,372.43 should be held as the only known lawful income of respondents since they did
not file any Statement of Assets and Liabilities (SAL), as required by law, from which their net worth
could be determined. Besides, under the 1935 Constitution, Ferdinand E. Marcos as President could not
receive "any other emolument from the Government or any of its subdivisions and
instrumentalities".84 Likewise, under the 1973 Constitution, Ferdinand E. Marcos as President could "not
receive during his tenure any other emolument from the Government or any other source."85 In fact, his
management of businesses, like the administration of foundations to accumulate funds, was expressly
prohibited under the 1973 Constitution:

Article VII, Sec. 4(2) – The President and the Vice-President shall not, during their tenure, hold
any other office except when otherwise provided in this Constitution, nor may they practice any
profession, participate directly or indirectly in the management of any business, or be financially
interested directly or indirectly in any contract with, or in any franchise or special privilege
granted by the Government or any other subdivision, agency, or instrumentality thereof,
including any government owned or controlled corporation.

Article VII, Sec. 11 – No Member of the National Assembly shall appear as counsel before any
court inferior to a court with appellate jurisdiction, x x x. Neither shall he, directly or indirectly,
be interested financially in any contract with, or in any franchise or special privilege granted by
the Government, or any subdivision, agency, or instrumentality thereof including any
government owned or controlled corporation during his term of office. He shall not intervene in
any matter before any office of the government for his pecuniary benefit.

Article IX, Sec. 7 – The Prime Minister and Members of the Cabinet shall be subject to the
provision of Section 11, Article VIII hereof and may not appear as counsel before any court or
administrative body, or manage any business, or practice any profession, and shall also be
subject to such other disqualification as may be provided by law.

Their only known lawful income of $304,372.43 can therefore legally and fairly serve as basis for
determining the existence of a prima facie case of forfeiture of the Swiss funds.

Respondents argue that petitioner was not able to establish a prima facie case for the forfeiture of the
Swiss funds since it failed to prove the essential elements under Section 3, paragraphs (c), (d) and (e) of
RA 1379. As the Act is a penal statute, its provisions are mandatory and should thus be construed strictly
against the petitioner and liberally in favor of respondent Marcoses.

We hold that it was not for petitioner to establish the Marcoses' other lawful income or income from
legitimately acquired property for the presumption to apply because, as between petitioner and
respondents, the latter were in a better position to know if there were such other sources of lawful
income. And if indeed there was such other lawful income, respondents should have specifically stated
the same in their answer. Insofar as petitioner Republic was concerned, it was enough to specify the
known lawful income of respondents.

Section 9 of the PCGG Rules and Regulations provides that, in determining prima facie evidence of ill-
gotten wealth, the value of the accumulated assets, properties and other material possessions of those
covered by Executive Order Nos. 1 and 2 must be out of proportion to the known lawful income of such
persons. The respondent Marcos couple did not file any Statement of Assets and Liabilities (SAL) from
which their net worth could be determined. Their failure to file their SAL was in itself a violation of law
and to allow them to successfully assail the Republic for not presenting their SAL would reward them for
their violation of the law.

Further, contrary to the claim of respondents, the admissions made by them in their various pleadings
and documents were valid. It is of record that respondents judicially admitted that the money deposited
with the Swiss banks belonged to them.

We agree with petitioner that respondent Marcoses made judicial admissions of their ownership of the
subject Swiss bank deposits in their answer, the General/Supplemental Agreements, Mrs. Marcos'
Manifestation and Constancia dated May 5, 1999, and the Undertaking dated February 10, 1999. We

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take note of the fact that the Associate Justices of the Sandiganbayan were unanimous in holding that
respondents had made judicial admissions of their ownership of the Swiss funds.

In their answer, aside from admitting the existence of the subject funds, respondents likewise
admitted ownership thereof. Paragraph 22 of respondents' answer stated:

22. Respondents specifically DENY PARAGRAPH 23 insofar as it alleges that respondents

clandestinely stashed the country's wealth in Switzerland and hid the same under layers and
layers of foundations and corporate entities for being false, the truth being that respondents'
aforesaid properties were lawfully acquired. (emphasis supplied)

By qualifying their acquisition of the Swiss bank deposits as lawful, respondents unwittingly admitted
their ownership thereof.

Respondent Mrs. Marcos also admitted ownership of the Swiss bank deposits by failing to deny under
oath the genuineness and due execution of certain actionable documents bearing her signature
attached to the petition. As discussed earlier, Section 11, Rule 886 of the 1997 Rules of Civil Procedure
provides that material averments in the complaint shall be deemed admitted when not specifically
denied.

The General87 and Supplemental88 Agreements executed by petitioner and respondents on December 28,
1993 further bolstered the claim of petitioner Republic that its case for forfeiture was proven in
accordance with the requisites of Sections 2 and 3 of RA 1379. The whereas clause in the General
Agreement declared that:

WHEREAS, the FIRST PARTY has obtained a judgment from the Swiss Federal Tribunal on
December 21, 1990, that the $356 million belongs in principle to the Republic of the Philippines
provided certain conditionalities are met, but even after 7 years, the FIRST PARTY has not been
able to procure a final judgment of conviction against the PRIVATE PARTY.

While the Supplemental Agreement warranted, inter alia, that:

In consideration of the foregoing, the parties hereby agree that the PRIVATE PARTY shall be
entitled to the equivalent of 25% of the amount that may be eventually withdrawn from said
$356 million Swiss deposits.

The stipulations set forth in the General and Supplemental Agreements undeniably indicated the
manifest intent of respondents to enter into a compromise with petitioner. Corollarily, respondents'
willingness to agree to an amicable settlement with the Republic only affirmed their ownership of the
Swiss deposits for the simple reason that no person would acquiesce to any concession over such huge
dollar deposits if he did not in fact own them.

Respondents make much capital of the pronouncement by this Court that the General and
Supplemental Agreements were null and void.89 They insist that nothing in those agreements could thus
be admitted in evidence against them because they stood on the same ground as an accepted offer
which, under Section 27, Rule 13090 of the 1997 Rules of Civil Procedure, provides that "in civil cases, an
offer of compromise is not an admission of any liability and is not admissible in evidence against the
offeror."

We find no merit in this contention. The declaration of nullity of said agreements was premised on the
following constitutional and statutory infirmities: (1) the grant of criminal immunity to the Marcos heirs
was against the law; (2) the PCGG's commitment to exempt from all forms of taxes the properties to be
retained by the Marcos heirs was against the Constitution; and (3) the government's undertaking to
cause the dismissal of all cases filed against the Marcoses pending before the Sandiganbayan and other
courts encroached on the powers of the judiciary. The reasons relied upon by the Court never in the least
bit even touched on the veracity and truthfulness of respondents' admission with respect to their
ownership of the Swiss funds. Besides, having made certain admissions in those agreements,

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respondents cannot now deny that they voluntarily admitted owning the subject Swiss funds,
notwithstanding the fact that the agreements themselves were later declared null and void.

The following observation of Sandiganbayan Justice Catalino Castañeda, Jr. in the decision dated
September 19, 2000 could not have been better said:

x x x The declaration of nullity of the two agreements rendered the same without legal effects
but it did not detract from the admissions of the respondents contained therein. Otherwise
stated, the admissions made in said agreements, as quoted above, remain binding on the
respondents.91

A written statement is nonetheless competent as an admission even if it is contained in a document

which is not itself effective for the purpose for which it is made, either by reason of illegality, or
incompetency of a party thereto, or by reason of not being signed, executed or delivered. Accordingly,
contracts have been held as competent evidence of admissions, although they may be unenforceable.92

The testimony of respondent Ferdinand Marcos, Jr. during the hearing on the motion for the approval of
the Compromise Agreement on April 29, 1998 also lent credence to the allegations of petitioner
Republic that respondents admitted ownership of the Swiss bank accounts. We quote the salient
portions of Ferdinand Jr.'s formal declarations in open court:

ATTY. FERNANDO:

Mr. Marcos, did you ever have any meetings with PCGG Chairman Magtanggol C.
Gunigundo?

F. MARCOS, JR.:

Yes. I have had very many meetings in fact with Chairman.

ATTY. FERNANDO:

Would you recall when the first meeting occurred?

PJ GARCHITORENA:

In connection with what?

ATTY. FERNANDO:

In connection with the ongoing talks to compromise the various cases initiated by PCGG
against your family?

F. MARCOS, JR.:

The nature of our meetings was solely concerned with negotiations towards achieving
some kind of agreement between the Philippine government and the Marcos family.
The discussions that led up to the compromise agreement were initiated by our then
counsel Atty. Simeon Mesina x x x.93

xxx xxx xxx

ATTY. FERNANDO:

What was your reaction when Atty. Mesina informed you of this possibility?

F. MARCOS, JR.:

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 My reaction to all of these approaches is that I am always open, we are always open, we
are very much always in search of resolution to the problem of the family and any
approach that has been made us, we have entertained. And so my reaction was the
same as what I have always … why not? Maybe this is the one that will finally put an end
to this problem.94

xxx xxx xxx

ATTY. FERNANDO:

Basically, what were the true amounts of the assets in the bank?

PJ GARCHITORENA:

So, we are talking about liquid assets here? Just Cash?

F. MARCOS, JR.:

Well, basically, any assets. Anything that was under the Marcos name in any of the
banks in Switzerland which may necessarily be not cash.95

xxx xxx xxx

PJ GARCHITORENA:

x x x What did you do in other words, after being apprised of this contract in connection
herewith?

F. MARCOS, JR.:

I assumed that we are beginning to implement the agreement because this was
forwarded through the Philippine government lawyers through our lawyers and then,
subsequently, to me. I was a little surprised because we hadn't really discussed the
details of the transfer of the funds, what the bank accounts, what the mechanism would
be. But nevertheless, I was happy to see that as far as the PCGG is concerned, that the
agreement was perfected and that we were beginning to implement it and that was a
source of satisfaction to me because I thought that finally it will be the end.96

Ferdinand Jr.'s pronouncements, taken in context and in their entirety, were a confirmation of
respondents' recognition of their ownership of the Swiss bank deposits. Admissions of a party in his
testimony are receivable against him. If a party, as a witness, deliberately concedes a fact, such
concession has the force of a judicial admission.97 It is apparent from Ferdinand Jr.'s testimony that the
Marcos family agreed to negotiate with the Philippine government in the hope of finally putting an end
to the problems besetting the Marcos family regarding the Swiss accounts. This was doubtlessly an
acknowledgment of ownership on their part. The rule is that the testimony on the witness stand
partakes of the nature of a formal judicial admission when a party testifies clearly and unequivocally to a
fact which is peculiarly within his own knowledge.98

In her Manifestation99 dated May 26, 1998, respondent Imelda Marcos furthermore revealed the
following:

That respondent Imelda R. Marcos owns 90% of the subject matter of the above-entitled case,
being the sole beneficiary of the dollar deposits in the name of the various foundations alleged
in the case;

That in fact only 10% of the subject matter in the above-entitled case belongs to the estate of
the late President Ferdinand E. Marcos;

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 xxx xxx xxx

Respondents' ownership of the Swiss bank accounts as borne out by Mrs. Marcos' manifestation is as
bright as sunlight. And her claim that she is merely a beneficiary of the Swiss deposits is belied by her
own signatures on the appended copies of the documents substantiating her ownership of the funds in
the name of the foundations. As already mentioned, she failed to specifically deny under oath the
authenticity of such documents, especially those involving "William Saunders" and "Jane Ryan" which
actually referred to Ferdinand Marcos and Imelda Marcos, respectively. That failure of Imelda Marcos to
specifically deny the existence, much less the genuineness and due execution, of the instruments
bearing her signature, was tantamount to a judicial admission of the genuineness and due execution of
said instruments, in accordance with Section 8, Rule 8100 of the 1997 Rules of Civil Procedure.

Likewise, in her Constancia101 dated May 6, 1999, Imelda Marcos prayed for the approval of the
Compromise Agreement and the subsequent release and transfer of the $150 million to the rightful
owner. She further made the following manifestations:

xxx xxx xxx

2. The Republic's cause of action over the full amount is its forfeiture in favor of the government
if found to be ill-gotten. On the other hand, the Marcoses defend that it is a legitimate asset.
Therefore, both parties have an inchoate right of ownership over the account. If it turns out that
the account is of lawful origin, the Republic may yield to the Marcoses. Conversely, the
Marcoses must yield to the Republic. (underscoring supplied)

xxx xxx xxx

3. Consistent with the foregoing, and the Marcoses having committed themselves to helping the
less fortunate, in the interest of peace, reconciliation and unity, defendant MADAM IMELDA
ROMUALDEZ MARCOS, in firm abidance thereby, hereby affirms her agreement with the
Republic for the release and transfer of the US Dollar 150 million for proper disposition, without
prejudice to the final outcome of the litigation respecting the ownership of the remainder.

Again, the above statements were indicative of Imelda's admission of the Marcoses' ownership of the
Swiss deposits as in fact "the Marcoses defend that it (Swiss deposits) is a legitimate (Marcos) asset."

On the other hand, respondents Maria Imelda Marcos-Manotoc, Ferdinand Marcos, Jr. and Maria Irene
Marcos-Araneta filed a motion102 on May 4, 1998 asking the Sandiganbayan to place the res (Swiss
deposits) in custodia legis:

7. Indeed, the prevailing situation is fraught with danger! Unless the aforesaid Swiss deposits are
placed in custodia legis or within the Court's protective mantle, its dissipation or
misappropriation by the petitioner looms as a distinct possibility.

Such display of deep, personal interest can only come from someone who believes that he has a marked
and intimate right over the considerable dollar deposits. Truly, by filing said motion, the Marcos children
revealed their ownership of the said deposits.

Lastly, the Undertaking103 entered into by the PCGG, the PNB and the Marcos foundations on February
10, 1999, confirmed the Marcoses' ownership of the Swiss bank deposits. The subject Undertaking
brought to light their readiness to pay the human rights victims out of the funds held in escrow in the
PNB. It stated:

WHEREAS, the Republic of the Philippines sympathizes with the plight of the human rights
victims-plaintiffs in the aforementioned litigation through the Second Party, desires to assist in
the satisfaction of the judgment awards of said human rights victims-plaintiffs, by releasing,
assigning and or waiving US$150 million of the funds held in escrow under the Escrow
Agreements dated August 14, 1995, although the Republic is not obligated to do so under final
judgments of the Swiss courts dated December 10 and 19, 1997, and January 8, 1998;

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 WHEREAS, the Third Party is likewise willing to release, assign and/or waive all its rights and
interests over said US$150 million to the aforementioned human rights victims-plaintiffs.

All told, the foregoing disquisition negates the claim of respondents that "petitioner failed to prove that
they acquired or own the Swiss funds" and that "it was only by arbitrarily isolating and taking certain
statements made by private respondents out of context that petitioner was able to treat these as
judicial admissions." The Court is fully aware of the relevance, materiality and implications of every
pleading and document submitted in this case. This Court carefully scrutinized the proofs presented by
the parties. We analyzed, assessed and weighed them to ascertain if each piece of evidence rightfully
qualified as an admission. Owing to the far-reaching historical and political implications of this case, we
considered and examined, individually and totally, the evidence of the parties, even if it might have
bordered on factual adjudication which, by authority of the rules and jurisprudence, is not usually done
by this Court. There is no doubt in our mind that respondent Marcoses admitted ownership of the Swiss
bank deposits.

We have always adhered to the familiar doctrine that an admission made in the pleadings cannot be
controverted by the party making such admission and becomes conclusive on him, and that all proofs
submitted by him contrary thereto or inconsistent therewith should be ignored, whether an objection is
interposed by the adverse party or not.104 This doctrine is embodied in Section 4, Rule 129 of the Rules
of Court:

SEC. 4. Judicial admissions. ─ An admission, verbal or written, made by a party in the course of
the proceedings in the same case, does not require proof. The admission may be contradicted
only by showing that it was made through palpable mistake or that no such admission was
made.105

In the absence of a compelling reason to the contrary, respondents' judicial admission of ownership of
the Swiss deposits is definitely binding on them.

The individual and separate admissions of each respondent bind all of them pursuant to Sections 29 and
31, Rule 130 of the Rules of Court:

SEC. 29. Admission by co-partner or agent. ─ The act or declaration of a partner or agent of the
party within the scope of his authority and during the existence of the partnership or agency,
may be given in evidence against such party after the partnership or agency is shown by
evidence other than such act or declaration. The same rule applies to the act or declaration of a
joint owner, joint debtor, or other person jointly interested with the party.106

SEC. 31. Admission by privies. ─ Where one derives title to property from another, the act,
declaration, or omission of the latter, while holding the title, in relation to the property, is
evidence against the former.107

The declarations of a person are admissible against a party whenever a "privity of estate" exists
between the declarant and the party, the term "privity of estate" generally denoting a succession in
rights.108 Consequently, an admission of one in privity with a party to the record is
competent.109 Without doubt, privity exists among the respondents in this case. And where several co-
parties to the record are jointly interested in the subject matter of the controversy, the admission of one
is competent against all.110

Respondents insist that the Sandiganbayan is correct in ruling that petitioner Republic has failed to
establish a prima facie case for the forfeiture of the Swiss deposits.

We disagree. The sudden turn-around of the Sandiganbayan was really strange, to say the least, as its
findings and conclusions were not borne out by the voluminous records of this case.

Section 2 of RA 1379 explicitly states that "whenever any public officer or employee has acquired during
his incumbency an amount of property which is manifestly out of proportion to his salary as such public

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officer or employee and to his other lawful income and the income from legitimately acquired property,
said property shall be presumed prima facie to have been unlawfully acquired. x x x"

The elements which must concur for this prima facie presumption to apply are:

(1) the offender is a public officer or employee;

(2) he must have acquired a considerable amount of money or property during his incumbency;
and

(3) said amount is manifestly out of proportion to his salary as such public officer or employee
and to his other lawful income and the income from legitimately acquired property.

It is undisputed that spouses Ferdinand and Imelda Marcos were former public officers. Hence, the first
element is clearly extant.

The second element deals with the amount of money or property acquired by the public officer during
his incumbency. The Marcos couple indubitably acquired and owned properties during their term of
office. In fact, the five groups of Swiss accounts were admittedly owned by them. There is proof of the
existence and ownership of these assets and properties and it suffices to comply with the second
element.

The third requirement is met if it can be shown that such assets, money or property is manifestly out of
proportion to the public officer's salary and his other lawful income. It is the proof of this third element
that is crucial in determining whether a prima facie presumption has been established in this case.

Petitioner Republic presented not only a schedule indicating the lawful income of the Marcos spouses
during their incumbency but also evidence that they had huge deposits beyond such lawful income in
Swiss banks under the names of five different foundations. We believe petitioner was able to establish
the prima facie presumption that the assets and properties acquired by the Marcoses were manifestly
and patently disproportionate to their aggregate salaries as public officials. Otherwise stated, petitioner
presented enough evidence to convince us that the Marcoses had dollar deposits amounting to US $356
million representing the balance of the Swiss accounts of the five foundations, an amount way, way
beyond their aggregate legitimate income of only US$304,372.43 during their incumbency as
government officials.

Considering, therefore, that the total amount of the Swiss deposits was considerably out of proportion
to the known lawful income of the Marcoses, the presumption that said dollar deposits were unlawfully
acquired was duly established. It was sufficient for the petition for forfeiture to state the approximate
amount of money and property acquired by the respondents, and their total government salaries.
Section 9 of the PCGG Rules and Regulations states:

Prima Facie Evidence. – Any accumulation of assets, properties, and other material possessions
of those persons covered by Executive Orders No. 1 and No. 2, whose value is out of proportion
to their known lawful income is prima facie deemed ill-gotten wealth.

Indeed, the burden of proof was on the respondents to dispute this presumption and show by clear and
convincing evidence that the Swiss deposits were lawfully acquired and that they had other legitimate
sources of income. A presumption is prima facie proof of the fact presumed and, unless the fact
thus prima facie established by legal presumption is disproved, it must stand as proved.111

Respondent Mrs. Marcos argues that the foreign foundations should have been impleaded as they were
indispensable parties without whom no complete determination of the issues could be made. She
asserts that the failure of petitioner Republic to implead the foundations rendered the judgment void as
the joinder of indispensable parties was a sine qua non exercise of judicial power. Furthermore, the non-
inclusion of the foreign foundations violated the conditions prescribed by the Swiss government
regarding the deposit of the funds in escrow, deprived them of their day in court and denied them their
rights under the Swiss constitution and international law.112

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The Court finds that petitioner Republic did not err in not impleading the foreign foundations. Section 7,
Rule 3 of the 1997 Rules of Civil Procedure,113 taken from Rule 19b of the American Federal Rules of Civil
Procedure, provides for the compulsory joinder of indispensable parties. Generally, an indispensable
party must be impleaded for the complete determination of the suit. However, failure to join an
indispensable party does not divest the court of jurisdiction since the rule regarding indispensable
parties is founded on equitable considerations and is not jurisdictional. Thus, the court is not divested of
its power to render a decision even in the absence of indispensable parties, though such judgment is not
binding on the non-joined party.114

An indispensable party115 has been defined as one:

[who] must have a direct interest in the litigation; and if this interest is such that it cannot be
separated from that of the parties to the suit, if the court cannot render justice between the
parties in his absence, if the decree will have an injurious effect upon his interest, or if the final
determination of the controversy in his absence will be inconsistent with equity and good
conscience.

There are two essential tests of an indispensable party: (1) can relief be afforded the plaintiff without
the presence of the other party? and (2) can the case be decided on its merits without prejudicing the
rights of the other party?116 There is, however, no fixed formula for determining who is an indispensable
party; this can only be determined in the context and by the facts of the particular suit or litigation.

In the present case, there was an admission by respondent Imelda Marcos in her May 26, 1998
Manifestation before the Sandiganbayan that she was the sole beneficiary of 90% of the subject matter
in controversy with the remaining 10% belonging to the estate of Ferdinand Marcos.117 Viewed against
this admission, the foreign foundations were not indispensable parties. Their non-participation in the
proceedings did not prevent the court from deciding the case on its merits and according full relief to
petitioner Republic. The judgment ordering the return of the $356 million was neither inimical to the
foundations' interests nor inconsistent with equity and good conscience. The admission of respondent
Imelda Marcos only confirmed what was already generally known: that the foundations were
established precisely to hide the money stolen by the Marcos spouses from petitioner Republic. It
negated whatever illusion there was, if any, that the foreign foundations owned even a nominal part of
the assets in question.

The rulings of the Swiss court that the foundations, as formal owners, must be given an opportunity to
participate in the proceedings hinged on the assumption that they owned a nominal share of the
assets.118 But this was already refuted by no less than Mrs. Marcos herself. Thus, she cannot now argue
that the ruling of the Sandiganbayan violated the conditions set by the Swiss court. The directive given
by the Swiss court for the foundations to participate in the proceedings was for the purpose of
protecting whatever nominal interest they might have had in the assets as formal owners. But inasmuch
as their ownership was subsequently repudiated by Imelda Marcos, they could no longer be considered
as indispensable parties and their participation in the proceedings became unnecessary.

In Republic vs. Sandiganbayan,119 this Court ruled that impleading the firms which are the res of the
action was unnecessary:

"And as to corporations organized with ill-gotten wealth, but are not themselves guilty of
misappropriation, fraud or other illicit conduct – in other words, the companies themselves are
not the object or thing involved in the action, the res thereof – there is no need to implead them
either. Indeed, their impleading is not proper on the strength alone of their having been formed
with ill-gotten funds, absent any other particular wrongdoing on their part…

Such showing of having been formed with, or having received ill-gotten funds, however strong
or convincing, does not, without more, warrant identifying the corporations in question with the
person who formed or made use of them to give the color or appearance of lawful, innocent
acquisition to illegally amassed wealth – at the least, not so as place on the Government the
onus of impleading the former with the latter in actions to recover such wealth. Distinguished in
terms of juridical personality and legal culpability from their erring members or stockholders,

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 said corporations are not themselves guilty of the sins of the latter, of the embezzlement,
asportation, etc., that gave rise to the Government's cause of action for recovery; their creation
or organization was merely the result of their members' (or stockholders') manipulations and
maneuvers to conceal the illegal origins of the assets or monies invested therein. In this light,
they are simply the res in the actions for the recovery of illegally acquired wealth, and there is,
in principle, no cause of action against them and no ground to implead them as defendants in
said actions."

Just like the corporations in the aforementioned case, the foreign foundations here were set up to
conceal the illegally acquired funds of the Marcos spouses. Thus, they were simply the res in the action
for recovery of ill-gotten wealth and did not have to be impleaded for lack of cause of action or ground
to implead them.

Assuming arguendo, however, that the foundations were indispensable parties, the failure of petitioner
to implead them was a curable error, as held in the previously cited case of Republic vs.
Sandiganbayan:120

"Even in those cases where it might reasonably be argued that the failure of the Government to
implead the sequestered corporations as defendants is indeed a procedural abberation, as
where said firms were allegedly used, and actively cooperated with the defendants, as
instruments or conduits for conversion of public funds and property or illicit or fraudulent
obtention of favored government contracts, etc., slight reflection would nevertheless lead to the
conclusion that the defect is not fatal, but one correctible under applicable adjective rules – e.g.,
Section 10, Rule 5 of the Rules of Court [specifying the remedy of amendment during trial to
authorize or to conform to the evidence]; Section 1, Rule 20 [governing amendments before
trial], in relation to the rule respecting omission of so-called necessary or indispensable parties,
set out in Section 11, Rule 3 of the Rules of Court. It is relevant in this context to advert to the
old familiar doctrines that the omission to implead such parties "is a mere technical defect
which can be cured at any stage of the proceedings even after judgment"; and that, particularly
in the case of indispensable parties, since their presence and participation is essential to the
very life of the action, for without them no judgment may be rendered, amendments of the
complaint in order to implead them should be freely allowed, even on appeal, in fact even after
rendition of judgment by this Court, where it appears that the complaint otherwise indicates
their identity and character as such indispensable parties."121

Although there are decided cases wherein the non-joinder of indispensable parties in fact led to the
dismissal of the suit or the annulment of judgment, such cases do not jibe with the matter at hand. The
better view is that non-joinder is not a ground to dismiss the suit or annul the judgment. The rule on
joinder of indispensable parties is founded on equity. And the spirit of the law is reflected in Section 11,
Rule 3122 of the 1997 Rules of Civil Procedure. It prohibits the dismissal of a suit on the ground of non-
joinder or misjoinder of parties and allows the amendment of the complaint at any stage of the
proceedings, through motion or on order of the court on its own initiative.123

Likewise, jurisprudence on the Federal Rules of Procedure, from which our Section 7, Rule 3124 on
indispensable parties was copied, allows the joinder of indispensable parties even after judgment has
been entered if such is needed to afford the moving party full relief.125 Mere delay in filing the joinder
motion does not necessarily result in the waiver of the right as long as the delay is excusable.126 Thus,
respondent Mrs. Marcos cannot correctly argue that the judgment rendered by the Sandiganbayan was
void due to the non-joinder of the foreign foundations. The court had jurisdiction to render judgment
which, even in the absence of indispensable parties, was binding on all the parties before it though not
on the absent party.127 If she really felt that she could not be granted full relief due to the absence of the
foreign foundations, she should have moved for their inclusion, which was allowable at any stage of the
proceedings. She never did. Instead she assailed the judgment rendered.

In the face of undeniable circumstances and the avalanche of documentary evidence against them,
respondent Marcoses failed to justify the lawful nature of their acquisition of the said assets. Hence, the
Swiss deposits should be considered ill-gotten wealth and forfeited in favor of the State in accordance
with Section 6 of RA 1379:

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 SEC. 6. Judgment.─ If the respondent is unable to show to the satisfaction of the court that he
has lawfully acquired the property in question, then the court shall declare such property
forfeited in favor of the State, and by virtue of such judgment the property aforesaid shall
become property of the State x x x.

THE FAILURE TO PRESENT AUTHENTICATED TRANSLATIONS OF THE SWISS DECISIONS

Finally, petitioner Republic contends that the Honorable Sandiganbayan Presiding Justice Francis
Garchitorena committed grave abuse of discretion in reversing himself on the ground that the original
copies of the authenticated Swiss decisions and their authenticated translations were not submitted to
the court a quo. Earlier PJ Garchitorena had quoted extensively from the unofficial translation of one of
these Swiss decisions in his ponencia dated July 29, 1999 when he denied the motion to release US$150
Million to the human rights victims.

While we are in reality perplexed by such an incomprehensible change of heart, there might
nevertheless not be any real need to belabor the issue. The presentation of the authenticated
translations of the original copies of the Swiss decision was not de rigueur for the public respondent to
make findings of fact and reach its conclusions. In short, the Sandiganbayan's decision was not
dependent on the determination of the Swiss courts. For that matter, neither is this Court's.

The release of the Swiss funds held in escrow in the PNB is dependent solely on the decision of this
jurisdiction that said funds belong to the petitioner Republic. What is important is our own assessment
of the sufficiency of the evidence to rule in favor of either petitioner Republic or respondent Marcoses.
In this instance, despite the absence of the authenticated translations of the Swiss decisions, the
evidence on hand tilts convincingly in favor of petitioner Republic.

WHEREFORE, the petition is hereby GRANTED. The assailed Resolution of the Sandiganbayan dated
January 31, 2002 is SET ASIDE. The Swiss deposits which were transferred to and are now deposited in
escrow at the Philippine National Bank in the estimated aggregate amount of US$658,175,373.60 as of
January 31, 2002, plus interest, are hereby forfeited in favor of petitioner Republic of the Philippines.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Panganiban, Ynares-Santiago, Austria-Martinez, Carpio-Morales, Callejo, Sr.,
Azcuna, and Tinga, JJ., concur.
Puno, and Vitug, JJ., in the result
Quisumbing, Sandoval-Gutierrez, J., on official leave.
Carpio, J., no part.

[G.R. No. 114427. February 6, 1995.]

ARMANDO GEAGONIA, Petitioner, v. COURT OF APPEALS and COUNTRY BANKERS INSURANCE

CORPORATION, Respondents.

SYLLABUS

1. COMMERCIAL LAW; INSURANCE; "OTHER INSURANCE" CLAUSE AS A CONDITION; ALLOWED TO

PREVENT AN INCREASE IN THE MORAL HAZARD. — The Insurance Commission found that the petitioner
had no knowledge of the previous two policies. The Court of Appeals disagreed and found otherwise in
view of the explicit admission by the petitioner in his letter to the private respondent of 18 January 1991,
which was quoted in the challenged decision of the Court of Appeals. These divergent findings of fact
constitute an exception to the general rule that in petitions for review under Rule 45, only questions of
law are involved and findings of fact by the Court of Appeals are conclusive and binding upon this Court.
We agree with the Court of Appeals that the petitioner knew of the prior policies issued by the PFIC. His
letter of 18 January 1991 to the private respondent conclusive proves this knowledge. His testimony to
the contrary before the Insurance Commissioner and which the latter relied upon cannot prevail over a

231
written admission made ante litem motam. It was, indeed, incredible that he did not know about the
prior policies since these policies were not new or original. Policy No. GA-28144 was a renewal of Policy
No. F-24758, while Policy No. GA-28146 had been renewed twice, the previous policy being F-24792.
Condition 3 of the private respondent’s Policy No. F-14622 is a condition which is nor proscribed by law.
Its incorporation in the policy is allowed by Section 75 of the Insurance Code which provides that" [a]
policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breach of
an immaterial provision does not avoid the policy." Such a condition is a provision which invariably
appears in fire insurance policies and is intended to prevent an increase in the moral hazard. It is
commonly known as the additional or "other insurance" clause and has been upheld as valid and as a
warranty that no other insurance exists. Its violation would thus avoid the policy. However, in order to
constitute a violation, the other insurance must be upon the same subject matter, the same interest
therein, and the same risk.

2. ID.; ID.; ID.; CONCEPT; GENERAL INSURANCE AND SURETY CORP. v. NG HUA (106 PHIL. 1117); NOT
APPLICABLE IN CASE AT BAR. — It must, however, be underscored that unlike the "other insurance"
clauses involved in General Insurance and Surety Corp. v. Ng Hua (106 Phil. 1117) or in Pioneer
Insurance & Surety Corp. v. Yap, which read: "The insured shall give notice to the company of any
insurance already effected, or which may subsequently be effected covering any of the property hereby
insured, and unless such notice be given and the particulars of such insurance or insurances be stated in
or endorsed on this Policy by or on behalf of the Company before the occurrence of any loss or damage,
all benefits under this Policy shall be forfeited." or in the 1930 case of Santa Ana v. Commercial Union
Assurance Co. (55 Phil 329, 334 [1930]) which provided "that any outstanding insurance upon the whole
or a portion of the objects thereby assured must be declared by the insured in writing and he must
cause the company to add or insert it in the policy, without which such policy shall be null and void, and
the insured will not be entitled to indemnity in case of loss," Condition 3 in the private respondent’s
policy No. F-14622 does not absolutely declare void any violation thereof. It expressly provides that the
condition "shall not apply when the total insurance or insurances in force at the time of the loss damage
is not more than P200,000.00."cralaw virtua1aw library

3. ID.; ID.; CONTRACT THEREOF MUST BE LIBERALLY CONSTRUED. — It is a cardinal rule on insurance
that a policy or insurance contract is to be interpreted liberally in favor of the insured and strictly against
the company, the reason being, undoubtedly, to afford the greatest protection which the insured was
endeavoring to secure when he applied for insurance. It is also a cardinal principle of law that forfeitures
are not favored and that any construction which would result in the forfeiture of the policy benefits for
the person claiming thereunder, will be avoided, if it possible to construe the policy in a manner which
would permit recovery, as, for example, by finding a waiver for such forfeiture. Stated differently,
provisions, conditions or exceptions in policies which tend to work a forfeiture of insurance policies
should be construed most strictly against those for whose benefits they are inserted, and most favorably
toward those against whom they are intended to operate. The reason for this it that, except for riders
which may later be inserted, the insured sees the contract already in its final form and has had no voice
in the selection or arrangement of the words employed therein. On the other hand, the language of the
contract was carefully chosen and deliberated upon by experts and legal advisers who had acted
exclusively in the interest of the insurers and the technical language employed therein is rarely
understood by ordinary laymen.

4. ID.; ID.; INSURABLE INTEREST; EXTENT THEREOF BY MORTGAGEE AND MORTGAGOR; RULE. — As to a
mortgaged property, the mortgagor and the mortgagee have each an independent insurable interest
therein and both interests may be covered by one policy, or each may take out a separate policy
covering his interest, either at the same or at separate times. The mortgagor’s insurable interest covers
the full value of the mortgaged property, even though the mortgage debt is equivalent to the full value
of the property. The mortgagee’s insurable interest is to the extent of the debt, since the property is
relied upon as security thereof, and in insuring he is not insuring the property but his interest or lien
thereon. His insurable interest is prima facie the value mortgaged and extends only to the amount of the
debt, not exceeding the value of the mortgaged property. Thus, separate insurances covering different
insurable interests may be obtained by the mortgagor and the mortgagee.

5. ID.; ID.; RULE WHEN A MORTGAGOR OBTAINED THEREOF FOR THE BENEFIT OF THE MORTGAGEE. — A
mortgagor may, however, take out insurance for the benefit of the mortgagee, which is the usual

232
practice. The mortgagee may be made the beneficial payee in several ways. He may become the
assignee of the policy with the consent of the insurer; or the mere pledgee without such consent; or the
original policy may contain a mortgage clause; or a rider making the policy payable to the mortgagee "as
his interest may appear" may be attached; or a "standard mortgage clause," containing a collateral
independent contract between the mortgagee and insurer, may be attached; or the policy, though by its
terms payable absolutely to the mortgagor, may have been procured by a mortgagor under a contract
duty to insure for the mortgagee’s benefit, in which case the mortgagee acquires an equitable lien upon
the proceeds. In the policy obtained by the mortgagor with loss payable clause in favor of the
mortgagee as his interest may appear, the mortgagee is only a beneficiary under the contract, and
recognized as such by the insurer but not made a party to the contract itself. Hence, any act of the
mortgagor which defeats his right will also defeat the right of the mortgagee. This kind of policy covers
only such interest as the mortgagee has at the issuing of the policy. On the other hand, a mortgagee
may also procure a policy as a contracting party in accordance with the terms of an agreement by which
the mortgagor is to pay the premiums upon such insurance. It has been noted, however, that although
the mortgagee is himself the insured, as where he applies for a policy, fully informs the authorized agent
of his interest, pays the premiums, and obtains a policy on the assurance that it insures him, the policy is
in fact in the form used to insure a mortgagor with loss payable clause.

6. ID.; ID.; DOUBLE INSURANCE; DOES NOT EXIST WHEN TWO (2) POLICIES DO NOT COVER THE SALE
INTEREST; CASE AT BAR. — We are of the opinion that Condition 3 of the subject policy is not totally free
from ambiguity and must, perforce, be meticulously analyzed. Such analysis leads us to conclude that (a)
the prohibition applies only to double insurance, and (b) the nullity of the policy shall only be to the
extent exceeding P200,000.00 of the total policies obtained. The first conclusion is supported by the
portion of the condition referring to other insurance "covering any of the property or properties
consisting of stocks in trade, goods in process and/or inventories only hereby insured," and the portion
regarding the insured’s declaration on the subheading CO-INSURANCE that the co-insurer is Mercantile
Insurance Co., Inc. in the sum of P50,000.00. A double insurance exists where the same person is insured
by several insurers separately in respect of the same subject and interest. As earlier stated, the insurable
interests of a mortgagor and a mortgagee on the mortgaged property are distinct and separate. Since
the two policies of the PFIC do not cover the same interest as that covered by the policy of the private
respondent, no double insurance exists. The non-disclosure then of the former policies was not fatal to
the petitioner’s right to recover on the private respondent’s policy. Furthermore, by stating within
Condition 3 itself that such condition shall not apply if the total insurance in force at the time of loss
does not exceed P200,000.00, the private respondent was amenable to assume a co-insurer’s liability up
to a loss not exceeding to P200,000.00. What it had in mind was to discourage over-insurance. Indeed,
the rationale behind the incorporation of "other insurance" clause in fire policies is to prevent over-
insurance and thus avert the perpetration of fraud. When a property owner obtains insurance from two
or more insurers in a total amount that exceeds the property’s value, the insured may have an
inducement to destroy the property for the purpose of collecting the insurance. The public as well as the
insurer is interested in preventing a situation in which a fire would be profitable to the insured.

DECISION

DAVIDE, JR., J.:

For our review under Rule 45 of the Rules of Court is the decision 1 of the Court of Appeals in CA-G.R. SP
No. 31916, entitled "Country Bankers Insurance Corporation versus Armando Geagonia," reversing the
decision of the Insurance Commission in I.C. Case No. 3340 which awarded the claim of petitioner
Armando Geagonia against private respondent Country Bankers Insurance Corporation.

The petitioner is the owner of Norman’s Mart located in the public market of San Francisco, Agusan del
Sur. On 22 December 1989, he obtained from the private respondent fire insurance policy No. F-14622 2
for P100,000.00. The period of the policy was from 22 December 1989 to 22 December 1990 and
covered the following: "Stock-in-trade consisting principally of dry goods such as RTW’s for men and
women wear and other usual to assured’s business." chanroblesvirtuallawlibrary

233
The petitioner declared in the policy under the subheading entitled CO-INSURANCE that Mercantile
Insurance Co., Inc. was the co-insurer for P50,000.00. From 1989 to 1990, the petitioner had in his
inventory stocks amounting to P392,130.50, itemized as follows:chanrob1es virtual 1aw library

Zenco Sales, Inc. P55,698.00

F. Legaspi Gen. Merchandise 86,432.50

Cebu Tesing Textiles 250,000.00 (on credit)

========

P392,130.50

The policy contained the following condition:jgc:chanrobles.com.ph

"3. The insured shall give notice to the Company of any insurance or insurances already effected, or
which may subsequently be effected, covering any of the property or properties consisting of stocks in
trade, goods in process and/or inventories only hereby insured, and unless notice be given and the
particulars of such insurance or insurances be stated therein or endorsed in this policy pursuant to
Section 50 of the Insurance Code, by or on behalf of the Company before the occurrence of any loss or
damage, all benefits under this policy shall be deemed forfeited, provided however, that this condition
shall not apply when the total insurance or insurances in force at the time of the loss or damage is not
more than P200,000.00." chanroblesvirtuallawlibrary

On 27 May 1990, fire of accidental origin broke out at around 7:30 p.m. at the public market of San
Francisco, Agusan del Sur. The petitioner’s insured stocks-in-trade were completely destroyed
prompting him to file with the private respondent a claim under the policy. On 28 December 1990, the
private respondent denied the claim because it found that at the time of the loss the petitioner’s stocks-
in-trade were likewise covered by fire insurance policies No. GA-28146 and No. GA-28144, for
P100,000.00 each, issued by the Cebu Branch of the Philippines First Insurance Co., Inc. (hereinafter
PFIC). 3 These policies indicate that the insured was "Messrs. Discount Mart (Mr. Armando Geagonia,
Prop.)" with a mortgage clause reading:jgc:chanrobles.com.ph

"MORTGAGEE: Loss, if any, shall be payable to Messrs.

Cebu Tesing Textiles, Cebu City as their

interest may appear subject to the terms of

this policy. CO-INSURANCE DECLARED:chanrob1es virtual 1aw library

P100,000. — Phils. First CEB/F-24758" 4

The basis of the private respondent’s denial was the petitioner’s alleged violation of Condition 3 of the
policy.

The petitioner then filed a complaint 5 against the private respondent with the Insurance Commission
(Case No. 3340) for the recovery of P100,000.00 under fire insurance policy No. F-14622 and for
attorney’s fees and costs of litigation. He attached as Annex "M" 6 thereof his letter of 18 January 1991
which asked for the reconsideration of the denial. He admitted in the said letter that at the time he
obtained the private respondent’s fire insurance policy he knew that the two policies issued by the PFIC
were already in existence; however, he had no knowledge of the provision in the private respondent’s
policy requiring him to inform it of the prior policies; this requirement was not mentioned to him by the
private respondent’s agent; and had it been so mentioned, he would not have withheld such
information. He further asserted that the total of the amounts claimed under the three policies was
below the actual value of his stocks at the time of loss, which was P1,000,000.00

234
In its answer, 7 the private respondent specifically denied the allegations in the complaint and set up as
its principal defense the violation of Condition 3 of the policy.

In its decision of 21 June 1993, 8 the Insurance Commission found that the petitioner did not violate
Condition 3 as he had no knowledge of the existence of the two fire insurance policies obtained from
the PFIC; that it was Cebu Tesing Textiles which procured the PFIC policies without informing him or
securing his consent; and that Cebu Tesing Textile, as his creditor, had insurable interest on the stocks.
These findings were based on the petitioner’s testimony that he came to know of the PFIC policies only
when he filed his claim with the private respondent and that Cebu Tesing Textile obtained them and
paid for their premiums without informing him thereof. The Insurance Commission then
decreed:chanroblesvirtuallawlibrary

"WHEREFORE, judgment is hereby rendered ordering the respondent company to pay complainant the
sum of P100,000.00 with legal interest from the time the complaint was filed until fully satisfied plus the
amount of P10,000.00 as attorney’s fees. With costs. The compulsory counterclaim of respondent is
hereby dismissed."cralaw virtua1aw library

Its motion for the reconsideration of the decision 9 having been denied by the Insurance Commission in
its resolution of 20 August 1993, 10 the private respondent appealed to the Court of Appeals by way of a
petition for review. The petition was docketed as CA-G.R. SP No. 31916.

In its decision of 29 December 1993, 11 the Court of Appeals reversed the decision of the Insurance
Commission because it found that the petitioner knew of the existence of the two other policies issued
by the PFIC. It said:jgc:chanrobles.com.ph

"It is apparent from the face of Fire Policy GA 28146/Fire Policy No. 28144 that the insurance was taken
in the name of private respondent [petitioner herein]. The policy states that ‘DISCOUNT MART (MR.
ARMANDO GEAGONIA, PROP)’ was assured and that ‘TESING TEXTILES’ [was] only the mortgagee of the
goods.

In addition, the premiums on both policies were paid for by private respondent, not by the Tesing
Textiles which is alleged to have taken out the other insurances without the knowledge of
private Respondent. This is shown by Premium Invoices nos. 46632 and 46630. (Annexes M and N). In
both invoices, Tesing Textiles is indicated to be only the mortgagee of the goods insured but the party to
which they were issued were the ‘DISCOUNT MART (MR. ARMANDO GEAGONIA).’

It is clear that it was the private respondent [petitioner herein] who took out the policies on the same
property subject of the insurance with petitioner. Hence, in failing to disclose the existence of these
insurances private respondent violated Condition No. 3 of Fire Policy No. 14622. . . .

Indeed private respondent’s allegation of lack of knowledge of the previous insurances is belied by his
letter to petitioner [of 18 January 1991. The body of the letter reads as
follows:]chanroblesvirtuallawlibrary

x x x

‘Please be informed that I have no knowledge of the provision requiring me to inform your office about
my prior insurance under FGA-28146 and F-CEB-24758. Your representative did not mention about said
requirement at the time he was convincing me to insure with you. If he only did or even inquired if I had
other existing policies covering my establishment, I would have told him so. You will note that at the
time he talked to me until I decided to insure with your company the two policies aforementioned were
already in effect. Therefore I would have no reason to withhold such information and I would have no
reason to withhold such information and I would have desisted to part with my hard earned peso to pay
the insurance premiums [if] I know I could not recover anything.

Sir, I am only an ordinary businessman interested in protecting my investments. The actual value of my
stocks damaged by the fire was estimated by the Police Department to be P1,000,000.00 (Please see

235
xerox copy of Police Report Annex "A"). My Income Statement as of December 31, 1989 or five months
before the fire, shows my merchandise inventory was already some P595,455,75. . . . These will support
my claim that the amount under the three policies are much below the value of my stocks lost.

x x x

The letter contradicts private respondent’s pretension that he did not know that there were other
insurances taken on the stock-in-trade and seriously puts in question his
credibility." chanroblesvirtuallawlibrary

His motion to reconsider the adverse decision having been denied, the petitioner filed the instant
petition. He contends therein that the Court of Appeals acted with grave abuse of discretion amounting
to lack of excess of jurisdiction:jgc:chanrobles.com.ph

"A — . . . WHEN IT REVERSED THE FINDINGS OF FACTS OF THE INSURANCE COMMISSION, A QUASI-
JUDICIAL BODY CHARGED WITH THE DUTY OF DETERMINING INSURANCE CLAIM AND WHOSE DECISION
IS ACCORDED RESPECT AND EVEN FINALITY BY THE COURTS;

B — . . . WHEN IT CONSIDERED AS EVIDENCE MATTERS WHICH WERE NOT PRESENTED AS EVIDENCE

DURING THE HEARING OR TRIAL; AND

C — . . . WHEN IT DISMISSED THE CLAIM OF THE PETITIONER HEREIN AGAINST THE PRIVATE
RESPONDENT."cralaw virtua1aw library

The chief issues that crop up from the first and third grounds are (a) whether the petitioner had prior
knowledge of the two insurance policies issued by the PFIC when he obtained the fire insurance policy
from the private respondent, thereby, for not disclosing such fact, violating Condition 3 of the policy,
and (b) if he had, whether he is precluded from recovering therefrom.

The second ground, which is based on the Court of Appeals’ reliance on the petitioner’s letter of
reconsideration of 18 January 1991, is without merit. The petitioner claims that the said letter was not
offered in evidence and thus should not have been considered in deciding the case. However, as
correctly pointed out by the Court of Appeals, a copy of this letter was attached to the petitioner’s
complaint in I.C. Case No. 3340 as Annex "M" thereof and made an integral part of the complaint. 12 It
has attained the status of a judicial admission and since its due execution and authenticity was not
denied by the other party, the petitioner is bound by it even if it were not introduced as an independent
evidence. 13

As to the first issue, the Insurance Commission found that the petitioner had no knowledge of the
previous two policies. The Court of Appeals disagreed and found otherwise in view of the explicit
admission by the petitioner in his letter to the private respondent of 18 January 1991, which was quoted
in the challenged decision of the Court of Appeals. These divergent findings of facts constitute an
exception to the general rule that in petitions for review under Rule 45, only questions of law are
involved and findings of fact by the Court of Appeals are conclusive and binding upon this Court. 14

We agree with the Court of Appeals that the petitioner knew of the prior policies issued by the PFIC. His
letter of 18 January 1991 to the private respondent conclusively proves this knowledge. His testimony to
the contrary before the Insurance Commissioner and which the latter relied upon cannot prevail over a
written admission made ante litem motam. It was, indeed, incredible that he did not know about the
prior policies since these policies were not new or original. Policy No. GA-28144 was a renewal of Policy
No. F-24758, while Policy No. GA-28146 had been renewed twice, the previous policy being F-
24792.chanroblesvirtuallawlibrary

Condition 3 of the private respondent’s Policy No. F-14622 is a condition which is not proscribed by law.
Its incorporation in the policy is allowed by Section 75 of the Insurance Code 15 which provides that" [a]
policy may declare that a violation of specified provisions thereof shall avoid it, otherwise the breach of
an immaterial provision does not avoid the policy." Such a condition is a provision which invariably
appears in fire insurance policies and is intended to prevent an increase in the moral hazard. It is

236
commonly known as the additional or "other insurance" clause and has been upheld as valid and as a
warranty that no other insurance exists. Its violation would thus avoid the policy. 16 However, in order
to constitute a violation, the other insurance must be upon the same subject matter, the same interest
therein, and the same risk. 17

As to a mortgaged property, the mortgagor and the mortgagee have each an independent insurable
interest therein and both interests may be covered by one policy, or each may take out a separate policy
covering his interest, either at the same or at separate times. 18 The mortgagor’s insurable interest
covers the full value of the mortgaged property, even though the mortgage debt is equivalent to the full
value of the property. 19 The mortgagee’s insurable interest is to the extent of the debt, since the
property is relied upon as security thereof, and in insuring he is not insuring the property but his interest
or lien thereon. His insurable interest is prima facie the value mortgaged and extends only the amount
of the debt, not exceeding the value of the mortgaged property. 20 Thus, separate insurances covering
different insurable interests may be obtained by the mortgagor and the mortgagee.

A mortgagor may, however, take out insurance for the benefit of the mortgagee, which is the usual
practice. The mortgagee may be made the beneficial payee in several ways. He may become the
assignee of the policy with the consent of the insurer; or the mere pledgee without such consent; or the
original policy may contain a mortgage clause; or a rider making the policy payable to the mortgagee "as
his interest may appear" may be attached; or a "standard mortgage clause," containing a collateral
independent contract between the mortgagee and insurer, may be attached; or the policy, though by its
terms payable absolutely to the mortgagor, may have been procured by a mortgagor under a contract
duty to insure for the mortgagee’s benefit, in which case the mortgagee acquires an equitable lien upon
the proceeds. 21

In the policy obtained by the mortgagor with loss payable clause in favor of the mortgagee as his
interest may appear, the mortgagee is only a beneficiary under the contract, and recognized as such by
the insurer but not made a party to the contract itself. Hence, any act of the mortgagor which defeats
his right will also defeat the right of the mortgagee. 22 This kind of policy covers only such interest as
the mortgagee has at the issuing of the policy. 23

On the other hand, a mortgagee may also procure a policy as a contracting party in accordance with the
terms of an agreement by which the mortgagor is to pay the premiums upon such insurance. 24 It has
been noted, however, that although the mortgagee is himself the insured, as where he applies for a
policy, fully informs the authorized agent of his interest, pays the premiums, and obtains a policy on the
assurance that it insures him, the policy is in fact in the form used to insure a mortgagor with loss
payable clause.25cralaw:red

The fire insurance policies issued by the PFIC name the petitioner as the assured and contain a mortgage
clause which reads:chanroblesvirtuallawlibrary

"Loss, if any, shall be payable to MESSRS. TESING TEXTILES, Cebu City as their interest may appear
subject to the terms of the policy."cralaw virtua1aw library

This is clearly a simple loss payable clause, not a standard mortgage clause.

It must, however, be underscored that unlike the "other insurance" clauses involved in General
Insurance and Surety Corp. v. Ng Hua 26 or in Pioneer Insurance & Surety Corp. v. Yap, 27 which
read:jgc:chanrobles.com.ph

"The insured shall give notice to the company of any insurance or insurances already effected, or which
may subsequently be effected covering any of the property hereby insured, and unless such notice be
given and the particulars of such insurance or insurances be stated in or endorsed on this Policy by or on
behalf of the Company before the occurrence of any loss or damage, all benefits under this Policy shall
be forfeited."cralaw virtua1aw library

or in the 1930 case of Santa Ana v. Commercial Union Assurance Co. 28 which provided "that any
outstanding insurance upon the whole or a portion of the objects thereby assured must be declared by

237
the insured in writing and he must cause the company to add or insert it in the policy, without which
such policy shall be null and void, and the insured will not be entitled to indemnity in case of loss,"
Condition 3 in the private respondent’s policy No. F-14622 does not absolutely declare void any violation
thereof. It expressly provides that the condition "shall not apply when the total insurance or insurances
in force at the time of the loss or damage is not more than P200,000.00." chanroblesvirtuallawlibrary

It is a cardinal rule on insurance that a policy or insurance contract is to be interpreted liberally in favor
of the insured and strictly against the company, the reason being, undoubtedly, to afford the greatest
protection which the insured was endeavoring to secure when he applied for insurance. It is also a
cardinal principle of law that forfeitures are not favored and that any construction which would result in
the forfeiture of the policy benefits for the person claiming thereunder, will be avoided, if it is possible
to construe the policy in a manner which would permit recovery, as, for example, by finding a waiver for
such forfeiture. 29 Stated differently, provisions, conditions or exceptions in policies which tend to work
a forfeiture of insurance policies should be construed most strictly against those for whose benefits they
are inserted, and most favorably toward those against whom they are intended to operate. 30 The
reason for this is that, except for riders which may later be inserted, the insured sees the contract
already in its final form and has had no voice in the selection or arrangement of the words employed
therein. On the other hand, the language of the contract was carefully chosen and deliberated upon by
experts and legal advisers who had acted exclusively in the interest of the insurers and the technical
language employed therein is rarely understood by ordinary laymen. 31

With these principles in mind, we are of the opinion that Condition 3 of the subject policy is not totally
free from ambiguity and must, perforce, be meticulously analyzed. Such analysis leads us to conclude
that (a) the prohibition applies only to double insurance, and (b) the nullity of the policy shall only be to
the extent exceeding P200,000.00 of the total policies obtained.

The first conclusion is supported by the portion of the condition referring to other insurance "covering
any of the property or properties consisting of stocks in trade, goods in process and/or inventories only
hereby insured," and the portion regarding the insured’s declaration on the subheading CO-INSURANCE
that the co-insurer is Mercantile Insurance Co., Inc. in the sum of P50,000.00. A double insurance exists
where the same person is insured by several insurers separately in respect of the same subject and
interest. As earlier stated, the insurable interests of a mortgagor and a mortgagee on the mortgaged
property are distinct and separate. Since the two policies of the PFIC do not cover the same interest as
that covered by the policy of the private respondent, no double insurance exists. The non-disclosure
then of the former policies was not fatal to the petitioner’s right to recover on the private respondent’s
policy.chanroblesvirtuallawlibrary

Furthermore, by stating within Condition 3 itself that such condition shall not apply if the total insurance
in force at the time of loss does not exceed P200,000.00, the private respondent was amenable to
assume a co-insurer’s liability up to a loss not exceeding P200,000.00. What it had in mind was to
discourage over-insurance. Indeed, the rationale behind the incorporation of "other insurance" clause in
fire policies is to prevent over-insurance and thus avert the perpetration of fraud. When a property
owner obtains insurance policies from two or more insurers in a total amount that exceeds the
property’s value, the insured may have an inducement to destroy the property for the purpose of
collecting the insurance. The public as well as the insurer is interested in preventing a situation in which
a fire would be profitable to the insured. 32

WHEREFORE, the instant petition is hereby GRANTED. The decision of the Court of Appeals in CA-G.R. SP
No. 31916 is SET ASIDE and the decision of the Insurance Commission in Case No. 3340 is REINSTATED.

Costs against private respondent Country Bankers Insurance Corporation.

SO ORDERED.

Padilla, Bellosillo, Quiason and Kapunan, JJ., concur.

G.R. No. 92067 March 22, 1991

238
PHILIPPINE BANK OF COMMUNICATIONS, petitioner,
vs.
COURT OF APPEALS, JOSEPH L.G. CHUA and JALECO DEVELOPMENT, INC., respondents.

Sepidoza and Laogan Law Offices for petitioner.

Sotto & Sotto Law Offices for respondent Joseph L.G. Chua
Elias L. De los Reyes for Jaleco Development Inc.

GUTIERREZ, JR., J.:

This petition seeks the reversal of the Court of Appeals' decision affirming the earlier decision of the
Regional Trial Court of Makati, Branch 150 in Civil Case No. 7889 dismissing petitioner Philippine Bank of
Communications' (PBCOM) complaint for annulment of a Deed of Exchange executed by respondent
Joseph L.G. Chua in favor of Jaleco Development, Inc. (JALECO). The deed of exchange was alleged to be
in fraud of PBCOM as creditor of Chua who previously signed as one of the sureties in three (3) Surety
Agreements executed in favor of PBCOM. It involved a transfer by Chua of his real property in exchange
for shares of stocks of JALECO.

The facts of the case as summarized by the appellate court are not in dispute, to wit:

On April 14, 1976, Fortune Motors (Phils.), Inc. executed a Surety Agreement in favor of
Philippine Bank of Communications (PBCOM for short) with defendant-appellee Joseph L.G.
Chua, as one of the sureties (Exh. "A"). Again, on October 1, 1981, Fortune Motors (Phils.), Inc.
executed another Surety Agreement in favor of PBCOM with Chua likewise acting as one of the
sureties (Exh. "A-1").

From March 7, 1983 to May 3, 1983 Fortune Motors, (Phils.) thru its authorized officers and/or
representatives executed several trust receipts (Exhibits "B", "B-1", "B-2", "B-3", "B-4", "B-5" and
"B-6") in favor of PBCOM, the total principal amount of which was P2,492,543.00.

On March 6, 1981, Forte Merchant Finance, Inc., executed a Surety Agreement in favor of
PBCOM with Joseph L.G. Chua as one of the sureties (Exh. "A-2").

On May 13, 1983 to March 16, 1984, Forte Merchant Finance, Inc. obtained credit
accommodations from PBCOM in the form of trust receipt (Exh. "B-7") and loans represented by
promissory notes (Exhibits "C", "C-1", "C-2", and "C-3") in the total amount of P2,609,862.00.

On October 24, 1983 Chua executed a Deed of Exchange (Exh. "F") transferring a parcel of land
with improvements thereon covered by TCT No. S-52808 (343721) to JALECO Development, Inc.,
in exchange for 12,000 shares of said Corporation with a par value of P1,200,000.00. As a result,
TCT No. 126573 of the Register of Deeds of Rizal covering the aforementioned parcel of land
was issued in the name of JALECO Development, Inc., on November 24, 1983.

On November 2, 1983, Chua sold 6,000 shares of JALECO Development, Inc., to Mr. Chua Tiong
King for P600,000.00 (Exh. "10"-Chua; Exh. "3"-JALECO) and another 6,000 shares of JALECO
Development, Inc. to Guillermo Jose, Jr. also for P600,000.00 (Exh. "5"-JALECO) and Caw Le Ja
Chua, wife of Chua sold the 6,000 share of JALECO Development, Inc., to Chua Tiong King for
P200,000.00 (Exh. "11"-Chua).

In the meanwhile, for failure of both Fortune Motors (Phils.), Inc. and Forte Merchant Finance,
Inc. to meet their respective financial obligations with PBCOM, the latter filed Civil Case No. 84-
25159 against Fortune Motors (Phils.), Inc., Joseph L. G. Chua, George D. Tan, Edgar L. Rodriguez
and Jose C. Alcantara and Civil Case No. 84-25160 against Forte Merchant Finance, Inc., Joseph L.
G. Chua, George O. Tan and Edgar L. Rodriguez with the Regional Trial Court of Manila, both for
Sum of Money with Writ of Preliminary Attachment where PBCOM was able to obtain a notice

239
 of levy on the properties of Fortune Motors (Phils.) covered by TCT No. S-41915 (Makati, MM IV)
and S-54185 to 86 (Province of Rizal). When plaintiff was able to locate Chua's former property
situated in Dasmariñas, Makati, Metro Manila, covered by TCT No. S-52808 containing an area
of 1,541 square meters which was already transferred to JALECO Development, Inc., under TCT
No. 126573 by virtue of the Deed of Exchange dated October 24, 1983, PBCOM filed Civil Case
No. 7889 for annulment of Deed of Exchange with the Regional Trial Court of Makati, Metro
Manila.

In due course, a decision was rendered on September 18, 1986 dismissing said case. (Rollo, pp.
37-39)

In affirming the dismissal of the complaint, the appellate court stated: The Deed of Exchange was
neither submitted nor offered as evidence rendering the petitioner's cause of action untenable.
Furthermore, the appellate court stated that the case for annulment of the deed of exchange was filed
at a time when two (2) other cases for sums of money were filed against the respondent as one of the
sureties of Fortune Motors (Phils.), Inc. (Civil Case No. 84-25159) and of Forte Merchant Finance, Inc.
(Civil Case No. 84-25160) which are both pending. Hence, the annulment case which was filed in the
hope of receiving favorable judgments in the two (2) other cases in the future is premature. Finally, the
appellate court stated that the petitioner's interests in the meantime are sufficiently protected by a writ
of preliminary attachment on several properties of one of the principal debtors.

The petition is impressed with merit.

The records reveal the following:

In its petition filed with the lower court, the petitioner alleged among others:

xxx xxx xxx

12. That plaintiff was able to locate a parcel of land with buildings and improvements thereon
situated in Dasmariñas Village, Makati, Metro Manila, with T.C.T. No. S-52808, containing an
area of 1,514 square meters, but the said property was transferred to the name of a corporation
named Jaleco Development Inc., pursuant to the Deed of Exchange executed between
Defendant Joseph L. G. Chua and Jaleco Development, Inc., dated October 24, 1983, photocopy
of T.C.T. No. S-52808, the Deed of Exchange, and T.C.T. No. 126573 are hereto attached as
Annexes E, F, and G; and made integral part hereof; (Rollo, pp. 95-96)

xxx xxx xxx

In his answer, respondent Chua stated:

xxx xxx xxx

That paragraph 12, is admitted; the said Deed of Exchange (Annex "F") was done in good faith,
was done in accordance with law and same is valid; (Rollo, p. 44)

xxx xxx xxx

Chua's admission of the existence of the Deed of Exchange, attached to the "Petition as Annex "F" falls
squarely within the scope of Judicial Admissions under Section 4, Rule 129 of the Rules of Court. The rule
provides:

Judicial Admissions. — An admission, verbal or written, made by a party in the course of the
proceeding in the same case, does not require proof. The admission may be contradicted only
by showing that it was made through palpable mistake or that no such admission was made.

240
As early as 1925 in the case of Asia Banking Corporation v. Walter E. Olsen & Co. (48 Phil. 529), we have
ruled that documents attached to the complaint are considered a part thereof and may be considered as
evidence although they were not introduced as such. We said:

Another error assigned by the appellant is the fact that the lower court took into consideration
the documents attached to the complaint as a part thereof, without having been expressly
introduced in evidence, This was no error. In the answer of the defendants, there was no denial
under oath of the authenticity of these documents. Under section 103 of the Code of Civil
Procedure, the authenticity and due execution of these documents must, in that case, be
deemed admitted. The effect of this is to relieve the plaintiff from the duty of expressly
presenting such documents as evidence. The court, for the proper decision of the case, may and
should consider, without the introduction of evidence, the facts admitted by the parties. (at p.
532)

We reiterated this principle in the later case of Bravo Jr. v. Borja (134 SCRA 466 [1985]). In that case we
said:

But respondent judge claims that petitioner has not proved his minority. This is inaccurate. In
the motion for bail, petitioner alleged that he was a minor of 16 and this averment was never
challenged by the prosecution. Subsequently, in his memorandum in support of the motion for
bail, petitioner attached a copy of his birth certificate. And finally, after respondent Judge had
denied the motion for bail, petitioner filed a motion for reconsideration, attaching thereto a
certified true copy of his birth certificate. Respondent Judge however refused to take cognizance
of petitioner's unchallenged minority allegedly because the certificate of birth was not offered
in evidence. This was error because evidence of petitioner's minority was already a part of the
record of the case. It was properly filed in support of a motion. It would be a needless formality
to offer it in evidence. Respondent Judge therefore acted with grave abuse of discretion in
disregarding it.

For its part, JALECO stated in its Answer:

xxx xxx xxx

2. That it has no knowledge or information sufficient to form a belief as to the truth of the
allegation contained in pars. 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 of the Petitioner; (Emphasis
supplied)

Paragraph 12 refers to the deed of exchange in the petition.

The Deed of Exchange was attached to the petition. Necessarily, JALECO's contention that it has no
knowledge or information sufficient to form a belief as to the truth of the deed of exchange becomes an
invalid or ineffective denial pursuant to the Rules of Court. Under the circumstances, the petitioner
could have easily asserted whether or not it executed the deed of exchange. The ruling in Capitol Motors
Corporations vs. Yabut (32 SCRA 1 [1970]) applies:

We agree with defendant-appellant that one of the modes of specific denial contemplated in
Section 10, Rule 8, is a denial by stating that the defendant is without knowledge or information
sufficient to form a belief as to the truth of a material averment in the complaint. The question,
however, is whether paragraph 2 of the defendant-appellant's answer constitutes a specific
denial under the said rule. We do not think so. In Warner Barnes & Co., Ltd. vs. Reyes, et al. G.R.
No. L-9531, May 14, 1958 (103 Phil. 662), this Court said that the rule authorizing an answer to
the effect that the defendant has no knowledge or information sufficient to form a belief as to
the truth of an averment and giving such answer the effect of a denial, does not apply where the
fact as to which want of knowledge is asserted, is so plainly and necessarily within the
defendant's knowledge that his averment of ignorance must be palpably untrue. In said case,
the suit was one for foreclosure of mortgage, and a copy of the deed of mortgage was attached
to the complaint thus; according to this Court, it would have been easy for the defendants to
specifically allege in their answer whether or not they had executed the alleged mortgage. The

241
 same thing can be said in the present case, where a copy of the promissory note sued upon was
attached to the complaint. . . .

Considering the admission by Chua and the non-denial by JALECO of the document forming part of the
petition, the appellate court committed reversible error in not admitting the deed of exchange as
evidence.

Furthermore, we find as not well-taken the appellate court's ruling that the pendency of two (2) other
cases for collection of money against respondent Chua, among others as surety of Fortune Motors
(Phils.), Inc. and Forte Merchant Finance, Inc., renders the petition for annulment of deed of exchange
premature.

For failure of both Fortune Motors (Phils), Inc. and Forte Merchant Finance, Inc. to pay their obligations
with the petitioner, the latter filed the two civil cases against Fortune Motors (Phils.), Inc. and Forte
Merchant Finance, Inc. and respondent Chua, among others with the Regional Trial Court of Manila. The
petitioner was granted a writ of attachment as a result of which properties belonging to Fortune Motors
(Phils.) were attached. It turned out, however, that the attached properties of Fortune Motors (Phils.),
Inc. were already previously attached/mortgaged to prior lien holders in the amount of about
P70,000,000.00. As regards Forte Merchant Finance, Inc., it appears that it has no property to satisfy the
debts it incurred with PBCOM. The record further shows that as regards Chua, the property subject of
the Deed of Exchange between him and JALECO was his only property.

Under these circumstances, the petitioner's petition for annulment of the deed of exchange on the
ground that the deed was executed in fraud of creditors, despite the pendency of the two (2) other civil
cases is well-taken.

As surety for the financial obligations of Fortune Motors (Phils.), Inc. and the Forte Merchant Finance,
Inc., with the petitioner, respondent Chua bound himself solidarily liable with the two (2) principal
debtors. (Article 2047, Civil Code) The petitioner may therefore demand payment of the whole financial
obligations of Fortune Motors (Phils.), Inc. and Forte Finance, Inc., from Chua, if the petitioner chooses
to go directly after him. Hence, since the only property of Chua was sold to JALECO after the debts
became due, the petitioner has the right to file an annulment of the deed of exchange between Chua
and JALECO wherein Chua sold his only property to JALECO to protect his interests and so as not to
make the judgments in the two (2) cases illusory:

Rescission requires the existence of creditors at the time of the fraudulent alienation, and this
must be proved as one of the bases of the judicial pronouncement setting aside the contract;
without prior existing debts, there can be neither injury nor fraud. The credit must be existing at
the time of the fraudulent alienation, even if it is not yet due. But at the time the accion
pauliana is brought, the credit must already be due. Therefore, credits with suspensive term or
condition are excluded, because the accion pauliana presupposes a judgment and unsatisfied
execution, which cannot exist when the debt is not demandable at the time the rescissory action
is brought. Rescission is a subsidiary action, which presupposes that the creditor has exhausted
the property of the debtor, which is impossible in credits which cannot be enforced because of
the term or condition.

While it is necessary that the credit of the plaintiff in the accion pauliana must be prior to the
fraudulent alienation, the date of the judgment enforcing it is immaterial. Even if the judgment
be subsequent to the alienation, it is merely declaratory, with retroactive effect to the date when
the credit was constituted. . . . (Emphasis Supplied) (Tolentino, Civil Code of the Philippines, Vol.
IV Ed. pp. 578-579)

Parenthetically, the appellate court's observation that the petitioner's interests are sufficiently
protected by a writ of attachment on the properties of Fortune Finance (Phils.), Inc. has neither legal nor
factual basis.

One other point.

242
The trial court disregarded the ex-parte evidence adduced by the petitioner against JALECO when the
latter was declared in default on the ground that the ex-parte proceedings were conducted by the
Deputy Clerk of Court which is not allowed in accordance with the ruling in the case of Lim Tanhu
vs. Ramolete (66 SCRA 425 [1975]). That ruling has already been overruled in the later case
of Gochangco vs. CFI of Negros Occidental (157 SCRA 40 [1988]), wherein we said:

The respondent Court also declared null and void "the reception of evidence ex parte before . .
(the) deputy clerk of court." It invoked what it termed the doctrinal rule laid down in the recent
case of Lim Tan Hu vs. Ramolete, 66 SCRA 430, promulgated on August 29, 1975 (inter
alia declaring that) a Clerk of Court is not legally authorized to receive evidence ex-parte.

Now, that declaration does not reflect long observed and established judicial practice with
respect to default cases. It is not quite consistent, too, with the several explicitly authorized
instances under the Rules where the function of receiving evidence and even of making
recommendatory findings of facts on the basis thereof may be delegated to commissioners,
inclusive of the Clerk of Court. These instances are set out in Rule 33, treating of presentation of
evidence before commissioners, etc., in particular situations, such as when the trial of an issue
of fact requires the examination of a long account, or when the taking of an account is necessary
for the information of the court, or when issues of fact arise otherwise than upon the pleadings
or while carrying a judgment or order into effect; Rules 67 and 69, dealing with submission of
evidence also before commissioners in special civil actions of eminent domain and partition,
respectively; Rule 86 regarding trials of contested claims in judicial proceedings for the
settlement of a decedent's estate; Rule 136 empowering the clerk of court, directed by the
judge inter alia to receive evidence relating to the accounts of executors, administrators,
guardians, trustees and receivers, or relative to the settlement of the estates of deceased
persons, or to guardianships, trusteeships, or receiverships. In all these instances, the
competence of the clerk of court is assumed. Indeed, there would seem, to be sure, nothing
intrinsically wrong in allowing presentation of evidence ex parte before a Clerk of Court. Such a
procedure certainly does not foreclose relief to the party adversely affected who, for valid cause
and upon appropriate and seasonable application, may bring about the undoing thereof or the
elimination of prejudice thereby caused to him; and it is, after all, the Court itself which is duty
bound and has the ultimate responsibility to pass upon the evidence received in this manner,
discarding in the process such proofs as are incompetent and then declare what facts have
thereby been established. In considering and analyzing the evidence preparatory to rendition of
judgment on the merits, it may not unreasonably be assumed that any serious error in the ex
parte presentation of evidence, prejudicial to any absent party, will be detected and duly
remedied by the Court, and/or may always, in any event be drawn to its attention by any
interested party. . . .

Consequently, there is no legal impediment to the admissibility of the evidence presented by the
petitioner against JALECO.

These findings pave the way to the resolution of the case on its merits.

Respondent Chua admitted his liability under the various Surety Agreements executed on several dates
by Fortune Motors (Phils.), Inc. and Forte Merchants Finance, Inc. as principal debtors, respondent Chua,
among others, as surety and the petitioner as creditor. He also admitted in the Pre-Trial Order that he
has no other properties sufficient to cover the claims of the petitioner except for the Dasmariñas
property, subject matter of the Deed of Exchange.

During the above-mentioned proceedings, the petitioner established the following:

After the petitioner attached the properties of Fortune Motors (Phils.), Inc. by virtue of the writ of
attachment filed in the two (2) civil cases, it found out the same properties were previously mortgaged
and/or attached in the amount of about P70,000,000.00. Thereafter, the petitioner was able to locate a
property in the name of respondent Chua. This property was, however already sold to JALECO on
November 24, 1983 pursuant to a Deed of Exchange and the Register of Deeds of Makati had already
issued T.C.T. No. 126573 covering the property in the name of JALECO.

243
Upon investigation with the Securities and Exchange Commission (SEC), the petitioner gathered the
following facts based on the SEC records: a) JALECO was organized on November 2, 1982 with a capital
stock of P5,000,000.00; b) the stockholders of said corporation were mostly members of the immediate
family of Joseph L. G. Chua; c) on April 4, 1983, a Board Resolution was passed authorizing the issuance
of 12,000 shares of stocks worth Pl,200,000.00 to a new subscriber and non-stockholder Joseph L. G.
Chua; and d) prior to the acquisition by the corporation of the property located at Dasmariñas Village,
Makati, the percentage of the shareholding of the members of the family of Joseph L. G. Chua was 88%
while after the acquisition of the property and the issuance of the shares to Chua, they owned 94% of
the corporation.

The evidence on record also shows that despite the "sale" of the Dasmariñas property, respondent Chua
continued to stay in the said property.

The well-settled principle is that a corporation "is invested by law with a separate personality, separate
and distinct from that of the person composing it as well as from any other legal entity to which it may
be related." (Tan Boon Been & Co., Inc. vs. Jarencio, 163 SCRA 205 [1988] citing Yutivo and Sons
Hardware Company vs. Court of Tax Appeals, 1 SCRA 160 [1961]; Emilio Cano Enterprises, Inc. vs. Court
of Industrial Relations, 13 SCRA 290 [1965]; and Western Agro Industrial Corporation and Antonio
Rodriguez vs. Court of Appeals, and Sia's Automotive and Diesel Parts, Inc., G.R. No. 82558, August 20,
1990) However, the separate personality of the corporation may be disregarded, or the veil of corporate
fiction pierced when the corporation is used "as a cloak or cover for fraud or illegality, or to work an
injustice, or where necessary to achieve equity or when necessary for the protection of creditors." (Sulo
ng Bayan, Inc. vs. Araneta, Inc., 72 SCRA 347 [1976] cited in Tan Boon Bee & Co., Inc. vs. Jarencio, supra;
Western Agro Industrial Corporation, et al. vs. Court of Appeals, supra.)

In the instant case, the evidence clearly shows that Chua and his immediate family control JALECO. The
Deed of Exchange executed by Chua and JALECO had for its subject matter the sale of the only property
of Chua at the time when Chua's financial obligations became due and demandable. The records also
show that despite the "sale", respondent Chua continued to stay in the property, subject matter of the
Deed of Exchange.

These circumstances tend to show that the Deed of Exchange was not what it purports to
be.1âwphi1 Instead, they tend to show that the Deed of Exchange was executed with the sole intention
to defraud Chua's creditor—the petitioner. It was not a bona fide transaction between JALECO and Chua.
Chua entered a sham or simulated transaction with JALECO for the sole purpose of transferring the title
of the property to JALECO without really divesting himself of the title and control of the said property.

Hence, JALECO's separate personality should be disregarded and the corporation veil pierced. In this
regard, the transaction leading to the execution of the Deed of Exchange between Chua and JALECO
must be considered a transaction between Chua and himself and not between Chua and JALECO. Indeed,
Chua took advantage of his control over JALECO to execute the Deed of Exchange to defraud his creditor,
the petitioner herein. JALECO was but a mere alter ego of Chua. (See Tan Boon Bee & Co., Inc. vs.
Jarencio, supra)

WHEREFORE, the instant petition is GRANTED, The questioned decision dated February 8, 1990 of the
Court of Appeals is REVERSED and SET ASIDE. The Deed of Exchange executed by and between Joseph L.
G. Chua and JALECO Development, Inc., and the title issued in the name of JALECO on the basis thereof
are declared NULL and VOID. Costs against the private respondents.

SO ORDERED.

Fernan, C.J., Feliciano, Bidin and Davide, Jr., JJ., concur.

[G.R. NO. 144413 : July 30, 2004]

REPUBLIC GLASS CORPORATION and GERVEL, INC, Petitioners, v. LAWRENCE C. QUA, Respondent.

244
DECISION

CARPIO, J.:

The Case

Before the Court is a Petition for Review 1 assailing the 6 March 2000 Decision2 and the 26 July 2000
Resolution of the Court of Appeals in CA-G.R. CV No. 54737. The Court of Appeals set aside the Order3 of
3 May 1996 of the Regional Trial Court of Makati, Branch 63 ("RTC-Branch 63"), in Civil Case No. 88-2643
and reinstated the Decision4 of 12 January 1996 in respondent's favor.

The Facts

Petitioners Republic Glass Corporation ("RGC") and Gervel, Inc. ("Gervel") together with respondent
Lawrence C. Qua ("Qua") were stockholders of Ladtek, Inc. ("Ladtek"). Ladtek obtained loans from
Metropolitan Bank and Trust Company ("Metrobank")5 and Private Development Corporation of the
Philippines6 ("PDCP") with RGC, Gervel and Qua as sureties. Among themselves, RGC, Gervel and Qua
executed Agreements for Contribution, Indemnity and Pledge of Shares of Stocks ("Agreements").7

The Agreements all state that in case of default in the payment of Ladtek's loans, the parties would
reimburse each other the proportionate share of any sum that any might pay to the creditors.8 Thus, a
common provision appears in the Agreements:

RGC, GERVEL and QUA each covenant that each will respectively reimburse the party made to pay the
Lenders to the extent and subject to the limitations set forth herein, all sums of money which the party
made to pay the Lenders shall pay or become liable to pay by reason of any of the foregoing, and will
make such payments within five (5) days from the date that the party made to pay the Lenders gives
written notice to the parties hereto that it shall have become liable therefor and has advised the
Lenders of its willingness to pay whether or not it shall have already paid out such sum or any part
thereof to the Lenders or to the persons entitled thereto. (Emphasis supplied)ςrαlαωlιbrαrÿ

Under the same Agreements, Qua pledged 1,892,360 common shares of stock of General Milling
Corporation ("GMC") in favor of RGC and Gervel. The pledged shares of stock served as security for the
payment of any sum which RGC and Gervel may be held liable under the Agreements.

Ladtek defaulted on its loan obligations to Metrobank and PDCP. Hence, Metrobank filed a collection
case against Ladtek, RGC, Gervel and Qua docketed as Civil Case No. 8364 ("Collection Case No. 8364")
which was raffled to the Regional Trial Court of Makati, Branch 149 ("RTC-Branch 149"). During the
pendency of Collection Case No. 8364, RGC and Gervel paid Metrobank P7 million. Later, Metrobank
executed a waiver and quitclaim dated 7 September 1988 in favor of RGC and Gervel. Based on this
waiver and quitclaim,9 Metrobank, RGC and Gervel filed on 16 September 1988 a joint motion to dismiss
Collection Case No. 8364 against RGC and Gervel. Accordingly, RTC-Branch 149 dismissed the case
against RGC and Gervel, leaving Ladtek and Qua as defendants.10

In a letter dated 7 November 1988, RGC and Gervel's counsel, Atty. Antonio C. Pastelero, demanded that
Qua pay P3,860,646, or 42.22% of P8,730,543.55,11 as reimbursement of the total amount RGC and
Gervel paid to Metrobank and PDCP. Qua refused to reimburse the amount to RGC and Gervel.
Subsequently, RGC and Gervel furnished Qua with notices of foreclosure of Qua's pledged shares.

Qua filed a complaint for injunction and damages with application for a temporary restraining order,
docketed as Civil Case No. 88-2643 ("Foreclosure Case No. 88-2643"), with RTC-Branch 63 to prevent

245
RGC and Gervel from foreclosing the pledged shares. Although it issued a temporary restraining order
on 9 December 1988, RTC-Branch 63 denied on 2 January 1989 Qua's "Urgent Petition to Suspend
Foreclosure Sale." RGC and Gervel eventually foreclosed all the pledged shares of stock at public auction.
Thus, Qua's application for the issuance of a preliminary injunction became moot.12

Trial in Foreclosure Case No. 88-2643 ensued. RGC and Gervel offered Qua's Motion to Dismiss13 in
Collection Case No. 8364 as basis for the foreclosure of Qua's pledged shares. Qua's Motion to Dismiss
states:

8. The foregoing facts show that the payment of defendants Republic Glass Corporation and Gervel,
Inc. was for the entire obligation covered by the Continuing Surety Agreements which were Annexes
"B" and "C" of the Complaint, and that the same naturally redound[ed] to the benefit of defendant Qua
herein, as provided for by law, specifically Article 1217 of the Civil Code, which states that:

xxx

10. It is very clear that the payment of defendants Republic Glass Corporation and Gervel, Inc. was much
more than the amount stipulated in the Continuing Surety Agreement which is the basis for the action
against them and defendant Qua, which was just SIX MILLION TWO HUNDRED [THOUSAND] PESOS
(P6,200,000.00), hence, logically the said alleged obligation must now be considered as fully paid and
extinguished.

RGC and Gervel likewise offered as evidence in Foreclosure Case No. 88-2643 the Order dismissing
Collection Case No. 8364,14 which RTC-Branch 149 subsequently reversed on Metrobank's motion for
reconsideration. Thus, RTC-Branch 149 reinstated Collection Case No. 8364 against Qua.

On 12 January 1996, RTC-Branch 63 rendered a Decision in Foreclosure Case No. 88-2643 ("12 January
1996 Decision") ordering RGC and Gervel to return the foreclosed shares of stock to Qua. The dispositive
portion of the 12 January 1996 Decision reads:

WHEREFORE, premises considered, this Court hereby renders judgment ordering defendants jointly and
severally liable to return to plaintiff the 1,892,360 shares of common stock of General Milling
Corporation which they foreclosed on December 9, 1988, or should the return of these shares be no
longer possible then to pay to plaintiff the amount of P3,860,646.00 with interest at 6% per annum from
December 9, 1988 until fully paid and to pay plaintiff P100,000.00 as and for attorney's fees. The costs
will be for defendants' account.

SO ORDERED.15

However, on RGC and Gervel's Motion for Reconsideration, RTC-Branch 63 issued its Order of 3 May
1996 ("3 May 1996 Order") reconsidering and setting aside the 12 January 1996 Decision. The 3 May
1996 Order states:

After a thorough review of the records of the case, and an evaluation of the evidence adduced by the
parties as well as their contentions, the issues to be resolved boil down to the following:

1. Whether or not the parties' obligation to reimburse, under the Indemnity Agreements was premised
on the payment by any of them of the entire obligation;

2. Whether or not there is basis to plaintiff's apprehension that he would be made to pay twice for the
single obligation; andcralawlibrary

3. Whether or not plaintiff was benefited by the payments made by defendants.

Regarding the first issue, a closer scrutiny of the pertinent provisions of the Indemnity Agreements
executed by the parties would not reveal any significant indication that the parties' liabilities are indeed
premised on the payment by any of them of the entire obligation. These agreements clearly provide that

246
the parties' obligation to reimburse accrues upon mere advice that one of them has paid or will so pay
the obligation. It is not specified whether the payment is for the entire obligation or not.

Accordingly, the Court stands corrected in this regard. The obvious conclusion that can be seen now is
that payment of the entire obligation is not a condition sine qua non for the paying party to demand
reimbursement. The parties have expressly contracted that each will reimburse whoever is made to pay
the obligation whether entirely or just a portion thereof.

On the second issue, plaintiff's apprehension that he would be made to pay twice for the single
obligation is unfounded. Under the above-mentioned Indemnity Agreements, in the event that the
creditors are able to collect from him, he has the right to ask defendants to pay their proportionate
share, in the same way defendants had collected from the plaintiff, by foreclosing his pledged shares of
stock, his proportionate share, after they had made payments. From all indications, the provisions of the
Indemnity Agreements have remained binding between the parties.

On the third issue, there is merit to defendants' assertion that plaintiff has benefited from the payments
made by defendants. As alleged by defendants, and this has not been denied by plaintiff, in Civil Case
No. 8364 filed before Branch 149 of this Court, where the creditors were enforcing the parties'
liabilities as sureties, plaintiff succeeded in having the case dismissed by arguing that defendants'
payments [were] for the entire obligation, hence, the obligation should be considered fully paid and
extinguished. With the dismissal of the case, the indications are that the creditors are no longer running
after plaintiff to enforce his liabilities as surety of Ladtek.

Whether or not the surety agreements signed by the parties and the creditors were novated is not
material in this controversy. The fact is that there was payment of the obligation. Hence, the Indemnity
Agreements govern.

In the final analysis, defendants' payments gave rise to plaintiff's obligation to reimburse the former.
Having failed to do so, upon demand, defendants were justified in foreclosing the pledged shares of
stocks.

xxx

WHEREFORE, premises considered, the decision dated January 12, 1996 is reconsidered and set aside.
The above-entitled complaint against defendants is DISMISSED.

Likewise, defendants' counterclaim is also dismissed.

SO ORDERED.16 (Emphasis supplied)ςrαlαωlιbrαrÿ

Qua filed a motion for reconsideration of the 3 May 1996 Order which RTC-Branch 63 denied.

Aggrieved, Qua appealed to the Court of Appeals. During the pendency of the appeal, Qua filed a
Manifestation17 with the Court of Appeals attaching the Decision18 of 21 November 1996 rendered in
Collection Case No. 8364. The dispositive portion of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered ordering defendants Ladtek, Inc. and
Lawrence C. Qua:

1. To pay, jointly and severally, the plaintiff the amount of P44,552,738.34 as of October 31, 1987 plus
the stipulated interest of 30.73% per annum and penalty charges of 12% per annum from November 1,
1987 until the whole amount is fully paid, less P7,000,000.00 paid by defendants Republic Glass
Corporation and Gervel, Inc., but the liability of defendant Lawrence C. Qua should be limited only to
P5,000,000.00 and P1,200,000.00, the amount stated in the Continuing Suretyship dated June 15, 1983,
Exh. "D" and Continuing Suretyship dated December 14, 1981, Exh. "D-1", respectively, plus the
stipulated interest and expenses incurred by the plaintiff.

247
2. To pay, jointly and severally, the plaintiff an amount equivalent to ten (10%) percent of the total
amount due as and by way of attorney's fees;

3. To pay the cost of suit.

The Counterclaims of the defendants Ladtek, Inc. and Lawrence C. Qua against the plaintiff are hereby
dismissed.

Likewise, the cross-claims of the defendants are dismissed.

SO ORDERED.19 (Emphasis supplied)ςrαlαωlιbrαrÿ

On 6 March 2000, the Court of Appeals rendered the questioned Decision setting aside the 3 May 1996
Order of RTC-Branch 63 and reinstating the 12 January 1996 Decision ordering RGC and Gervel to return
the foreclosed shares of stock to Qua.20

Hence, this petition.

The Ruling of the Court of Appeals

In reversing the 3 May 1996 Order and reinstating the 12 January 1996 Decision, the appellate court
quoted the RTC-Branch 63's 12 January 1996 Decision:

The liability of each party under the indemnity agreements therefore is premised on the payment by any
of them of the entire obligation. Without such payment, there would be no corresponding share to
reimburse. Payment of the entire obligation naturally redounds to the benefit of the other solidary
debtors who must then reimburse the paying co-debtors to the extent of his corresponding share.

In the case at bar, Republic Glass and Gervel made partial payments only, and so they did not extinguish
the entire obligation. But Republic Glass and Gervel nevertheless obtained quitclaims in their favor and
so they ceased to be solidarily liable with plaintiff for the balance of the debt (Exhs. "D", "E", and "I").
Plaintiff thus became solely liable for the unpaid portion of the debt even as he is being held liable for
reimbursement on the said portion.

What happened therefore, was that Metrobank and PDCP in effect enforced the Suretyship Agreements
jointly as against plaintiff and defendants. Consequently, the solidary obligation under the Suretyship
Agreements was novated by the substantial modification of its principal conditions. xxx The resulting
change was from one with three solidary debtors to one in which Lawrence Qua became the sole
solidary co-debtor of Ladtek.

Defendants cannot simply pay off a portion of the debt and then absolve themselves from any further
liability when the obligation has not been totally extinguished.

xxx

In the final reckoning, this Court finds that the foreclosure and sale of the shares pledged by plaintiff
was totally unjustified and without basis because the obligation secured by the underlying pledge had
been extinguished by novation. xxx21

The Court of Appeals further held that there was an implied novation or substantial incompatibility in
the surety's mode or manner of payment from one for the entire obligation to one merely of
proportionate share. The appellate court ruled that RGC and Gervel's payment to the creditors only
amounted to their proportionate shares of the obligation, considering the following evidence:

The letter of the Republic to the appellant, Exhibit "G", dated June 25, 1987, which mentioned the letter
from PDCP confirming its willingness to release the joint and solidary obligation of the Republic and
Gervel subject to some terms and conditions, one of which is the appellant's acceptable repayment plan
of his "pro-rata share"; and the letter of PDCP to the Republic, Exhibit "H", mentioning full payment of

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the "pro rata share" of the Republic and Gervel, and the need of the appellant to submit an acceptable
repayment plan covering his "pro-rata share"', the release from solidary liability by PDCP, Exhibit "J",
mentioning full payment by the Republic and Gervel of their "pro rata share" in the loan, as solidary
obligors, subject however to the terms and conditions of the hold out agreement; and the non-payment
in full of the loan, subject of the May 10, 1984 Promissory Note, except the 7 million payment by both
Republic and Gervel, as mentioned in the Decision (Case No. 8364, Metrobank v. Ladtek, et al). Precisely,
Ladtek and the appellant, in said Decision were directed to pay Metrobank the balance of P9,560,798,
supposedly due and unpaid.

Thus, the payment did not extinguish the entire obligation and did not benefit Qua. Accordingly, RGC
and Gervel cannot demand reimbursement. The Court of Appeals also held that Qua even became solely
answerable for the unpaid balance of the obligations by virtue of the quitclaims executed by Metrobank
and PDCP in favor of RGC and Gervel. RGC and Gervel ceased to be solidarily liable for Ladtek's loan
obligations.22

The Issues

RGC and Gervel raise the following issues for resolution:

I.

WHETHER THE PRINCIPLE OF ESTOPPEL APPLIES TO QUA'S JUDICIAL STATEMENTS THAT RGC AND
GERVEL PAID THE ENTIRE OBLIGATION.

II.

WHETHER PAYMENT OF THE ENTIRE OBLIGATION IS A CONDITION SINE QUA NON FOR RGC AND GERVEL
TO DEMAND REIMBURSEMENT FROM QUA UNDER THE INDEMNITY AGREEMENTS EXECUTED BY THEM
AFTER RGC AND GERVEL PAID METROBANK UNDER THE SURETY AGREEMENT.

III.

ASSUMING ARGUENDO THAT THERE WAS NOVATION OF THE SURETY AGREEMENTS SIGNED BY THE
PARTIES AND THE CREDITORS, WHETHER THE NOVATION IS MATERIAL IN THIS CASE.23

The Court's Ruling

We deny the petition.

Whether Qua was in estoppel

RGC and Gervel contend that Qua is in estoppel for making conflicting statements in two different and
separate cases. Qua cannot now claim that the payment made to Metrobank was not for
the entire obligation because of his Motion to Dismiss Collection Case No. 8364 where he stated that
RGC and Gervel's payment was for the entire obligation.

The essential elements of estoppel in pais are considered in relation to the party to be estopped, and to
the party invoking the estoppel in his favor. On the party to be estopped, such party (1) commits
conduct amounting to false representation or concealment of material facts or at least calculated to
convey the impression that the facts are inconsistent with those which the party subsequently attempts
to assert; (2) has the intent, or at least expectation that his conduct shall at least influence the other
party; and (3) has knowledge, actual or constructive, of the real facts. On the party claiming the
estoppel, such party (1) has lack of knowledge and of the means of knowledge of the truth on the facts
in question; (2) has relied, in good faith, on the conduct or statements of the party to be estopped; (3)
has acted or refrained from acting based on such conduct or statements as to change the position or
status of the party claiming the estoppel, to his injury, detriment or prejudice.24

In this case, the essential elements of estoppel are inexistent.

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While Qua's statements in Collection Case No. 8364 conflict with his statements in Foreclosure Case No.
88-2643, RGC and Gervel miserably failed to show that Qua, in making those statements, intended to
falsely represent or conceal the material facts. Both parties undeniably know the real facts.

Nothing in the records shows that RGC and Gervel relied on Qua's statements in Collection Case No.
8364 such that they changed their position or status, to their injury, detriment or prejudice. RGC and
Gervel repeatedly point out that it was the presiding judge25 in Collection Case No. 8364 who relied on
Qua's statements in Collection Case No. 8364. RGC and Gervel claim that Qua "deliberately led the
Presiding Judge to believe" that their payment to Metrobank was for the entire obligation. As a result,
the presiding judge ordered the dismissal of Collection Case No. 8364 against Qua.26

RGC and Gervel further invoke Section 4 of Rule 129 of the Rules of Court to support their stance:

Sec. 4. Judicial admissions. - An admission, verbal or written, made by a party in the course of the
proceedings in the same case, does not require proof. The admission may be contradicted only by
showing that it was made through palpable mistake or that no such admission was made.

A party may make judicial admissions in (a) the pleadings filed by the parties, (b) during the trial either
by verbal or written manifestations or stipulations, or (c) in other stages of the judicial proceeding.27

The elements of judicial admissions are absent in this case. Qua made conflicting statements in
Collection Case No. 8364 and in Foreclosure Case No. 88-2643, and not in the "same case" as required in
Section 4 of Rule 129. To constitute judicial admission, the admission must be made in the same case in
which it is offered. If made in another case or in another court, the fact of such admission must be
proved as in the case of any other fact, although if made in a judicial proceeding it is entitled to greater
weight.28

RGC and Gervel introduced Qua's Motion to Dismiss and the Order dismissing Collection Case No. 8364
to prove Qua's claim that the payment was for the entire obligation. Qua does not deny making such
statement but explained that he "honestly believed and pleaded in the lower court and in CA-G.R. CV No.
58550 that the entire debt was fully extinguished when the petitioners paid P7 million to Metrobank."29

We find Qua's explanation substantiated by the evidence on record. As stated in the Agreements,
Ladtek's original loan from Metrobank was only P6.2 million. Therefore, Qua reasonably believed that
RGC and Gervel's P7 million payment to Metrobank pertained to the entire obligation. However,
subsequent facts indisputably show that RGC and Gervel's payment was not for the entire obligation.
RTC-Branch 149 reinstated Collection Case No. 8364 against Qua and ruled in Metrobank's favor,
ordering Qua to pay P6.2 million.

Whether payment of the entire obligation is an essential condition for reimbursement

RGC and Gervel assail the Court of Appeals' ruling that the parties' liabilities under the Agreements
depend on the full payment of the obligation. RGC and Gervel insist that it is not an essential condition
that the entire obligation must first be paid before they can seek reimbursement from Qua. RGC and
Gervel contend that Qua should pay 42.22% of any amount which they paid or would pay Metrobank
and PDCP.

RGC and Gervels' contention is partly meritorious.

Payment of the entire obligation by one or some of the solidary debtors results in a corresponding
obligation of the other debtors to reimburse the paying debtor.30 However, we agree with RGC and
Gervel's contention that in this case payment of the entire obligation is not an essential condition before
they can seek reimbursement from Qua. The words of the Agreements are clear.

RGC, GERVEL and QUA each covenant that each will respectively reimburse the party made to pay the
Lenders to the extent and subject to the limitations set forth herein, all sums of money which the party
made to pay the Lenders shall pay or become liable to pay by reason of any of the foregoing, and will
make such payments within five (5) days from the date that the party made to pay the Lenders gives

250
written notice to the parties hereto that it shall have become liable therefor and has advised the
Lenders of its willingness to pay whether or not it shall have already paid out such sum or any part
thereof to the Lenders or to the persons entitled thereto. (Emphasis supplied)ςrαlαωlιbrαrÿ

The Agreements are contracts of indemnity not only against actual loss but against liability as well.
In Associated Insurance & Surety Co., Inc. v. Chua,31 we distinguished between a contract of indemnity
against loss and a contract of indemnity against liability, thus:32

The agreement here sued upon is not only one of indemnity against loss but of indemnity against
liability. While the first does not render the indemnitor liable until the person to be indemnified makes
payment or sustains loss, the second becomes operative as soon as the liability of the person
indemnified arises irrespective of whether or not he has suffered actual loss. (Emphasis
supplied)ςrαlαωlιbrαrÿ

Therefore, whether the solidary debtor has paid the creditor, the other solidary debtors should
indemnify the former once his liability becomes absolute. However, in this case, the liability of RGC,
Gervel and Qua became absolute simultaneously when Ladtek defaulted in its loan payment. As a result,
RGC, Gervel and Qua all became directly liable at the same time to Metrobank and PDCP. Thus, RGC and
Gervel cannot automatically claim for indemnity from Qua because Qua himself is liable directly to
Metrobank and PDCP.

If we allow RGC and Gervel to collect from Qua his proportionate share, then Qua would pay much more
than his stipulated liability under the Agreements. In addition to the P3,860,646 claimed by RGC and
Gervel, Qua would have to pay his liability of P6.2 million to Metrobank and more than P1 million to
PDCP. Since Qua would surely exceed his proportionate share, he would then recover from RGC and
Gervel the excess payment. This situation is absurd and circuitous.

Contrary to RGC and Gervel's claim, payment of any amount will not automatically result in
reimbursement. If a solidary debtor pays the obligation in part, he can recover reimbursement from the
co-debtors only in so far as his payment exceeded his share in the obligation.33 This is precisely because
if a solidary debtor pays an amount equal to his proportionate share in the obligation, then he in effect
pays only what is due from him. If the debtor pays less than his share in the obligation, he cannot
demand reimbursement because his payment is less than his actual debt.

To determine whether RGC and Gervel have a right to reimbursement, it is indispensable to ascertain
the total obligation of the parties. At this point, it becomes necessary to consider the decision in
Collection Case No. 8364 on the parties' obligation to Metrobank. To repeat, Metrobank filed Collection
Case No. 8364 against Ladtek, RGC, Gervel and Qua to collect Ladtek's unpaid loan.

RGC and Gervel assail the Court of Appeals' consideration of the decision in Collection Case No.
836434 because Qua did not offer the decision in evidence during the trial in Foreclosure Case No. 88-
2643 subject of this petition. RTC-Branch 6235 rendered the decision in Collection Case No. 8364 on 21
November 1996 while Qua filed his Notice of Appeal of the 3 May 1996 Order on 19 June 1996. Qua
could not have possibly offered in evidence the decision in Collection Case No. 8364 because RTC-
Branch 62 rendered the decision only after Qua elevated the present case to the Court of Appeals.
Hence, Qua submitted the decision in Collection Case No. 8364 during the pendency of the appeal of
Foreclosure Case No. 88-2643 in the Court of Appeals.

As found by RTC-Branch 62, RGC, Gervel and Qua's total obligation was P14,200,854.37 as of 31 October
1987.36 During the pendency of Collection Case No. 8364, RGC and Gervel paid Metrobank P7 million.
Because of the payment, Metrobank executed a quitclaim37 in favor of RGC and Gervel. By virtue of
Metrobank's quitclaim, RTC-Branch 62 dismissed Collection Case No. 8364 against RGC and Gervel,
leaving Ladtek and Qua as defendants. Considering that RGC and Gervel paid only P7 million out of the
total obligation of P14,200,854.37, which payment was less than RGC and Gervel's combined shares in
the obligation,38 it was clearly partial payment. Moreover, if it were full payment, then the obligation
would have been extinguished. Metrobank would have also released Qua from his obligation.

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RGC and Gervel also made partial payment to PDCP. Proof of this is the Release from Solidary Liability
that PDCP executed in RGC and Gervel's favor which stated that their payment of P1,730,543.55 served
as "full payment of their corresponding proportionate share" in Ladtek's foreign currency
loan.39 Moreover, PDCP filed a collection case against Qua alone, docketed as Civil Case No. 2259, in the
Regional Trial Court of Makati, Branch 150.40

Since they only made partial payments, RGC and Gervel should clearly and convincingly show that their
payments to Metrobank and PDCP exceeded their proportionate shares in the obligations before they
can seek reimbursement from Qua. This RGC and Gervel failed to do. RGC and Gervel, in fact, never
claimed that their payments exceeded their shares in the obligations. Consequently, RGC and Gervel
cannot validly seek reimbursement from Qua.

Whether there was novation of the Agreements

RGC and Gervel contend that there was no novation of the Agreements. RGC and Gervel further contend
that any novation of the Agreements is immaterial to this case. RGC and Gervel disagreed with the Court
of Appeals on the effect of the "implied novation" which supposedly transpired in this case. The Court of
Appeals found that "there was an implied novation or substantial incompatibility in the mode or manner
of payment by the surety from the entire obligation, to one merely of proportionate share." RGC and
Gervel claim that if it is true that an implied novation occurred, then the effect "would be to release
respondent (Qua) as the entire obligation is considered extinguished by operation of law." Thus, Qua
should now reimburse RGC and Gervel his proportionate share under the surety agreements.

Novation extinguishes an obligation by (1) changing its object or principal conditions; (2) substituting the
person of the debtor; and (3) subrogating a third person in the rights of the creditor. Article 1292 of the
Civil Code clearly provides that in order that an obligation may be extinguished by another which
substitutes the same, it should be declared in unequivocal terms, or that the old and new obligations be
on every point incompatible with each other.41 Novation may either be extinctive or modificatory.
Novation is extinctive when an old obligation is terminated by the creation of a new obligation that
takes the place of the former. Novation is merely modificatory when the old obligation subsists to the
extent it remains compatible with the amendatory agreement.42

We find that there was no novation of the Agreements. The parties did not constitute a new obligation
to substitute the Agreements. The terms and conditions of the Agreements remain the same. There was
also no showing of complete incompatibility in the manner of payment of the parties' obligations.
Contrary to the Court of Appeals' ruling, the mode or manner of payment by the parties did not change
from one for the entire obligation to one merely of proportionate share. The creditors, namely
Metrobank and PDCP, merely proceeded against RGC and Gervel for their proportionate shares
only.43 This preference is within the creditors' discretion which did not necessarily affect the nature of
the obligations as well as the terms and conditions of the Agreements. A creditor may choose to
proceed only against some and not all of the solidary debtors. The creditor may also choose to collect
part of the debt from some of the solidary debtors, and the remaining debt from the other solidary
debtors.

In sum, RGC and Gervel have no legal basis to seek reimbursement from Qua. Consequently, RGC and
Gervel cannot validly foreclose the pledge of Qua's GMC shares of stock which secured his obligation to
reimburse.44 Therefore, the foreclosure of the pledged shares of stock has no leg to stand on.

WHEREFORE, we DENY the petition. The Decision dated 6 March 2000 of the Court of Appeals in CA-G.R.
CV No. 54737 is AFFIRMED. Costs against petitioners.

SO ORDERED.

Davide, Jr., C.J., Chairman, Quisumbing, Ynares-Santiago, and Azcuna, JJ., concur.

G.R. No. 123553 July 13, 1998

(CA-G.R. No. 33291) July 13, 1998

252
NORA A. BITONG, petitioner,

vs.

COURT OF APPEALS (FIFTH DIVISION), EUGENIA D. APOSTOL, JOSE A. APOSTOL, MR. & MS.
PUBLISHING CO., LETTY J. MAGSANOC, AND ADORACION G. NUYDA, respondents.

(CA-G.R. No. 33873) July 13, 1998

NORA A. BITONG, petitioner,

vs.

COURT OF APPEALS (FIFTH DIVISION) and EDGARDO B. ESPIRITU, respondents.

BELLOSILLO, J.:

These twin cases originated from a derivative suit 1 filed by petitioner Nora A. Bitong before
the Securities and Exchange Commission (SEC hereafter) allegedly for the benefit of private
respondent Mr. & Ms. Publishing Co., Inc. (Mr. & Ms. hereafter), among others, to hold respondent
spouses Eugenia D. Apostol and Jose A. Apostol 2 liable for fraud, misrepresentation, disloyalty,
evident bad faith, conflict of interest and mismanagement in directing the affairs of Mr. & Ms. to the
damage and prejudice of Mr. & Ms. and its stockholders, including petitioner.

Alleging before the SEC that she had been the Treasurer and a Member of the Board of Directors of
Mr. & Ms. from the time it was incorporated on 29 October 1976 to 11 April 1989, and was the
registered owner of 1,000 shares of stock out of the 4,088 total outstanding shares, petitioner
complained of irregularities committed from 1983 to 1987 by Eugenia D. Apostol, President and
Chairperson of the Board of Directors. Petitioner claimed that except for the sale of the
name Philippine Inquirer to Philippine Daily Inquirer (PDI hereafter) all other transactions and
agreements entered into by Mr. & Ms. with PDI were not supported by any bond and/or stockholders'
resolution. And, upon instructions of Eugenia D. Apostol, Mr. & Ms. made several cash advances to
PDI on various occasions amounting to P3.276 million. On some of these borrowings PDI paid no
interest whatsoever. Despite the fact that the advances made by Mr. & Ms. to PDI were booked as
advances to an affiliate, there existed no board or stockholders' resolution, contract nor any other
document which could legally authorize the creation of and support to an affiliate.

Petitioner further alleged that respondents Eugenia and Jose Apostol were stockholders, directors and
officers in both Mr. & Ms. and PDI. In fact on 2 May 1986 respondents Eugenia D. Apostol, Leticia J.
Magsanoc and Adoracion G. Nuyda subscribed to PDI shares of stock at P50,000.00 each or a total of
P150,000.00. The stock subscriptions were paid for by Mr. & Ms. and initially treated, as receivables
from officers and employees. But, no payments were ever received from respondents, Magsanoc and
Nuyda.

The petition principally sought to (a) enjoin respondents Eugenia D. Apostol and Jose A. Apostol from
further acting as president-director and director, respectively, of Mr. & Ms. and disbursing any money
or funds except for the payment of salaries and similar expenses in the ordinary course of business,
and from disposing of their Mr. & Ms. shares; (b) enjoin respondents Apostol spouses, Magsanoc and
Nuyda from disposing of the PDI shares of stock registered in their names; (c) compel respondents
Eugenia and Jose Apostol to account for and reconvey all profits and benefits accruing to them as a
result of their improper and fraudulent acts; (d) compel respondents Magsanoc and Nuyda to account
for and reconvey to Mr. & Ms. all shares of stock paid from cash advances from it and all accessions or
fruits thereof; (e) hold respondents Eugenia and Jose Apostol liable for damages suffered by Mr. & Ms.
and the other stockholders, including petitioner, by reason of their improper and fraudulent acts; (f)
appoint a management committee for Mr. & Ms. during the pendency of the suit to prevent further
dissipation and loss of its assets and funds as well as paralyzation of business operations; and, (g)

253
direct the management committee for Mr. & Ms. to file the necessary action to enforce its rights
against PDI and other third parties.

Private respondents Apostol spouses, Magsanoc, Nuyda, and Mr. & Ms., on the other hand, refuted
the allegations of petitioner by starting with a narration of the beginnings of Mr. & Ms. They
recounted that on 9 March 1976 Ex Libris Publishing Co., Inc. (Ex Libris hereafter) was incorporated for
the purpose of publishing a weekly magazine. Its original principal stockholders were spouses Senator
Juan Ponce Enrile (then Minister of National Defense) and Cristina Ponce Enrile through Jaka
Investments Corporation (JAKA hereafter), and respondents Eugenia and Jose Apostol. When Ex
Libris suffered financial difficulties, JAKA and the Apostols, together with new investors Luis
Villafuerte and Ramon Siy, restructured Ex Libris by organizing a new corporation known as Mr. & Ms.

The original stockholders of Mr. & Ms., i.e., JAKA, Luis Villafuerte, Ramon Siy, the Apostols and Ex
Libris continued to be virtually the same up to 1989. Thereafter it was agreed among them that, they
being close friends, Mr. & Ms. would be operated as a partnership or a close corporation; respondent
Eugenia D. Apostol would manage the affairs of Mr. & Ms.; and, no shares of stock would be sold to
third parties without first offering the shares to the other stockholders so that transfers would be
limited to and only among the original stockholders.

Private respondents also asserted that respondent Eugenia D. Apostol had been informing her
business partners of her actions as manager, and obtaining their advice and consent. Consequently
the other stockholders consented, either expressly or impliedly, to her management. They offered no
objections. As a result, the business prospered. Thus, as shown in a statement prepared by the
accounting firm Punongbayan and Araullo, there were increases from 1976 to 1988 in the total assets
of Mr. & Ms. from P457,569.00 to P10,143,046.00; in the total stockholders' equity from P203,378.00
to P2,324,954.00; and, in the net sales, from P301,489.00 to P16,325,610.00. Likewise, cash dividends
were distributed and received by the stockholders.

Private respondents further contended that petitioner, being merely a holder-in-trust of JAKA shares,
only represented and continued to represent JAKA in the board. In the beginning, petitioner
cooperated with and assisted the management until mid-1986 when relations between her and her
principals on one hand, and respondent Eugenia D. Apostol on the other, became strained due to
political differences. Hence from mid-1986 to mid-1988 petitioner refused to speak with respondent
Eugenia D. Apostol, and in 1988 the former became openly critical of the management of the latter.
Nevertheless, respondent Eugenia D. Apostol always made available to petitioner and her
representatives all the books of the corporation.

Private respondents averred that all the PDI shares owned by respondents Eugenia and Jose Apostol
were acquired through their own private funds and that the loan of P750,000.00 by PDI from Mr. &
Ms. had been fully paid with 20% interest per annum. And, it was PDI, not Mr. & Ms., which loaned
off P250,000.00 each to respondents Magsanoc and Nuyda. Private respondents further argued that
petitioner was not the true party to this case, the real party being JAKA which continued to be the
true stockholder of Mr. & Ms.; hence, petitioner did not have the personality to initiate and prosecute
the derivative suit which, consequently, must be dismissed.

On 6 December 1990, the SEC Hearing Panel 3 issued a writ of preliminary injunction enjoining private
respondents from disbursing any money except for the payment of salaries and other similar
expenses in the regular course of business. The Hearing Panel also enjoined respondent Apostol
spouses, Nuyda and Magsanoc from disposing of their PDI shares, and further ruled —

. . . respondents' contention that petitioner is not entitled to the provisional reliefs

prayed for because she is not the real party in interest . . . is bereft of any merit. No
less than respondents' Amended Answer, specifically paragraph V, No. 8 on
Affirmative Allegations/Defenses states that "The petitioner being herself a minor
stockholder and holder-in-trust of JAKA shares represented and continues to
represent JAKA in the Board." This statement refers to petitioner sitting in the board
of directors of Mr. & Ms. in two capacities, one as a minor stockholder and the other
as the holder in trust of the shares of JAKA in Mr. & Ms. Such reference alluded to by

254
 the respondents indicates an admission on respondents' part of the petitioner's legal
personality to file a derivative suit for the benefit of the respondent Mr. & Ms.
Publishing Co., Inc.

The Hearing Panel however denied petitioner's prayer for the constitution of a management
committee.

On 25 March 1991 private respondents filed a Motion to Amend Pleadings to Conform to

Evidence alleging that the issue of whether petitioner is the real party-in-interest had been tried by
express or implied consent of the parties through the admission of documentary exhibits presented
by private respondents proving that the real party-in-interest was JAKA, not petitioner Bitong. As such,
No. 8, par. V (Affirmative Allegations/Defenses), Answer to the Amended Petition, was stipulated due
to inadvertence and excusable mistake and should be amended. On 10 October 1991 the Hearing
Panel denied the motion for amendment.

Petitioner testified at the trial that she became the registered and beneficial owner of 997 shares of
stock of Mr. & Ms. out of the 4,088 total outstanding shares after she acquired them from JAKA
through a deed of sale executed on 25 July 1983 and recorded in the Stock and Transfer Book of Mr. &
Ms. under Certificate of Shares of Stock No. 008. She pointed out that Senator Enrile decided that
JAKA should completely divest itself of its holdings in Mr. & Ms. and this resulted in the sale to her of
JAKA's interest and holdings in that publishing firm.

Private respondents refuted the statement of petitioner that she was a stockholder of Mr. & Ms. since
25 July 1983 as respondent Eugenia D. Apostol signed Certificate of Stock No. 008 only on 17 March
1989, and not on 25 July 1983. Respondent Eugenia D. Apostol explained that she stopped using her
long signature (Eugenia D. Apostol) in 1987 and changed it to E.D. Apostol, the signature which
appeared on the face of Certificate of Stock No. 008 bearing the date 25 July 1983. And, since the
Stock and Transfer Book which petitioner presented in evidence was not registered with the SEC, the
entries therein including Certificate of Stock No. 008 were fraudulent. Respondent Eugenia D. Apostol
claimed that she had not seen the Stock and Transfer Book at anytime until 21 March 1989 when it
was delivered by petitioner herself to the office of Mr. & Ms., and that petitioner repeatedly referred
to Senator Enrile as "my principal" during the Mr. & Ms. board meeting of 22 September 1988, seven
(7) times no less.

On 3 August 1993, after trial on the merits, the SEC Hearing Panel dismissed the derivative suit filed by
petitioner and dissolved the writ of preliminary injunction barring private respondents from disposing
of their PDI shares and any of Mr. & Ms. assets. The Hearing Panel ruled that there was no serious
mismanagement of Mr. & Ms. which would warrant drastic corrective measures. It gave credence to
the assertion of respondent Eugenia D. Apostol that Mr. & Ms. was operated like a close corporation
where important matters were discussed and approved through informal consultations at breakfast
conferences. The Hearing Panel also concluded that while the evidence presented tended to show
that the real party-in-interest indeed was JAKA and/or Senator Enrile, it viewed the real issue to be
the alleged mismanagement, fraud and conflict of interest on the part of respondent Eugenia D.
Apostol, and allowed petitioner to prosecute the derivative suit if only to resolve the real issues.
Hence, for this purpose, the Hearing Panel considered petitioner to be the real party-in-interest.

On 19 August 1993 respondent Apostol spouses sold the PDI shares registered in the name of their
holding company, JAED Management Corporation, to Edgardo B. Espiritu. On 25 August 1993
petitioner Bitong appealed to the SEC En Banc.

On 24 January 1994 the SEC En Banc 4 reversed the decision of the Hearing Panel and, among others,
ordered private respondents to account for, return and deliver to Mr. & Ms. any and all funds and
assets that they disbursed from the coffers of the corporation including shares of stock, profits,
dividends and/or fruits that they might have received as a result of their investment in PDI, including
those arising from the P150,000.00 advanced to respondents Eugenia D. Apostol, Leticia J. Magsanoc
and Adoracion G. Nuyda; account for and return any profits and fruits of all amounts irregularly or
unlawfully advanced to PDI and other third persons; and, cease and desist from managing the affairs
of Mr. & Ms. for reasons of fraud, mismanagement, disloyalty and conflict of interest.

255
The SEC En Banc also declared the 19 August 1993 sale of the PDI shares of JAED Management
Corporation to Edgardo B. Espiritu to be tainted with fraud, hence, null and void, and considered Mr.
& Ms. as the true and lawful owner of all the PDI shares acquired by respondents Eugenia D. Apostol,
Magsanoc and Nuyda. It also declared all subsequent transferees of such shares as trustees for the
benefit of Mr. & Ms. and ordered them to forthwith deliver said shares to Mr. & Ms.

Consequently, respondent Apostol spouses, Magsanoc, Nuyda, and Mr. & Ms. filed a petition for
review before respondent Court of Appeals, docketed as CA-GR No. SP 33291, while respondent
Edgardo B. Espiritu filed a petition for certiorari and prohibition also before respondent Court of
Appeals, docketed as CA-GR No. SP 33873. On 8 December 1994 the two (2) petitions were
consolidated.

On 31 August 1995 respondent appellate court rendered a decision reversing the SEC En Banc and
held that from the evidence on record petitioner was not the owner of any share of stock in Mr. & Ms.
and therefore not the real party-in-interest to prosecute the complaint she had instituted against
private respondents. Accordingly, petitioner alone and by herself as an agent could not file a
derivative suit in behalf of her principal. For not being the real party-in-interest, petitioner's complaint
did not state a cause of action, a defense which was never waived; hence, her petition should have
been dismissed. Respondent appellate court ruled that the assailed orders of the SEC were issued in
excess of jurisdiction, or want of it, and thus were null and void. 5 On 18 January 1996, petitioner's
motion for reconsideration was denied for lack of merit.

Before this Court, petitioner submits that in paragraph 1 under the caption "I. The Parties" of
her Amended Petition before the SEC, she stated that she was a stockholder and director of Mr. & Ms.
In par. 1 under the caption "II. The Facts" she declared that she "is the registered owner of 1,000
shares of stock of Mr. & Ms. out of the latter's 4,088 total outstanding shares" and that she was a
member of the Board of Directors of Mr. & Ms. and treasurer from its inception until 11 April 1989.
Petitioner contends that private respondents did not deny the above allegations in their answer and
therefore they are conclusively bound by this judicial admission. Consequently, private respondents'
admission that petitioner has 1,000 shares of stock registered in her name in the books of Mr. & Ms.
forecloses any question on her status and right to bring a derivative suit on behalf of Mr. & Ms.

Not necessarily. A party whose pleading is admitted as an admission against interest is entitled to
overcome by evidence the apparent inconsistency, and it is competent for the party against whom the
pleading is offered to show that the statements were inadvertently made or were made under a
mistake of fact. In addition, a party against whom a single clause or paragraph of a pleading is offered
may have the right to introduce other paragraphs which tend to destroy the admission in the
paragraph offered by the adversary. 6

The Amended Petition before the SEC alleges —

I. THE PARTIES

1. Petitioner is a stockholder and director of Mr. & Ms. . . . .

II. THE FACTS

1. Petitioner is the registered owner of 1,000 shares of stock of Mr. & Ms. out of the
latter's 4,088 total outstanding shares. Petitioner, at all times material to this petition,
is a member of the Board of Directors of Mr. & Ms. and from the inception of Mr. &
Ms. until 11 April 1989 was its treasurer . . .

On the other hand, the Amended Answer to the Amended Petition states —

I. PARTIES

1. Respondents admit the allegations contained in Caption I, pars. 1 to 4 of the

Petition referring to the personality, addresses and capacity of the parties to the

256
 petition except . . . but qualify said admission insofar as they are limited, qualified
and/or expanded by allegations in the Affirmative Allegations/Defenses . . .

II. THE FACTS

1. Respondents admit paragraph 1 of the Petition, but qualify said admission as to the
beneficial ownership of the shares of stock registered in the name of the petitioner,
the truth being as stated in the Affirmative Allegations/Defenses of this Answer . . .

V. AFFIRMATIVE ALLEGATIONS/DEFENSES

Respondents respectfully allege by way of Affirmative Allegations/Defenses, that . . . .

3. Fortunately, respondent Apostol was able to convince Mr. Luis Villafuerte to take
interest in the business and he, together with the original investors, restructured the
Ex Libris Publishing Company by organizing a new corporation known as Mr. & Ms.
Publishing Co., Inc. . . . Mr. Luis Villafuerte contributed his own P100,000.00. JAKA and
respondent Jose Z. Apostol, original investors of Ex Libris contributed P100,000.00
each; Ex Libris Publishing Company was paid 800 shares for the name of Mr. & Ms.
magazine and goodwill. Thus, the original stockholders of respondent Mr. & Ms. were:

Cert./No./Date Name of Stockholder No. of Shares %

001-9-15-76 JAKA Investments Corp. 1,000 21%

002-9-15-76 Luis Villafuerte 1,000 21%

003-9-15-76 Ramon L. Siy 1,000 21%

004-9-15-76 Jose Z. Apostol 1,000 21%

005-9-15-76 Ex Libris Publishing Co. 800 16%

—— ——

4,800 96%

4. The above-named original stockholders of respondent Mr. & Ms. continue to be

virtually the same stockholders up to this date . . . .

8. The petitioner being herself a minor stockholder and holder-in-trust of JAKA shares,
represented and continues to represent JAKA in the Board . . . .

21. Petitioner Nora A. Bitong is not the true party to this case, the true party being
JAKA Investments Corporation which continues to be the true stockholder of
respondent Mr. & Ms. Publishing Co., Inc., consequently, she does not have the
personality to initiate and prosecute this derivative suit, and should therefore be
dismissed . . . .

The answer of private respondents shows that there was no judicial admission that petitioner was a
stockholder of Mr. & Ms. to entitle her to file a derivative suit on behalf of the corporation. Where the
statements of the private respondents were qualified with phrases such as, "insofar as they are
limited, qualified and/or expanded by," "the truth being as stated in the Affirmative
Allegations/Defenses of this Answer" they cannot be considered definite and certain enough, cannot
be construed as judicial admissions. 7

More so, the affirmative defenses of private respondents directly refute the representation of
petitioner that she is a true and genuine stockholder of Mr. & Ms. by stating unequivocally that

257
petitioner is not the true party to the case but JAKA which continues to be the true stockholder of Mr.
& Ms. In fact, one of the reliefs which private respondents prayed for was the dismissal of the petition
on the ground that petitioner did not have the legal interest to initiate and prosecute the same.

When taken in its totality, the Amended Answer to the Amended Petition, or even the Answer to
the Amended Petition alone, clearly raises an issue as to the legal personality of petitioner to file the
complaint. Every alleged admission is taken as an entirety of the fact which makes for the one side
with the qualifications which limit, modify or destroy its effect on the other side. The reason for this is,
where part of a statement of a party is used against him as an admission, the court should weigh any
other portion connected with the statement, which tends to neutralize or explain the portion which is
against interest.

In other words, while the admission is admissible in evidence, its probative value is to be determined
from the whole statement and others intimately related or connected therewith as an integrated unit.
Although acts or facts admitted do not require proof and cannot be contradicted, however,
evidence aliunde can be presented to show that the admission was made through palpable
mistake. 8 The rule is always in favor of liberality in construction of pleadings so that the real matter in
dispute may be submitted to the judgment of the court. 9

Petitioner also argues that since private respondents failed to appeal the 6 December 1990 Order and
the 3 August 1993 Decision of the SEC Hearing Panel declaring that she was the real party-in-interest
and had legal personality to sue, they are now estopped from questioning her personality.

Not quite. The 6 December 1990 Order is clearly an interlocutory order which cannot be considered as
having finally resolved on the merits the issue of legal capacity of petitioner. The SEC Hearing Panel
discussed the issue of legal capacity solely for the purpose of ruling on the application for writ of
preliminary injunction as an incident to the main issues raised in the complaint. Being a mere
interlocutory order, it is not appealable.

For, an interlocutory order refers to something between the commencement and end of the suit
which decides some point or matter but it is not the final decision of the whole controversy. 10 Thus,
even though the 6 December 1990 Order was adverse to private respondents, they had the legal right
and option not to elevate the same to the SEC En Banc but rather to await the decision which resolves
all the issues raised by the parties and to appeal therefrom by assigning all errors that might have
been committed by the Hearing Panel.

On the other hand, the 3 August 1993 Decision of the Hearing Panel dismissing the derivative suit for
failure to prove the charges of mismanagement, fraud, disloyalty and conflict of interest and
dissolving the writ of preliminary injunction, was favorable to private respondents. Hence, they were
not expected to appeal therefrom.

In fact, in the 3 August 1993 Decision, the Hearing Panel categorically stated that the evidence
presented showed that the real party-in-interest was not petitioner Bitong but JAKA and/or Senator
Enrile. Petitioner was merely allowed to prosecute her complaint so as not to sidetrack "the real issue
to be resolved (which) was the allegation of mismanagement, fraud and conflict of interest allegedly
committed by respondent Eugenia D. Apostol." It was only for this reason that petitioner was
considered to be capacitated and competent to file the petition.

Accordingly, with the dismissal of the complaint of petitioner against private respondents, there was
no compelling reason for the latter to appeal to the SEC En Banc. It was in fact petitioner's turn as the
aggrieved party to exercise her right to appeal from the decision. It is worthy to note that even during
the appeal of petitioner before the SEC En Banc private respondents maintained their vigorous
objection to the appeal and reiterated petitioner's lack of legal capacity to sue before the SEC.

Petitioner then contends that she was a holder of the proper certificates of shares of stock and that
the transfer was recorded in the Stock and Transfer Book of Mr. & Ms. She invokes Sec. 63 of The
Corporation Code which provides that no transfer shall be valid except as between the parties until
the transfer is recorded in the books of the corporation, and upon its recording the corporation is

258
bound by it and is estopped to deny the fact of transfer of said shares. Petitioner alleges that even in
the absence of a stock certificate, a stockholder solely on the strength of the recording in the stock
and transfer book can exercise all the rights as stockholder, including the right to file a derivative suit
in the name of the corporation. And, she need not present a separate deed of sale or transfer in her
favor to prove ownership of stock.

Sec. 63 of The Corporation Code expressly provides —

Sec. 63. Certificate of stock and transfer of shares. — The capital stock of stock
corporations shall be divided into shares for which certificates signed by the president
or vice president, countersigned by the secretary or assistant secretary, and sealed
with the seal of the corporation shall be issued in accordance with the by-laws. Shares
of stock so issued are personal property and may be transferred by delivery of the
certificate or certificates indorsed by the owner or his attorney-in-fact or other person
legally authorized to make the transfer. No transfer however shall be valid except as
between the parties until the transfer is recorded in the books of the corporation
showing the names of the parties to the transaction, the date of the transfer, the
number of the certificate or certificates and the number of shares transferred . . . .

This provision above quoted envisions a formal certificate of stock which can be issued only upon
compliance with certain requisites. First, the certificates must be signed by the president or vice-
president, countersigned by the secretary or assistant secretary, and sealed with the seal of the
corporation. A mere typewritten statement advising a stockholder of the extent of his ownership in a
corporation without qualification and/or authentication cannot be considered as a formal certificate
of stock. 11 Second, delivery of the certificate is an essential element of its issuance. Hence, there is no
issuance of a stock certificate where it is never detached from the stock books although blanks therein
are properly filled up if the person whose name is inserted therein has no control over the books of
the company. 12 Third, the par value, as to par value shares, or the full subscription as to no par value
shares, must first be fully paid. Fourth, the original certificate must be surrendered where the person
requesting the issuance of a certificate is a transferee from a stockholder.

The certificate of stock itself once issued is a continuing affirmation or representation that the stock
described therein is valid and genuine and is at least prima facie evidence that it was legally issued in
the absence of evidence to the contrary. However, this presumption may be rebutted. 13 Similarly,
books and records of a corporation which include even the stock and transfer book are generally
admissible in evidence in favor of or against the corporation and its members to prove the corporate
acts, its financial status and other matters including one's status as a stockholder. They are ordinarily
the best evidence of corporate acts and proceedings.

However, the books and records of a corporation are not conclusive even against the corporation but
are prima facie evidence only. Parol evidence may be admitted to supply omissions in the records,
explain ambiguities, or show what transpired where no records were kept, or in some cases where
such records were contradicted. 14 The effect of entries in the books of the corporation which purport
to be regular records of the proceedings of its board of directors or stockholders can be destroyed by
testimony of a more conclusive character than mere suspicion that there was an irregularity in the
manner in which the books were kept. 15

The foregoing considerations are founded on the basic principle that stock issued without authority
and in violation of law is void and confers no rights on the person to whom it is issued and subjects
him to no liabilities. 16 Where there is an inherent lack of power in the corporation to issue the stock,
neither the corporation nor the person to whom the stock is issued is estopped to question its validity
since an estopped cannot operate to create stock which under the law cannot have existence. 17

As found by the Hearing Panel and affirmed by respondent Court of Appeals, there is overwhelming
evidence that despite what appears on the certificate of stock and stock and transfer book, petitioner
was not a bona fide stockholder of Mr. & Ms. before March 1989 or at the time the complained acts
were committed to qualify her to institute a stockholder's derivative suit against private respondents.

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Aside from petitioner's own admissions, several corporate documents disclose that the true party-in-
interest is not petitioner but JAKA.

Thus, while petitioner asserts in her petition that Certificate of Stock No. 008 dated 25 July 1983 was
issued in her name, private respondents argue that this certificate was signed by respondent Eugenia
D. Apostol as President only in 1989 and was fraudulently antedated by petitioner who had
possession of the Certificate Book and the Stock and Transfer Book. Private respondents stress that
petitioner's counsel entered into a stipulation on record before the Hearing Panel that the certificate
was indeed signed by respondent Apostol only in 1989 and not in 1983.

In her reply, petitioner admits that while respondent Eugenia D. Apostol signed the Certificate of
Stock No. 008 in petitioner's name only in 1989, it was issued by the corporate secretary in 1983 and
that the other certificates covering shares in Mr. & Ms. had not yet been signed by respondent
Eugenia D. Apostol at the time of the filing of the complaint with the SEC although they were issued
years before.

Based on the foregoing admission of petitioner, there is no truth to the statement written in
Certificate of Stock No. 008 that the same was issued and signed on 25 July 1983 by its duly authorized
officers specifically the President and Corporate Secretary because the actual date of signing thereof
was 17 March 1989. Verily, a formal certificate of stock could not be considered issued in
contemplation of law unless signed by the president or vice-president and countersigned by the
secretary or assistant secretary.

In this case, contrary to petitioner's submission, the Certificate of Stock No. 008 was only legally
issued on 17 March 1989 when it was actually signed by the President of the corporation, and not
before that date. While a certificate of stock is not necessary to make one a stockholder, e.g., where
he is an incorporator and listed as stockholder in the articles of incorporation although no certificate
of stock has yet been issued, it is supposed to serve as paper representative of the stock itself and of
the owner's interest therein. Hence, when Certificate of Stock No. 008 was admittedly signed and
issued only on 17 March 1989 and not on 25 July 1983, even as it indicates that petitioner owns 997
shares of stock of Mr. & Ms., the certificate has no evidentiary value for the purpose of proving that
petitioner was a stockholder since 1983 up to 1989.

And even the factual antecedents of the alleged ownership by petitioner in 1983 of shares of stock of
Mr. & Ms. are indistinctive if not enshrouded in inconsistencies. In her testimony before the Hearing
Panel, petitioner said that early in 1983, to relieve Mr. & Ms. from political pressure, Senator Enrile
decided to divest the family holdings in Mr. & Ms. as he was then part of the government and Mr. &
Ms. was evolving to be an opposition newspaper. The JAKA shares numbering 1,000 covered by
Certificate of Stock No. 001 were thus transferred to respondent Eugenia D. Apostol in trust or in
blank. 18

Petitioner now claims that a few days after JAKA's shares were transferred to respondent Eugenia D.
Apostol, Senator Enrile sold to petitioner 997 shares of JAKA. For this purpose, a deed of sale was
executed and antedated to 10 May 1983. 19 This submission of petitioner is however contradicted by
the records which show that a deed of sale was executed by JAKA transferring 1,000 shares of Mr. &
Ms. to respondent Apostol on 10 May 1983 and not to petitioner. 20

Then Senator Enrile testified that in May or June 1983 he was asked at a media interview if his family
owned shares of stock in Mr. & Ms. Although he and his family were stockholders at that time he
denied it so as not to embarrass the magazine. He called up petitioner and instructed her to work out
the documentation of the transfer of shares from JAKA to respondent Apostol to be covered by a
declaration of trust. His instruction was to transfer the shares of JAKA in Mr. & Ms. and Ex Libris to
respondent Apostol as a nominal holder. He then finally decided to transfer the shareholdings to
petitioner. 21

When asked if there was any document or any written evidence of that divestment in favor of
petitioner, Senator Enrile answered that there was an endorsement of the shares of stock. He said
that there was no other document evidencing the assignment to petitioner because the stocks were

260
personal property that could be transferred even orally. 22 Contrary to Senator Enrile's testimony,
however, petitioner maintains that Senator Enrile executed a deed of sale in her favor.

A careful perusal of the records shows that neither the alleged endorsement of Certificate of Stock No.
001 in the name of JAKA nor the alleged deed of sale executed by Senator Enrile directly in favor of
petitioner could have legally transferred or assigned on 25 July 1983 the shares of stock in favor of
petitioner because as of 10 May 1983 Certificate of Stock No. 001 in the name of JAKA was already
cancelled and a new one, Certificate of Stock No. 007, issued in favor of respondent Apostol by virtue
of a Declaration of Trust and Deed of Sale. 23

It should be emphasized that on 10 May 1983 JAKA executed, a deed of sale over 1,000 Mr. & Ms.
shares in favor of respondent Eugenio D. Apostol. On the same day, respondent Apostol signed a
declaration of trust stating that she was the registered owner of 1,000 Mr. & Ms. shares covered by
Certificate of Stock No. 007.

The declaration of trust further showed that although respondent Apostol was the registered owner,
she held the shares of stock and dividends which might be paid in connection therewith solely in trust
for the benefit of JAKA, her principal. It was also stated therein that being a trustee, respondent
Apostol agreed, on written request of the principal, to assign and transfer the shares of stock and any
and all such distributions or dividends unto the principal or such other person as the principal would
nominate or appoint.

Petitioner was well aware of this trust, being the person in charge of this documentation and being
one of the witnesses to the execution of this
document. 24 Hence, the mere alleged endorsement of Certificate of Stock No. 001 by Senator Enrile or
by a duly authorized officer of JAKA to effect the transfer of shares of JAKA to petitioner could not
have been legally feasible because Certificate of Stock No. 001 was already canceled by virtue of the
deed of sale to respondent Apostol.

And, there is nothing in the records which shows that JAKA had revoked the trust it reposed on
respondent Eugenia D. Apostol. Neither was there any evidence that the principal had requested her
to assign and transfer the shares of stock to petitioner. If it was true that the shares of stock covered
by Certificate of Stock No. 007 had been transferred to petitioner, the person who could legally
endorse the certificate was private respondent Eugenia D. Apostol, she being the registered owner
and trustee of the shares of stock covered by Certificate of Stock No. 007. It is a settled rule that the
trustee should endorse the stock certificate to validate the cancellation of her share and to have the
transfer recorded in the books of the corporation. 25

In fine, the records are unclear on how petitioner allegedly acquired the shares of stock of JAKA.
Petitioner being the chief executive officer of JAKA and the sole person in charge of all business and
financial transactions and affairs of JAKA 26 was supposed to be in the best position to show
convincing evidence on the alleged transfer of shares to her, if indeed there was a transfer.
Considering that petitioner's status is being questioned and several factual circumstances have been
presented by private respondents disproving petitioner's claim, it was incumbent upon her to submit
rebuttal evidence on the manner by which she allegedly became a stockholder. Her failure to do so
taken in the light of several substantial inconsistencies in her evidence is fatal to her case.

The rule is that the endorsement of the certificate of stock by the owner or his attorney-in-fact or any
other person legally authorized to make the transfer shall be sufficient to effect the transfer of shares
only if the same is coupled with delivery. The delivery of the stock certificate duly endorsed by the
owner is the operative act of transfer of shares from the lawful owner to the new transferee.

Thus, for a valid transfer of stocks, the requirements are as follows: (a) There must be delivery of the
stock certificate; (b) The certificate must be endorsed by the owner or his attorney-in-fact or other
persons legally authorized to make the transfer; and, (c) to be valid against third parties, the transfer
must be recorded in the books of the corporation. 27 At most, in the instant case, petitioner has
satisfied only the third requirement. Compliance with the first two requisites has not been clearly and
sufficiently shown.

261
Considering that the requirements provided under Sec. 63 of The Corporation Code should be
mandatorily complied with, the rule on presumption of regularity cannot apply. The regularity and
validity of the transfer must be proved. As it is, even the credibility of the stock and transfer book and
the entries thereon relied upon by petitioner to show compliance with the third requisite to prove
that she was a stockholder since 1983 is highly doubtful.

The records show that the original stock and transfer book and the stock certificate book of Mr. & Ms.
were in the possession of petitioner before their custody was transferred to the Corporate Secretary,
Atty. Augusto San Pedro. 28 On 25 May 1988, Assistant Corporate Secretary Renato Jose Unson wrote
Mr. & Ms. about the lost stock and transfer book which was also noted by the corporation's external
auditors, Punongbayan and Araullo, in their audit. Atty. Unson even informed respondent Eugenia D.
Apostol as President of Mr. & Ms. that steps would be undertaken to prepare and register a new
Stock and Transfer Book with the SEC. Incidentally, perhaps strangely, upon verification with the SEC,
it was discovered that the general file of the corporation with the SEC was missing. Hence, it was even
possible that the original Stock and Transfer Book might not have been registered at all.

On 20 October 1988 respondent Eugenia D. Apostol wrote Atty. Augusto San Pedro noting the
changes he had made in the Stock and Transfer Book without prior notice to the corporate
officers. 29 In the 27 October 1988 directors' meeting, respondent Eugenia D. Apostol asked about the
documentation to support the changes in the Stock and Transfer Book with regard to the JAKA shares.
Petitioner answered that Atty. San Pedro made the changes upon her instructions conformably with
established practice. 30

This simply shows that as of 1988 there still existed certain issues affecting the ownership of the JAKA
shares, thus raising doubts whether the alleged transactions recorded in the Stock and Transfer Book
were proper, regular and authorized. Then, as if to magnify and compound the uncertainties in the
ownership of the shares of stock in question, when the corporate secretary resigned, the Stock and
Transfer Book was delivered not to the corporate office where the book should be kept but to
petitioner. 31

That JAKA retained its ownership of its Mr. & Ms. shares was clearly shown by its receipt of the
dividends issued in December 1986. 32 This only means, very obviously, that Mr. & Ms. shares in
question still belonged to JAKA and not to petitioner. For, dividends are distributed to stockholders
pursuant to their right to share in corporate profits. When a dividend is declared, it belongs to the
person who is the substantial and beneficial owner of the stock at the time regardless of when the
distribution profit was earned. 33

Finally, this Court takes notice of the glaring and open admissions of petitioner made, not just seven
(7) but nine (9) times, during the 22 September 1988 meeting of the board of directors that the Enriles
were her principals or shareholders, as shown by the minutes thereof which she duly signed 34 —

5. Mrs. E. Apostol explained to the Directors that through her efforts, the asset base of
the Company has improved and profits were realized. It is for this reason that the
Company has declared a 100% cash dividend in 1986. She said that it is up for the
Board to decide based on this performance whether she should continue to act as
Board Chairman or not. In this regard, Ms. N.A. Bitong expressed her recollection of
how Ex-Libris/Mr. & Ms. were organized and her participation for and on behalf of her
principals, as follows: She recalled that her principals were invited by Mrs. E. Apostol
to invest in Ex-Libris and eventually Mr. & Ms. The relationship between her
principals and Mrs. E. Apostol made it possible for the latter to have access to several
information concerning certain political events and issues. In many instances, her
principals supplied first hand and newsworthy information that made Mr. & Ms. a
popular
paper . . . .

6. According to Ms. Bitong, her principals were instrumental in helping Mr. & Ms.
survive during those years that it was cash strapped . . . . Ms. N.A. Bitong pointed out

262
 that the practice of using the former Minister's influence and stature in the
government is one thing which her principals themselves are strongly against . . . .

7. . . . . At this point, Ms. N. Bitong again expressed her recollection of the subject
matter as follows: (a) Mrs. E. Apostol, she remembers, brought up the concept of a
cooperative-ran newspaper company in one of her breakfast session with her
principals sometime during the end of 1985. Her principals when asked for an opinion,
said that they recognized the concept as something very noble and visible . . . . Then
Ms. Bitong asked a very specific question — "When you conceptualized Ex-Libris and
Mr. & Ms., did you not think of my shareholders the Ponce Enriles as liabilities? How
come you associated yourself with them then and not now? What is the difference?"
Mrs. Apostol did not answer the question.

The admissions of a party against his interest inscribed upon the record books of a corporation are
competent and persuasive evidence against him. 35 These admissions render nugatory any argument
that petitioner is a bona fide stockholder of Mr. & Ms. at any time before 1988 or at the time the acts
complained of were committed. There is no doubt that petitioner was an employee of JAKA as its
managing officer, as testified to by Senator Enrile himself. 36 However, in the absence of a special
authority from the board of directors of JAKA to institute a derivative suit for and in its behalf,
petitioner is disqualified by law to sue in her own name. The power to sue and be sued in any court by
a corporation even as a stockholder is lodged in the board of directors that exercises its corporate
powers and not in the president or officer thereof. 37

It is well settled in this jurisdiction that where corporate directors are guilty of a breach of trust, not of
mere error of judgment or abuse of discretion, and intracorporate remedy is futile or useless, a
stockholder may institute a suit in behalf of himself and other stockholders and for the benefit of the
corporation, to bring about a redress of the wrong inflicted directly upon the corporation and
indirectly upon the stockholders. 38 The stockholder's right to institute a derivative suit is not based on
any express provision of The Corporation Code but is impliedly recognized when the law makes
corporate directors or officers liable for damages suffered by the corporation and its stockholders for
violation of their fiduciary duties.

Hence, a stockholder may sue for mismanagement, waste or dissipation of corporate assets because
of a special injury to him for which he is otherwise without redress. 39 In effect, the suit is an action for
specific performance of an obligation owed by the corporation to the stockholders to assist its rights
of action when the corporation has been put in default by the wrongful refusal of the directors or
management to make suitable measures for its protection. 40

The basis of a stockholder's suit is always one in equity. However, it cannot prosper without first
complying with the legal requisites for its institution. The most important of these is the bona
fide ownership by a stockholder of a stock in his own right at the time of the transaction complained
of which invests him with standing to institute a derivative action for the benefit of the corporation. 41

WHEREFORE, the petition is DENIED. The 31 August 1995 Decision of the Court of Appeals dismissing
the complaint of petitioner Nora A. Bitong in CA-G.R. No. SP 33291, and granting the petition
for certiorari and prohibition filed by respondent Edgardo U. Espiritu as well as annulling the 5
November 1993, 24 January 1993 and 18 February 1994 Orders of the SEC En Banc in CA-G.R. No. SP
33873, is AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Vitug and Quisumbing, JJ., concur.

Panganiban, J., took no part.

G.R. No. 125901 March 8, 2001

263
EDGARDO A. TIJING and BIENVENIDA R TIJING, petitioners,
vs.
COURT OF APPEALS (Seventh Division) and ANGELITA DIAMANTE, respondents.

QUISUMBING, J.:

For review is the decision of the Court of Appeals dated March 6, 1996, in CA-G.R. SP No. 39056,
reversing the decision of the Regional Trial Court in a petition for habeas corpus of Edgardo Tijing, Jr.,
allegedly the child of petitioners.

Petitioners are husband and wife. They have six children. The youngest is Edgardo Tijing, Jr., who was
born on April 27, 1989, at the clinic of midwife and registered nurse Lourdes Vasquez in Sta. Ana, Manila.
Petitioner Bienvenida served as the laundrywoman of private respondent Angelita Diamante, then a
resident of Tondo, Manila.

According to Bienvenida in August 1989, Angelita went to her house to fetch her for an urgent laundry
job. Since Bienvenida was on her way to do some marketing, she asked Angelita to wait until she
returned. She also left her four-month old son, Edgardo, Jr., under the care of Angelita as she usually let
Angelita take care of the child while Bienvenida was doing laundry.

When Bienvenida returned from the market, Angelita and Edgardo, Jr., were gone. Bienvenida forthwith
proceeded to Angelita's house in Tondo, Manila, but did not find them there. Angelita's maid told
Bienvenida that her employer went out for a stroll and told Bienvenida to come back later. She returned
to Angelita's house after three days, only to discover that Angelita had moved to another place.
Bienvenida then complained to her barangay chairman and also to the police who seemed unmoved by
her pleas for assistance.

Although estranged from her husband, Bienvenida could not imagine how her spouse would react to the
disappearance of their youngest child and this made her problem even more serious. As fate would have
it, Bienvenida and her husband reconciled and together, this time, they looked for their missing son in
other places. Notwithstanding their serious efforts, they saw no traces of his whereabouts.

Four years later or in October 1993, Bienvenida read in a tabloid about the death of Tomas Lopez,
allegedly the common-law husband of Angelita, and whose remains were lying in state in Hagonoy,
Bulacan.

Bienvenida lost no time in going to Hagonoy, Bulacan, where she allegedly saw her son Edgardo, Jr., for
the first time after four years. She claims that the boy, who was pointed out to her by Benjamin Lopez, a
brother of the late Tomas Lopez, was already named John Thomas Lopez.1 She avers that Angelita
refused to return to her the boy despite her demand to do so.

Bienvenida and Edgardo filed their petition for habeas corpus with the trial court in order to recover
their son. To substantiate their petition, petitioners presented two witnesses, namely, Lourdes Vasquez
and Benjamin Lopez. The first witness, Vasquez, testified that she assisted in the delivery of one Edgardo
Tijing, Jr. on April 27, 1989 at her clinic in Sta. Ana, Manila. She supported her testimony with her clinical
records.2 The second witness, Benjamin Lopez, declared that his brother, the late Tomas Lopez, could
not have possibly fathered John Thomas Lopez as the latter was sterile. He recalled that Tomas met an
accident and bumped his private part against the edge of a banca causing him excruciating pain and
eventual loss of his child-bearing capacity. Benjamin further declared that Tomas admitted to him that
John Thomas Lopez was only an adopted son and that he and Angelita were not blessed with children.3

For her part, Angelita claimed that she is the natural mother of the child. She asserts that at age 42, she
gave birth to John Thomas Lopez on April 27, 1989, at the clinic of midwife Zosima Panganiban in
Singalong, Manila. She added, though, that she has two other children with her real husband, Angel
Sanchez.4 She said the birth of John Thomas was registered by her common-law husband, Tomas Lopez,
with the local civil registrar of Manila on August 4, 1989.

264
On March 10, 1995, the trial court concluded that since Angelita and her common-law husband could
not have children, the alleged birth of John Thomas Lopez is an impossibility.5 The trial court also held
that the minor and Bienvenida showed strong facial similarity. Accordingly, it ruled that Edgardo Tijing,
Jr., and John Thomas Lopez are one and the same person who is the natural child of petitioners. The trial
court decreed:

WHEREFORE, PREMISES CONSIDERED, judgment is hereby rendered GRANTING the petition for
Habeas Corpus, as such, respondent Angelita Diamante is ordered to immediately release from
her personal custody minor John Thomas D. Lopez, and turn him over and/or surrender his
person to petitioners, Spouses Edgardo A. Tijing and Bienvenida R. Tijing, immediately upon
receipt hereof.

Branch Sheriff of this Court, Carlos Bajar, is hereby commanded to implement the decision of
this Court by assisting herein petitioners in the recovery of the person of their minor son,
Edgardo Tijing Jr., the same person as John Thomas D. Lopez.

SO ORDERED.6

Angelita seasonably filed her notice of appeal.7 Nonetheless, on August 3, 1994, the sheriff implemented
the order of the trial court by taking custody of the minor. In his report, the sheriff stated that Angelita
peacefully surrendered the minor and he turned over the custody of said child to petitioner Edgardo
Tijing.8

On appeal, the Court of Appeals reversed and set aside the decision rendered by the trial court. The
appellate court expressed its doubts on the propriety of the habeas corpus. In its view, the evidence
adduced by Bienvenida was not sufficient to establish that she was the mother of the minor. It ruled
that the lower court erred in declaring that Edgardo Tijing, Jr., and John Thomas Lopez are one and the
same person,9 and disposed of the case, thus:

IN VIEW OF THE FOREGOING, the decision of the lower court dated March 10, 1995 is hereby
REVERSED, and a new one entered dismissing the petition in Spec. Proc. No. 94-71606, and
directing the custody of the minor John Thomas Lopez to be returned to respondent Angelita
Diamante, said minor having been under the care of said respondent at the time of the filing of
the petition herein.

SO ORDERED.10

Petitioners sought reconsideration of the abovequoted decision which was denied. Hence, the instant
petition alleging:

THAT THE RESPONDENT COURT OF APPEALS COMMITTED A GRAVE ERROR WHEN IT DECLARED
THAT THE PETITIONERS' ACTION FOR HABEAS CORPUS IS MERELY SECONDARY TO THE
QUESTION OF FILIATION THAT THE PETITIONERS HAD LIKEWISE PROVEN.

II

THAT THE RESPONDENT COURT OF APPEALS ERRED IN REVERSING THE DECISION OF THE
REGIONAL TRIAL COURT DISMISSING THE PETITION FOR "HABEAS CORPUS" AND DIRECTING
THAT THE CUSTODY OF THE MINOR JOHN THOMAS LOPEZ WHO WAS PROVEN TO THE SAME
MINOR AS EDGARDO R. TIJING, JR., BE RETURNED TO THE PRIVATE RESPONDENT.11

In our view, the crucial issues for resolution are the following:

(1) Whether or not habeas corpus is the proper remedy?

265
 (2) Whether or not Edgardo Tijing, Jr., and John Thomas Lopez are one and the same person and
is the son of petitioners?

We shall discuss the two issues together since they are closely related.

The writ of habeas corpus extends to all cases of illegal confinement or detention by which any person is
deprived of his liberty, or by which the rightful custody of any person is withheld from the person
entitled thereto.12 Thus, it is the proper legal remedy to enable parents to regain the custody of a minor
child even if the latter be in the custody of a third person of his own free will. It may even be said that in
custody cases involving minors, the question of illegal and involuntary restraint of liberty is not the
underlying rationale for the availability of the writ as a remedy. Rather, it is prosecuted for the purpose
of determining the right of custody over a child.13 It must be stressed too that in habeas
corpus proceedings, the question of identity is relevant and material, subject to the usual presumptions
including those as to identity of the person.

In this case, the minor's identity is crucial in determining the propriety of the writ sought. Thus, it must
be resolved first whether the Edgardo Tijing, Jr., claimed by Bienvenida to be her son, is the same minor
named John Thomas Lopez, whom Angelita insists to be her offspring. We must first determine who
between Bienvenida and Angelita is the minor's biological mother. Evidence must necessarily be
adduced to prove that two persons, initially thought of to be distinct and separate from each other, are
indeed one and the same.14 Petitioners must convincingly establish that the minor in whose behalf the
application for the writ is made is the person upon whom they have rightful custody. If there is doubt on
the identity of the minor in whose behalf the application for the writ is made, petitioners cannot invoke
with certainty their right of custody over the said minor.

True, it is not the function of this Court to examine and evaluate the probative value of all evidence
presented to the concerned tribunal which formed the basis of its impugned decision, resolution or
order.15 But since the conclusions of the Court of Appeals contradict those of the trial court, this Court
may scrutinize the evidence on the record to determine which findings should be preferred as more
conformable to the evidentiary facts.

A close scrutiny of the records of this case reveals that the evidence presented by Bienvenida is
sufficient to establish that John Thomas Lopez is actually her missing son, Edgardo Tijing, Jr.

First, there is evidence that Angelita could no longer bear children. From her very lips, she admitted that
after the birth of her second child, she underwent ligation at the Martinez Hospital in 1970, before she
lived with Tomas Lopez without the benefit of marriage in 1974. Assuming she had that ligation
removed in 1978, as she claimed, she offered no evidence she gave birth to a child between 1978 to
1988 or for a period of ten years. The midwife who allegedly delivered the child was not presented in
court. No clinical records, log book or discharge order from the clinic were ever submitted.

Second, there is strong evidence which directly proves that Tomas Lopez is no longer capable of siring a
son. Benjamin Lopez declared in court that his brother, Tomas, was sterile because of the accident and
that Tomas admitted to him that John Thomas Lopez was only an adopted son. Moreover, Tomas Lopez
and his legal wife, Maria Rapatan Lopez, had no children after almost fifteen years together. Though
Tomas Lopez had lived with private respondent for fourteen years, they also bore no offspring.

Third, we find unusual the fact that the birth certificate of John Thomas Lopez was filed by Tomas Lopez
instead of the midwife and on August 4, 1989, four months after the alleged birth of the child. Under the
law, the attending physician or midwife in attendance at birth should cause the registration of such birth.
Only in default of the physician or midwife, can the parent register the birth of his child. The certificate
must be filed with the local civil registrar within thirty days after the birth.16 Significantly, the birth
certificate of the child stated Tomas Lopez and private respondent were legally married on October 31,
1974, in Hagonoy, Bulacan, which is false because even private respondent had admitted she is a
"common-law wife".17 This false entry puts to doubt the other data in said birth certificate.

Fourth, the trial court observed several times that when the child and Bienvenida were both in court,
the two had strong similarities in their faces, eyes, eyebrows and head shapes. Resemblance between a

266
minor and his alleged parent is competent and material evidence to establish parentage.18 Needless to
stress, the trial court's conclusion should be given high respect, it having had the opportunity to observe
the physical appearances of the minor and petitioner concerned.

Fifth, Lourdes Vasquez testified that she assisted in Bienvenida's giving birth to Edgardo Tijing, Jr., at her
clinic. Unlike private respondent, she presented clinical records consisting of a log book, discharge order
and the signatures of petitioners.

All these considered, we are constrained to rule that subject minor is indeed the son of petitioners. The
writ of habeas corpus is proper to regain custody of said child.

A final note. Parentage will still be resolved using conventional methods unless we adopt the modern
and scientific ways available. Fortunately, we have now the facility and expertise in using DNA test19 for
identification and parentage testing. The University of the Philippines Natural Science Research Institute
(UP-NSRI) DNA Analysis Laboratory has now the capability to conduct DNA typing using short tandem
repeat (STR) analysis. The analysis is based on the fact that the DNA of a child/person has two (2) copies,
one copy from the mother and the other from the father. The DNA from the mother, the alleged father
and child are analyzed to establish parentage.20 Of course, being a novel scientific technique, the use of
DNA test as evidence is still open to challenge.21 Eventually, as the appropriate case comes, courts
should not hesitate to rule on the admissibility of DNA evidence. For it was said, that courts should apply
the results of science when competently obtained in aid of situations presented, since to reject said
result is to deny progress.22 Though it is not necessary in this case to resort to DNA testing, in future it
would be useful to all concerned in the prompt resolution of parentage and identity issues.

WHEREFORE, the instant petition is GRANTED. The assailed DECISION of the Court of Appeals is
REVERSED and decision of the Regional Trial Court is REINSTATED. Costs against the private respondent.

SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ ., concur.

G.R. No. 131516. March 5, 2003

PEOPLE OF THE PHILIPPINES,Plaintiff-Appellee, vs. RONNIE RULLEPA y GUINTO, Accused-Appellant.

DECISION

CARPIO-MORALES, J.:

On complaint of Cyra May Francisco Buenafe, accused-appellant Ronnie Rullepa y Guinto was charged
with Rape before the Regional Trial Court (RTC) of Quezon City allegedly committed as follows:

That on or about the 17th day of November, 1995, in Quezon City, Philippines, the said accused, by
means of force and intimidation, to wit: by then and there willfully, unlawfully and feloniously removing
her panty, kissing her lips and vagina and thereafter rubbing his penis and inserting the same to the
inner portion of the vagina of the undersigned complainant, 3 years of age, a minor, against her will and
without her consent.1cräläwvirtualibräry

Arraigned on January 15, 1996, accused-appellant pleaded not guilty.2cräläwvirtualibräry

From the testimonies of its witnesses, namely Cyra May,3 her mother Gloria Francisco Buenafe, Dr.
Cristina V. Preyra, and SPO4 Catherine Borda, the prosecution established the following facts:

On November 20, 1995, as Gloria was about to set the table for dinner at her house in Quezon City, Cyra
May, then only three and a half years old, told her, Mama, si kuya Ronnie lagay niya titi niya at sinaksak
sa puwit at sa bibig ko.

267
Kuya Ronnie is accused-appellant Ronnie Rullepa, the Buenafes house boy, who was sometimes left with
Cyra May at home.

Gloria asked Cyra May how many times accused-appellant did those things to her, to which she
answered many times. Pursuing, Gloria asked Cyra May what else he did to her, and Cyra May indicated
the room where accused-appellant slept and pointed at his pillow.

As on the night of November 20, 1995 accused-appellant was out with Glorias husband Col.
Buenafe,4 she waited until their arrival at past 11:00 p.m. Gloria then sent accused-appellant out on an
errand and informed her husband about their daughters plaint. Buenafe thereupon talked to Cyra May
who repeated what she had earlier told her mother Gloria.

When accused-appellant returned, Buenafe and Gloria verified from him whether what Cyra May had
told them was true. Ronnie readily admitted doing those things but only once, at 4:00 p.m. of November
17, 1995 or three days earlier. Unable to contain her anger, Gloria slapped accused-appellant several
times.

Since it was already midnight, the spouses waited until the following morning to bring accused-appellant
to Camp Karingal where he admitted the imputations against him, on account of which he was detained.
Glorias sworn statement5 was then taken.6cräläwvirtualibräry

Recalling what accused-appellant did to her, Cyra May declared at the witness stand: Sinaksak nya ang
titi sa pepe ko, sa puwit ko, at sa bunganga, thus causing her pain and drawing her to cry. She added
that accused-appellant did these to her twice in his bedroom.

Dr. Ma. Cristina V. Preyra, the Medico-Legal Officer and Chief of the Biological Science Branch of the
Philippine National Police Crime Laboratory who examined Crya May, came up with her report dated
November 21, 1995,7 containing the following findings and conclusions:

FINDINGS:

GENERAL AND EXTRA GENITAL:

Fairly developed, fairly nourished and coherent female child subject. Breasts are undeveloped.
Abdomen is flat and soft.

GENITAL:

There is absence of pubic hair. Labia majora are full, convex and coaptated with congested and abraded
labia minora presenting in between. On separating the same is disclosed an abraded posterior
fourchette and an elastic, fleshy type intact hymen. External vaginal orifice does not admit the tip of the
examining index finger.

xxx

CONCLUSION:

Subject is in virgin state physically.

There are no external signs of recent application of any form of trauma at the time of examination.
(Emphasis supplied.)

By Dr. Preyras explanation, the abrasions on the labia minora could have been caused by friction with an
object, perhaps an erect penis. She doubted if riding on a bicycle had caused the
injuries.8cräläwvirtualibräry

The defenses sole witness was accused-appellant, who was 28 and single at the time he took the witness
stand on June 9, 1997. He denied having anything to do with the abrasions found in Cyra Mays genitalia,

268
and claimed that prior to the alleged incident, he used to be ordered to buy medicine for Cyra May who
had difficulty urinating. He further alleged that after he refused to answer Glorias queries if her husband
Buenafe, whom he usually accompanied whenever he went out of the house, was womanizing, Gloria
would always find fault in him. He suggested that Gloria was behind the filing of the complaint. Thus:

q- According to them you caused the abrasions found in her genital?

a- That is not true, sir.

q- If that is not true, what is the truth?

a- As I have mentioned earlier that before I started working with the family I was sent to Crame to buy
medicine for the daughter because she had difficulty in urinating.

q- Did you know why the child has difficulty in urinating?

a- No, I do not know, sir.

q- And how about the present complaint filed against you, the complaint filed by the mother of the
victim?

a- I did not do it, sir.

q- What is the truth, what can you say about this present complaint filed against you?

a- As I said Mrs. Buenafe got mad at me because after I explained to her that I was going with her
gusband (sic) to the children of the husband with a former marriage.9cräläwvirtualibräry

Finding for the prosecution, Branch 96 of the Quezon City RTC rendered judgment, the dispositive
portion of which reads:

WHEREFORE, judgment is hereby rendered finding accused RONNIE RULLEPA y GUINTO guilty beyond
reasonable doubt of rape, and he is accordingly sentenced to death.

The accused is ordered to pay CYRA MAE BUENAFE the amount of P40,000.00 as civil indemnity.

Costs to be paid by the accused.10 (Italics in the original.)

Hence, this automatic review, accused-appellant assigning the following errors to the trial court:

THE COURT A QUO ERRED IN CONSIDERING AS ADMISSIBLE IN EVIDENCE THE ACCUSED-APPELLANTS

ADMISSION.

II

THE COURT A QUO ERRED ON (sic) RULING THAT THE ACCUSED-APPELLANTS SILENCE DURING TRIAL
AMOUNTED TO AN IMPLIED ADMISSION OF GUILT.

III

THE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT FOR THE CRIME
CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

IV

269
THE COURT A QUO GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON THE
ACCUSED-APPELLANT.11 (Emphasis supplied.)

Accused-appellant assails the crediting by the trial court, as the following portion of its decision shows,
of his admission to Gloria of having sexually assaulted Cyra May:

In addition, the mother asserted that Rullepa had admitted Cyra Ma[y]s complaint during the
confrontation in the house. Indeed, according to the mother, the admission was even
expressly qualified by Rullepas insistence that he had committed the sexual assault only once, specifying
the time thereof as 4:00 pm of November 17, 1995. That qualification proved that the admission was
voluntary and true. An uncoerced and truthful admission like this should be absolutely admissible and
competent.

xxx

Remarkably, the admission was not denied by the accused during trial despite his freedom to deny it if
untrue. Hence, the admission became conclusive upon him.12 (Emphasis supplied.)

To accused-appellant, the statements attributed to him are inadmissible since they were made out of
fear, having been elicited only after Cyra Mays parents bullied and questioned him. He thus submits that
it was error for the trial court to take his failure to deny the statements during the trial as an admission
of guilt.

Accused-appellants submission does not persuade. The trial court considered his admission merely as
an additional ground to convince itself of his culpability. Even if such admission, as well as the
implication of his failure to deny the same, were disregarded, the evidence suffices to establish his guilt
beyond reasonable doubt.

The plain, matter-of-fact manner by which Cyra May described her abuse in the hands of
her Kuya Ronnie is an eloquent testament to the truth of her accusations. Thus she testified on direct
examination:

q- Do you recall if Ronnie Rullepa did anything to you?

a- Yes, sir.

q- What did he do to you?

a- Sinaksak nya ang titi sa pepe ko, sa puwit ko, at sa bunganga

q- How many times did he do that to you?

a- Twice, sir.

xxx

q- Do you remember when he did these things to you?

a- Opo.

q- When was that?

a- When my mother was asleep, he put he removed my panty and inserted his penis inside my vagina,
my anus and my mouth, sir.

xxx

q- After your Kuya Ronnie did those things to you what did you feel?

270
a- Sabi nya ganito (Witness putting her finger in her lips) Nasaktan po ako at umiyak po ako.

q- Did you cry because of hurt?

a- Yes.

q- What part of your body hurt?

a- Pepe ko po. When I went to the bathroom to urinate, I felt pain in my organ, sir.13cräläwvirtualibräry

Cyra May reiterated her testimony during cross-examination, providing more revolting details of her
ordeal:

q- So, you said that Kuya Ronnie did something to you what did he do to you on November 17, 1995?

a- Sinaksak nga yong titi nya. He inserted his penis to my organ and to my mouth, sir.

xxx

q- When you said that your kuya Ronnie inserted his penis into your organ, into your mouth, and into
your anus, would you describe what his penis?

a- It is a round object, sir.

C o u r t:

Is this titi of your kuya Ronnie a part of his body?

a- Opo.

q- Was that in the head of kuya Ronnie?

a- No, sir.

q- Which part of his body that titi located?

(Witness pointing to her groin area)

C o u r t:

Continue

xxx

q- Why were you in that room?

a- Gusto nya po matulog ako sa kuwarto niya.

q- When you were in that room, what did Kuya Ronnie do to you?

a- Hinubo po niya ang panty ko.

q- And after he remove your panty, what did Kuya Ronnie do, what did he do to you?

a- He inserted his penis to my organ, sir.

q- Why did kuya Ronnie, was kuya Ronnie already naked or he was already wearing any clothing?

271
a- Still had his clothing on, sir.

q- So, where did his penis, saan lumabas ang penis ni Kuya Ronnie?

a- Dito po, (Witness referring or pointing to her groin area)

xxx

q- So, thats the and at the time, you did not cry and you did not shout for help?

a- Sabi nya po, not to make any noise because my mother might be roused from sleep.

q- How long was kuya Ronnie did that to you?

a- Matagal po.

q- After kuya Ronnie scrub his penis to your vagina, what other things did he do?

a- After that he inserted his penis to my mouth, and to my anus, sir.

q- You did not complain and you did not shout?

a- I cried, sir.14cräläwvirtualibräry

Accused-appellant draws attention to the statement of Cyra May that he was not in the house on
November 17 (1995), as reflected in the following transcript of her testimony:

q- Is it not a fact that you said a while ago that when your father leaves the house, he [was] usually
accompanied by your kuya Ronnie?

a- Opo.

q- Why is it that Kuya Ronnie was in the house when you father left the house at that time, on
November 17?

a- He was with Kuya Ronnie, sir.

q- So, it is not correct that kuya Ronnie did something to you because your kuya Ronnie [was] always
with your Papa?

a- Yes, sir.15cräläwvirtualibräry

The above-quoted testimony of Cyra May does not indicate the time when her father Col. Buenafe left
their house on November 17, 1995 with accused-appellant and, thus, does not preclude accused-
appellants commission of rape on the same date. In any event, a young child is vulnerable to suggestion,
hence, her affirmative response to the defense counsels above-quoted leading questions.

As for the variance in the claim regarding when Gloria was informed of the rape, Gloria having testified
that she learned of it on November 20, 199516 while Cyra May said that immediately after the incident,
she awakened her mother who was in the adjacent room and reported it:17 This is a minor matter that
does not detract from Cyra Mays categorical, material testimony that accused-appellant inserted his
penis into her vagina.

Accused-appellant goes on to contend that Cyra May was coached, citing the following portion of her
testimony:

q- Yong sinabi mong sinira nya ang buhay mo, where did you get that phrase?

272
a- It was the word of my Mama, sir.18cräläwvirtualibräry

On the contrary, the foregoing testimony indicates that Cyra May was really narrating the truth, that of
hearing her mother utter sinira niya ang buhay mo.

Accused-appellants suggestion that Cyra May merely imagined the things of which he is accused,
perhaps getting the idea from television programs, is preposterous. It is true that the ordinary child is a
great weaver of romances, and her imagination may induce (her) to relate something she has heard or
read in a story as personal experience.19 But Cyra Mays account is hardly the stuff of romance or fairy
tales. Neither is it normal TV fare, if at all.

This Court cannot believe that a victim of Cyra Mays age could concoct a tale of defloration, allow the
examination of her private parts, and undergo the expense, trouble, inconvenience, not to mention the
trauma of public trial.20cräläwvirtualibräry

Besides, her testimony is corroborated by the findings of Dr. Preyra that there were abrasions in
her labia minora, which she opined, could have been caused by friction with an erect penis.

This Court thus accords great weight to the following assessment of the trial court regarding the
competency and credibility of Cyra May as a witness:

Her very tender age notwithstanding, Cyra Ma(y) nonetheless appeared to possess the necessary
intelligence and perceptiveness sufficient to invest her with the competence to testify about her
experience. She might have been an impressionable child as all others of her age are but her narration
of Kuya Ronnies placing his titi in her pepe was certainly one which could not be considered as a
common childs tale. Her responses during the examination of counsel and of the Court established her
consciousness of the distinction between good and bad, which rendered inconceivable for her to
describe a bad act of the accused unless it really happened to her. Needless to state, she described the
act of the accused as bad. Her demeanor as a witness manifested during trial by her unhesitant,
spontaneous, and plain responses to questions further enhanced her claim to credit and
trustworthiness.21 (Italics in the original.)

In a futile attempt at exculpation, accused-appellant claims that even before the alleged incident Cyra
May was already suffering from pain in urinating. He surmises that she could have scratched herself
which caused the abrasions. Dr. Preyra, however, was quick to rule out this possibility. She stated
categorically that that part of the female organ is very sensitive and rubbing or scratching it is
painful.22 The abrasions could not, therefore, have been self-inflicted.

That the Medical-Legal Officer found no external signs of recent application of any form of trauma at the
time of the examination does not preclude accused-appellants conviction since the infliction of force is
immaterial in statutory rape.23cräläwvirtualibräry

More. That Cyra May suffered pain in her vagina but not in her anus despite her testimony that accused-
appellant inserted his penis in both orifices does not diminish her credibility. It is possible that accused-
appellants penis failed to penetrate her anus as deeply as it did her vagina, the former being more
resistant to extreme forces than the latter.

Accused-appellants imputation of ill motive on the part of Gloria is puerile. No mother in her right mind
would subject her child to the humiliation, disgrace and trauma attendant to a prosecution for rape if
she were not motivated solely by the desire to incarcerate the person responsible for the childs
defilement.24 Courts are seldom, if at all, convinced that a mother would stoop so low as to subject her
daughter to physical hardship and shame concomitant to a rape prosecution just to assuage her own
hurt feelings.25cräläwvirtualibräry

Alternatively, accused-appellant prays that he be held liable for acts of lasciviousness instead of rape,
apparently on the basis of the following testimony of Cyra May, quoted verbatim, that he merely
scrubbed his penis against her vagina:

273
q- Is it not a fact that kuya Ronnie just made some scrubbed his penis into your vagina?

a- Yes, sir.

q- And when he did not actually penetrated your vagina?

a- Yes, sir.26cräläwvirtualibräry

Dr. Preya, however, found abrasions in the labia minora, which is directly beneath the labia
majora,27 proving that there was indeed penetration of the vagina, not just a mere rubbing or scrubbing
of the penis against its surface.

In fine, the crime committed by accused-appellant is not merely acts of lasciviousness but statutory rape.

The two elements of statutory rape are (1) that the accused had carnal knowledge of a woman, and (2)
that the woman is below twelve years of age.28 As shown in the previous discussion, the first element,
carnal knowledge, had been established beyond reasonable doubt. The same is true with respect to the
second element.

The victims age is relevant in rape cases since it may constitute an element of the offense. Article 335 of
the Revised Penal Code, as amended by Republic Act No. 7659,29 provides:

Art. 335. When and how rape is committed. Rape is committed by having carnal knowledge of a woman
under any of the following circumstances:

x x x.

3. When the woman is under twelve years of age x x x.

x x x.

The crime of rape shall be punished by reclusion perpetua.

x x x.

Furthermore, the victims age may constitute a qualifying circumstance, warranting the imposition of
the death sentence. The same Article states:

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity with the third civil degree, or the common-law
spouse of the parent of the victim.

x x x.

4. when the victim is x x x a child below seven (7) years old.

x x x.

Because of the seemingly conflicting decisions regarding the sufficiency of evidence of the victims age in
rape cases, this Court, in the recently decided case of People v. Pruna,30 established a set of guidelines in
appreciating age as an element of the crime or as a qualifying circumstance, to wit:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

274
2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate
and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such
as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less
than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less
than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims
mother or relatives concerning the victims age, the complainants testimony will suffice provided that it
is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

Applying the foregoing guidelines, this Court in the Pruna case held that the therein accused-appellant
could only be sentenced to suffer the penalty of reclusion perpetua since:

x x x no birth certificate or any similar authentic document, such as a baptismal certificate of LIZETTE,
was presented to prove her age. x x x.

x x x.

However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of
LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was
presented to establish LIZETTEs age. Her mother, Jacqueline, testified (that the victim was three years
old at the time of the commission of the crime).

xxx

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5
years old. However, when the defense counsel asked her how old she was on 3 January 1995, or at the
time of the rape, she replied that she was 5 years old. Upon further question as to the date she was
born, she could not answer.

For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must
be established with certainty that LIZETTE was below 7 years old at the time of the commission of the
crime. It must be stressed that the severity of the death penalty, especially its irreversible and final
nature once carried out, makes the decision-making process in capital offenses aptly subject to the most
exacting rules of procedure and evidence.

In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document should be introduced in evidence in order that
the qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of
objection on the part of the defense as to her age did not excuse the prosecution from discharging its
burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to

275
testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3
January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death
penalty cannot be imposed on him.

However, conformably with no. 3 (b) of the foregoing guidelines, the testimony of LIZETTEs mother that
she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding
PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of
Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having
carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the
penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty. (Italics in the
original.)

Several cases31 suggest that courts may take judicial notice of the appearance of the victim in
determining her age. For example, the Court, in People v. Tipay,32 qualified the ruling in People v.
Javier,33 which required the presentation of the birth certificate to prove the rape victims age, with the
following pronouncement:

This does not mean, however, that the presentation of the certificate of birth is at all times necessary to
prove minority. The minority of a victim of tender age who may be below the age of ten is quite
manifest and the court can take judicial notice thereof. The crucial years pertain to the ages of fifteen to
seventeen where minority may seem to be dubitable due to ones physical appearance. In this situation,
the prosecution has the burden of proving with certainty the fact that the victim was under 18 years of
age when the rape was committed in order to justify the imposition of the death penalty under the
above-cited provision. (Emphasis supplied.)

On the other hand, a handful of cases34 holds that courts, without the requisite hearing prescribed by
Section 3, Rule 129 of the Rules of Court,35 cannot take judicial notice of the victims age.

Judicial notice signifies that there are certain facta probanda, or propositions in a partys case, as to
which he will not be required to offer evidence; these will be taken for true by the tribunal without the
need of evidence.36 Judicial notice, however, is a phrase sometimes used in a loose way to cover some
other judicial action. Certain rules of Evidence, usually known under other names, are frequently
referred to in terms of judicial notice.37chanroblesvirtuallawlibrary

The process by which the trier of facts judges a persons age from his or her appearance cannot be
categorized as judicial notice. Judicial notice is based upon convenience and expediency for it would
certainly be superfluous, inconvenient, and expensive both to parties and the court to require proof, in
the ordinary way, of facts which are already known to courts.38 As Tundag puts it, it is the cognizance of
certain facts which judges may properly take and act on without proof because they already know them.
Rule 129 of the Rules of Court, where the provisions governing judicial notice are found, is entitled What
Need Not Be Proved. When the trier of facts observes the appearance of a person to ascertain his or her
age, he is not taking judicial notice of such fact; rather, he is conducting an examination of the evidence,
the evidence being the appearance of the person. Such a process militates against the very concept of
judicial notice, the object of which is to do away with the presentation of evidence.

This is not to say that the process is not sanctioned by the Rules of Court; on the contrary, it does. A
persons appearance, where relevant, is admissible as object evidence, the same being addressed to the
senses of the court. Section 1, Rule 130 provides:

SECTION 1. Object as evidence. Objects as evidence are those addressed to the senses of the court.
When an object is relevant to the fact in issue, it may be exhibited to, examined or viewed by the court.

To be sure, one author writes, this practice of inspection by the court of objects, things
or persons relevant to the fact in dispute, has its roots in ancient judicial procedure.39 The author
proceeds to quote from another authority:

Nothing is older or commoner in the administration of law in all countries than the submission to the
senses of the tribunal itself, whether judge or jury, of objects which furnish evidence. The view of the

276
land by the jury, in real actions, of a wound by the judge where mayhem was alleged, and of the person
of one alleged to be an infant, in order to fix his age, the inspection and comparison of seals, the
examination of writings, to determine whether they are ()blemished,() the implements with which a
crime was committed or of a person alleged, in a bastardy proceeding, to be the child of another, are
few illustrations of what may be found abundantly in our own legal records and textbooks for seven
centuries past.40 (Emphasis supplied.)

A persons appearance, as evidence of age (for example, of infancy, or of being under the age of consent
to intercourse), is usually regarded as relevant; and, if so, the tribunal may properly observe the person
brought before it.41 Experience teaches that corporal appearances are approximately an index of
the age of their bearer, particularly for the marked extremes of old age and youth. In every case such
evidence should be accepted and weighed for what it may be in each case worth. In particular,
the outward physical appearance of an alleged minor may be considered in judging his age; a contrary
rule would for such an inference be pedantically over-cautious.42 Consequently, the jury or the court
trying an issue of fact may be allowed to judge the age of persons in court by observation of such
persons.43 The formal offer of the person as evidence is not necessary. The examination and cross-
examination of a party before the jury are equivalent to exhibiting him before the jury and an offer of
such person as an exhibit is properly refused. 44cräläwvirtualibräry

This Court itself has sanctioned the determination of an aliens age from his appearance. In Braca v.
Collector of Customs,45 this Court ruled that:

The customs authorities may also determine from the personal appearance of the immigrant what his
age is. The person of a Chinese alien seeking admission into the Philippine Islands is evidence in an
investigation by the board of special inquiry to determine his right to enter; and such body may take into
consideration his appearance to determine or assist in determining his age and a finding that the
applicant is not a minor based upon such appearance is not without evidence to support it.

This Court has also implicitly recognized the same process in a criminal case. Thus, in United States v.
Agadas,46 this Court held:

Rosario Sabacahan testified that he was 17 years of age; that he had never purchased a cedula; and that
he was going to purchase a cedula the following january. Thereupon the court asked this defendant
these questions: You are a pretty big boy for seventeen. Answer: I cannot tell exactly because I do not
remember when I was born, but 17 years is my guess. Court: If you are going to take advantage of that
excuse, you had better get some positive evidence to that effect. Answer: I do not remember, as I
already stated on what date and in what year I was born. The court, in determining the question of the
age of the defendant, Rosario Sabacahan, said:

The defendant, Rosario Sabacahan, testified that he thought that he was about 17 years of age,
but judging by his appearance he is a youth 18 or 19 years old. He has shown that he has no positive
information on the subject and no effort was made by the defense to prove the fact that he is entitled to
the mitigating circumstance of article 9, paragraph 2, of the Penal code, which fact it is held to be
incumbent upon the defense to establish by satisfactory evidence in order to enable the court to give an
accused person the benefit of the mitigating circumstance.

In United States vs. Estavillo and Perez (10 Off. Gaz., 1984) Estavillo testified, when the case was tried in
the court below, that he then was only 16 years of age. There was no other testimony in the record with
reference to his age. But the trial judge said: The accused Estavillo, notwithstanding his testimony giving
his age as 16 years, is, as a matter of fact, not less than 20. This court, in passing upon the age of
Estavillo, held:

We presume that the trial court reached this conclusion with reference to the age of Estavillo from the
latters personal appearance. There is no proof in the record, as we have said, which even tends to
establish the assertion that this appellant understated his age. * * * It is true that the trial court had an
opportunity to note the personal appearance of Estavillo for the purpose of determining his age, and by
so doing reached the conclusion that he was at least 20, just two years over 18. This appellant testified
that he was only 16, and this testimony stands uncontradicted. Taking into consideration the marked

277
difference in the penalties to be imposed upon that age, we must, therefore, conclude (resolving all
doubts in favor of the appellants) that the appellants ages were 16 and 14 respectively.

While it is true that in the instant case Rosario testified that he was 17 years of age, yet the trial court
reached the conclusion, judging from the personal appearance of Rosario, that he is a youth 18 or 19
years old. Applying the rule enunciated in the case just cited, we must conclude that there exists a
reasonable doubt, at least, with reference to the question whether Rosario was, in fact 18 years of age
at the time the robbery was committed. This doubt must be resolved in favor of the defendant, and he is,
therefore, sentenced to six months of arresto mayor in lieu of six years ten months and one day
of presidio mayor. x x x.

There can be no question, therefore, as to the admissibility of a persons appearance in determining his
or her age. As to the weight to accord such appearance, especially in rape cases, Pruna laid down
guideline no. 3, which is again reproduced hereunder:

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such
as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less
than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less
than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

Under the above guideline, the testimony of a relative with respect to the age of the victim is sufficient
to constitute proof beyond reasonable doubt in cases (a), (b) and (c) above. In such cases, the disparity
between the allegation and the proof of age is so great that the court can easily determine from the
appearance of the victim the veracity of the testimony. The appearance corroborates the relatives
testimony.

As the alleged age approaches the age sought to be proved, the persons appearance, as object evidence
of her age, loses probative value. Doubt as to her true age becomes greater and,
following Agadas, supra, such doubt must be resolved in favor of the accused.

This is because in the era of modernism and rapid growth, the victims mere physical appearance is not
enough to gauge her exact age. For the extreme penalty of death to be upheld, nothing but proof
beyond reasonable doubt of every fact necessary to constitute the crime must be substantiated. Verily,
the minority of the victim should be not only alleged but likewise proved with equal certainty and
clearness as the crime itself. Be it remembered that the proof of the victims age in the present case
spells the difference between life and death.47cräläwvirtualibräry

In the present case, the prosecution did not offer the victims certificate of live birth or similar authentic
documents in evidence. The victim and her mother, however, testified that she was only three years old
at the time of the rape. Cyra Mays testimony goes:

q- Your name is Cyra Mae is that correct?

a- Yes, sir.

q- And you are 3 years old?

a- Yes, sir.48cräläwvirtualibräry

278
That of her mother goes:

Q How old was your daughter when there things happened?

A 3 and years old.

Q When was she born?

A In Manila, May 10, 1992.49cräläwvirtualibräry

Because of the vast disparity between the alleged age (three years old) and the age sought to be proved
(below twelve years), the trial court would have had no difficulty ascertaining the victims age from her
appearance. No reasonable doubt, therefore, exists that the second element of statutory rape, i.e., that
the victim was below twelve years of age at the time of the commission of the offense, is present.

Whether the victim was below seven years old, however, is another matter. Here, reasonable doubt
exists. A mature three and a half-year old can easily be mistaken for an underdeveloped seven-year old.
The appearance of the victim, as object evidence, cannot be accorded much weight and, following Pruna,
the testimony of the mother is, by itself, insufficient.

As it has not been established with moral certainty that Cyra May was below seven years old at the time
of the commission of the offense, accused-appellant cannot be sentenced to suffer the death penalty.
Only the penalty of reclusion perpetua can be imposed upon him.

In line with settled jurisprudence, the civil indemnity awarded by the trial court is increased
to P50,000.00. In addition, Cyra May is entitled to an award of moral damages in the amount
of P50,000.00.50cräläwvirtualibräry

WHEREFORE, the Decision of the Regional Trial Court of Quezon City, Branch 96,
is AFFIRMED with MODIFICATION. Accused-appellant Ronnie Rullepa y Guinto is found GUILTY of
Statutory Rape, defined and punished by Article 335 (3) of the Revised Penal Code, as amended, and is
sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay private complainant, Cyra
May Buenafe y Francisco, the amount of P50,000.00 as civil indemnity and P50,000.00 as moral
damages.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez,
Carpio, Austria-Martinez, Callejo, Sr., and Azcuna, JJ., concur.

Ynares-Santiago, and Corona, JJ., on leave.

G.R. No. 121979 March 2, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. SAMUEL ULZORON, Accused-Appellant.

BELLOSILLO, J.:

SAMUEL ULZORON was charged with rape with the use of a deadly weapon. Complaining witness was
Emily Gabo. On 8 March 1995 the trial court adjudged him guilty as charged and sentenced him
to reclusion perpetua. 1 No indemnity was awarded to Emily for the sexual assault.

On 31 March 1987, at around 10:00 o'clock in the morning, Emily was watering her plants near a well in
Brgy. Tumarbong, Roxas, Palawan, when Samuel suddenly appeared. He was armed with a 2-foot long
bolo hanging in its scabbard around his waist with a long-sleeved work shirt slung over his shoulder. He
asked Emily where her husband was. She replied that Roberto was already in the kaingin so she advised

279
him to follow her husband there. But Samuel opted to remain and rest on an anthill some two and a half
(2-1/2) meters from the well. 2

After Emily finished watering her plants and before she could start washing clothes, Samuel grabbed her
wrists and locked them with one hand behind her back with the other hand drawing his bolo and
pointing it at her neck. She struggled to free herself from his hold but was so intimidated with the bolo
that she could not shout for help; she lost her strength eventually. After she weakened, he dragged her
some forty (40) meters away to the bushes and tall grasses. He forced her to lie down; then he mounted
her. He laid his bolo beside him, pinned her arms with one hand, and with the other, loosened the
buttons of her dress. Emily could only struggle in vain until he ripped off her dress and panties. He
opened the zipper of his pants and then inserted his penis to her vagina. He copulated with her for
about fifteen (15) minutes. She did everything to disengage herself from the sexual imbroglio but her
efforts proved no match to his strength. 3

At this moment, Emily heard her husband's voice calling for her. Roberto was now somewhere within
the vicino. He saw Emily's slippers near the well so he franctically hollered, "Baby!" She answered back.
When Roberto's voice was heard by Samuel, he dashed off and fled to the thickets. 4

Roberto followed the direction of Emily's voice until he saw her emerge from the thick hushes. She was
in a state of shock. He asked her what happened and she told him that she was sexually abused by
Samuel Ulzoron. Emily pointed Roberto to the place where she was dragged and raped. Together they
went there and found Ulzoron's bolo and work shirt and took them home. 5

The following afternoon, Emily went to Dr. Feliciano M. Velasco Jr. for physical examination. The doctor
noted the discharge mixed with semen in her private part. He opined that it could have been caused by
sexual intercourse within twenty-four (24) hours prior to his examination. He found her cervix to be
parous with superficial erosions. Her hymen was obliterated with caruncles. 6 The next day Emily lodged
a complaint for rape against Samuel Ulzoron as she turned over his belongings to the police authorities
as her evidence in support thereof. 7

Ulzoron had his own story to tell. He said that on the day of the incident he saw Emily at the well. She
told him that work in the kaingin would be in the afternoon yet so she advised him to come back. Since
he was returning in the afternoon, he decided to leave his bolo and work shirt near the well. However,
at around 10:00 o'clock that morning, as he was about to retrieve his bolo and shirt, he saw the Gabo
spouses having sexual intercourse in a hut with a wall only on one side. As he was ashamed to be seen
by them he proceeded instead to the house of a relative. 8

On the strength of the testimony of Emily Gabo, the trial court convicted the accused. It found her
testimony straightforward and credible. It rationalized that she would not have filed her complaint for
rape if her accusations were not true, for to do so would only expose herself to public shame or ridicule.
No improper motive on her part to file the case had been shown. The findings of the examining
physician also lent credence to her claim. On the other hand, the trial court found the defense of the
accused too weak, anemic, for if Ulzoron really felt embarrassed to be seen by the Gabo spouses, he
could have taken a detour or passed another way to get back his bolo and work shirt. Besides, it was
never established that the Gabos had so much yearning for each other that they had to indulge in sexual
congress in a hut that was open to public view and at such an unlikely hour. 9

Appellant concedes, even as he assails his conviction, that his defense is inherently weak. Nevertheless,
he faults the trial court for convicting him on the basis of his defense. He argues that the undisputed
facts and circumstances made it more likely that Emily was involved in an adulterous relationship with
him. 10 He claims, for instance, that there was absolutely nothing to support the victim's claim of struggle,
and that while he allegedly dragged her forty (40) meters away before assaulting her sexually, the
examining physician could not conclude that physical force was actually inflicted since she did not
sustain any physical injuries. 11 Another point raised by the defense is her testimony that while he was
on top of her his bolo was beside him. The plain import of such testimony, according to the accused, is
that the bolo was not a necessary instrument in the commission of the crime. 12 He also invites attention
to the circumstance that the judge who wrote the decision did not personally try the case and therefore
lacked the opportunity to observe the demeanor of the parties and their witnesses. 13

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The arguments of appellant are unpersuasive; they fail to convince us. Contrary to his claim that he was
convicted because of his weak defense, his conviction was actually founded on the overwhelming
evidence of the prosecution. With regard to his claim that he had an adulterous relationship with the
victim, the Office of the Solicitor General observed that such claim was a radical departure from the
defense of denial he raised at the trial. The OSG observed further that the "sweetheart defense" was
being raised for the first time in this appeal hence should be disallowed conformably with established
jurisprudence. 14 Here, the Court does not necessarily agree. Appellant could only be emphasizing the
point that the facts and circumstances established could lead to a conclusion of the existence of
adulterous relationship between him and Emily and not of rape. In other words, appellant could be
utilizing the "sweetheart theory" not necessarily as a defense but as a focal point in disputing the
appreciation by the trial court of the evidence for the prosecution. Thus, this course taken by the
defense may not be totally disregarded.

The term "dragged" should not indeed be taken in the meaning understood by appellant as "dragged
along on the ground." When asked on cross-examination by the defense counsel to "describe how she
and appellant traveled at (sic) forty (40) meters distance," 15 she said, "He was holding my hands and at
the same time he is (sic) pushing me forward." 16 This testimony adequately explains the absence of
injuries in her body. At any rate, it is not necessary for the commission of rape that there be marks of
physical violence on the victim's body. 17 While Emily repeatedly mentioned her struggles to be released
from his grasp, such efforts need not always result in physical injuries. 18 Besides, they did not refer to
the circumstances when she was being dragged by the accused, but to the circumstances when he
initially grabbed her hands, 19 when he was on top of her, 20 when he was undressing her, 21 and when
she was exerting efforts to disengage herself from the sexual anchorage. 22

Intimidation may be of the moral kind, e.g., the fear caused by threatening a woman with a
knife. 23 There was sufficient intimidation when appellant pointed his 2-foot long bolo at Emily's neck
while they were near the well until they reached the spot where she was finally abused. This
intimidation continued even after he positioned himself on top of her and placed the bolo beside him
since he was at liberty to point it anew at her neck or any part of her body. Anyway, the significant
consideration is that, as aforementioned, the intimidation was continuous as to sufficiently engender
fear in her mind. 24

The circumstance that the judge who wrote the decision had not heard the testimonies of the
prosecution witnesses does not taint or disturb his decision. After all, he had the records of the case
before him including the transcript of stenographic notes. The validity of a decision is not necessarily
impaired by the fact that its writer only took over from a colleague who had earlier presided at the trial
unless there is a clear showing of grave abuse of discretion in the appreciation of the facts, 25 and none
exists in the present case. The records amply support the factual findings of the trial court and its
assessment of the credibility of the witnesses.

The circumstances of force and intimidation attending the instant case were manifested clearly not only
in the victim's testimony but also in the physical evidence presented during the trial consisting of her
torn dress and underwear as well as the medico-legal report. Such pieces of evidence indeed are more
eloquent than a hundred witnesses. 26 The fact of carnal knowledge is not disputed. It was positively
established through the offended party's own testimony and corroborated by that of her examining
physician.

Moreover, the conduct of the complaining witness immediately following the assault clearly established
the truth of her charge that she was raped by accused-appellant. 27 Consequently, we agree with the
observation of the OSG that Emily's actuations following her misfortune, namely, her revelation to her
husband of her violation by the accused and subjecting her private parts immediately to medical
examination, as well as the filing of her complaint for rape immediately thereafter are consistent with
her straightforward, logical, truthful and credible testimony thus rebutting any insinuation of
voluntariness on her part to the sexual confrontation; rather, they only display a moral certainty of his
culpability for the crime charged.

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WHEREFORE, the decision appealed from finding accused-appellant SAMUEL ULZORON guilty of rape
and sentencing him to reclusion perpetua is AFFIRMED. In addition, he is ordered to indemnify his victim
Emily Gabo the amount of P50,000.00, and to pay the costs.

SO ORDERED.

Davide, Jr., Vitug, Panganiban and Quisumbing, JJ., concur.

G.R. No. 118816 July 10, 1998

SANTIAGO ARGONCILLO, RICHARDO BALBONA and POLICARPIO UMITEN, petitioners,

vs.

COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

KAPUNAN, J.:

This is a petition to review the decision 1 of the Court of Appeals which affirmed in toto the decision of
the Regional Trial Court of Roxas City, Branch 15, 2 finding petitioners herein guilty of "illegal fishing
with the use of an explosive," the dispositive portion of which reads:

WHEREFORE, the Court finds the accused, Policarpio Umiten, Santiago Argoncillo and
Richard Balbona, guilty beyond reasonable doubt for the crime of illegal fishing with
the use of an explosive punishable under Section 33 in relation to Section 38 of
Presidential Decree No. 704 dated May 16, 1975 as amended by Presidential Decree
No. 1058 dated December 1, 1976 and each shall suffer a straight penalty of twenty
(20) years imprisonment.

However, accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are acquitted for
failure of the prosecution to prove their guilt beyond reasonable doubt.

The fish sample is forfeited in favor of the government.

Considering the penalty imposed upon the accused, Policarpio Umiten, Santiago
Argoncillo and Richard Balbona, the bail bond for their provisional liberty is increased
to Twenty Thousand (P20,000.00) Pesos each effective immediately upon
promulgation. They shall not be released from detention until they put up an
appropriate bail bond for their provisional liberty.

The property bond of accused, Johnson Sucgang, Elvis Villar and Efren Alvaro, are
deemed cancelled.

Costs against the convicted accused.

SO ORDERED. 3

On August 1, 1990, an Information was filed by the Provincial Fiscal of Capiz charging Johnson Sucgang,
Policarpio Umiten, Elvis Villar, Santiago Argoncillo, Richardo Balbona and Efren Alvaro with illegal
fishing (with the use of dynamite), as follows:

That at or about 6:30 o'clock [sic] in the evening of May 7, 1990, in the sea water of
Barangay Basiao, Ivisan, Capiz, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating and helping
one another, wilfully, unlawfully and feloniously catch, take, gather and have in their
possession and control different species of fish with the use of explosives. 4

282
Upon arraignment on September 11, 1990, the accused, with the assistance of counsel, pleaded "not
guilty" to the offense charged. Trial ensued thereafter.

The lower court synthesized the evidence presented by the prosecution as follows: 5

Due to reports of rampant illegal fishing at Barangay Basiao, Ivisan, Capiz, personnel from the
Department of Agriculture and Natural Resources specifically from the Bureau of Fisheries as well as
the Barangay Captain of said place assisted by the local policemen created a team to conduct
surveillance within the Ivisan Bay. Thus, around 5:30 in the afternoon of May 7, 1990, a team riding in
two (2) pumpboats from the Barangay Basiao wharf proceeded along the waters of Ivisan Bay. Riding
in one pumpboat were Persinefles U. Oabe, the Barangay Captain of said place; Rolando Amoroso, an
employee of the Bureau of Fisheries; Pat. Rafael Tupaz, a member of the local Integrated National
Police and Remegio Unasin, a barangay councilman who acted as the pilot. In the other pumpboat
were Joey de la Cruz, a co-employee of Rolando Amoroso; Pat. Reggie Uadan and Enido Baldesimo.
Now and then, the team had to stop and listen for possible occurrences of illegal fishing within their
vicinity. Around 6:30 of the same evening while standing by with their engines off, in a place facing
Barangay Culasi, they heard an explosion. Sensing it was caused by dynamite, they proceeded to the
area around five hundred meters (500 m.) away from them.

After ten minutes of navigation, the team arrived at the scene in question which was near an islet.
They surrounded the area. At a distance of around ten meters, Joey de la Cruz, an employee of the
Bureau of Fisheries and Aquatic Resources, saw three persons diving into the water. Thereafter, they
would surface and throw their catch of fish to the unmotorized banca around four meters long nearby.
In the seashore of said islet, around three to four meters away from these three persons floating in
the water, were three other persons standing in the rocky portions around three meters apart. These
six persons tried to escape but Rolando Amoroso, the co-employee of Joey de la Cruz, advised them
not to do so and introduced themselves as law enforcers. The team found out that the fishes they
caught were deep sea fish of four kinds locally known as "vulgan," "bulawis," "pacol," and "bag-
angan." Joey de la Cruz gathered seven fish samples from their banca while Rolando Amoroso went
down from the pumpboat and proceeded to the islet. However, upon inspection, he failed to find any
explosive (dynamite) either on the seashore or on the banca. No paraphernalia used in dynamite
fishing were found. Both Joey de la Cruz and Rolando Amoroso recognized the six persons as the
herein accused by their faces.

Persinefles U. Oabe, barangay captain of Barangay Basiao, who was with the team riding in a
pumpboat with Rolando Amoroso identified the three persons retrieving fish from the water as
Policarpio Umiten, Santiago Argoncillo and Richard Balbona while the other three persons standing on
the rocky portions of the islet as Johnson Sucgang, Elvis Umiten and Efren Alvaro.

The team apprehended the six accused and brought them to the fish cage of the barangay captain
located within the same barangay. While on their way, Joey de la Cruz externally examined the fish
samples.

Upon their arrival at the fish cage, another external examination was conducted by Joey de la Cruz
and Rolando Amoroso. In both external examinations, the two found out that the fishes were caught
with the use of explosives because blood was oozing from their operculums and their eyes were
protruding.

An on-the-spot investigation was conducted but the accused denied any culpability. They were then
released on the strength of their promise to report to the local police the following day.

The fish samples were then placed in a plastic bag filled with ice at the house of Barangay Captain
Persinefles U. Oabe that evening. In the morning, Joey de la Cruz and Rolando Amoroso brought the
fish samples to their office in Roxas City where they conducted an internal examination. The
examination revealed that the fish samples were caught with the use of explosives because their air
bladders were raptured and deeply stained with blood; the vertebral columns were broken but with
bloodstains; their ribs were broken; and there were blood clots in their abdomens. Joey de la Cruz and

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Rolando Amoroso rendered a written report of their internal examination to the Provincial
Agricultural Officer.

The testimonies of Joey de la Cruz, Rolando Amoroso, and Persinefles U. Oabe above were
corroborated by Pat. Rafael Tupaz, one of the police escorts of the team.

Sgt. Sergio Ordales, a member of the local police of the municipality of Ivisan testified that while on
duty in the morning of May 8, 1990, herein six accused arrived at their station. He asked why they
were there and they answered that they were told to report to the police station. He learned from
them that they were arrested for illegal fishing with the use of explosives.

On the other hand, the lower court portrayed the evidence presented by the version of the defense,
thus:

All the accused denied the imputation of the prosecution.

Policarpio Umiten, Santiago Argoncillo, Richard O. Balbona were uniform in alleging that around 4:00
in the afternoon of May 7, 1990, they dropped a fishnet about two hundred (200) "armslength" and
one (1) meter in width at the scene where they were apprehended. This method they locally call
"patuloy" requires that the fishnet be retrieved every hour to collect its catch. The trio went back to
the place near the islet in question around 6:30 in the evening for the purpose of collecting their catch
from the fishnet. They had not been able to collect all their catch from the net when the team of law
enforcers, prosecution witnesses herein, arrived. They were asked whether they heard an explosion.
After they denied having heard any, Barangay Captain Persinefles U. Oabe, told the accused to go with
them. The team got seven pieces of fish samples. The accused left around one and one-half kilos of
fish they had gathered at the time the team of law enforcers arrived. They were then brought to the
fish cage owned by Persinefles U. Oabe at Barangay Basiao.

Above three accused would like the Court to believe that the seven pieces of fish samples taken by
the team of fishing law enforcers were the catch of their fishnet they locally called "patuloy."

On the other hand, Elvis Villar testified that he and Efren Alvaro were together in going to the islet in
question, riding in an unmotorized banca to gather shells locally called "suso" and "butlogan" for
viand. Both started gathering shells under the stones in the islet around 5:30 in the afternoon. While
they were preparing to go home at around 6:30 in the evening, the team of law enforcers riding in
motorized pumpboats arrived. The barangay captain and the personnel from the Bureau of Fisheries
and Aquatic Resources asked them whether they heard an explosion. After they denied having heard
any, they were told by the barangay captain to board their pumpboats. They obliged, leaving the
shells they had gathered. They were then brought to the fish cage of the barangay captain.

Although accused Johnson Sucgang admitted his presence in the islet in question, he offered a
different explanation. He testified that he went to said place to look for "pulutan" requested by his
customer, Wilfredo Arcangeles. Being an operator and manager of Virgen Beach Resort located at
Sitio Manangkalan, he obliged. Thus, between 5:00 to 5:30 in the afternoon of May 7, 1990, he left his
resort riding in a banca. He paddled his way towards the islet where he saw two persons at the bank
while the other three were on the water. He went ashore. Later, the barangay captain and his
companions riding in two pumpboats arrived. Like his co-accused, he was asked if he heard an
explosion. After he denied hearing any, the barangay captain told him to go with them. They were all
brought to the fish cage of the barangay captain for questioning.

Wilfredo Arcangeles corroborated the claim of Johnson Sucgang. He confirmed that he requested the
latter to look for "pulutan" since he had visitors from Bacolod City prompting Johnson Sucgang to look
for some. He saw the accused leave in a banca and affirmed that he had no dynamite with him. 6

On September 30, 1991, the trial court rendered its decision which, as stated at the beginning, was
affirmed by the Court of Appeals.

Hence, this petition.

284
Petitioners point out that the fact that neither explosives nor related paraphernalia were found in
their possession is an indication of their innocence.

We do not agree. First, it is quite probable that petitioners dumped these materials into the sea while
the raiding party was approaching. Moreover, Section 33, Presidential Decree No. 704, as amended by
Presidential Decree No. 1058, provides:

Sec. 33. Illegal fishing; . . . — It shall be unlawful for any person to catch, take or
gather, or cause to be caught, taken or gathered fish or fishery/aquatic products in
Philippine waters with the use of explosives, obnoxious or poisonous substance, or by
the use of electricity as defined in paragraphs (l), 7 (m) 8 and (d), 9 respectively, of Sec.
3 hereof . . .

xxx xxx xxx

The discovery of dynamite, other explosives and chemical compounds containing

combustible elements, or obnoxious or poisonous substance, or equipment or device
for electric fishing in any fishing boat or in the possession of a fisherman shall
constitute a presumption that the same were used for fishing in violation of this
Decree, the discovery in any fishing boat of fish caught or killed by the use of
explosives, obnoxious or poisonous substance or by electricity shall constitute a
presumption that the owner, operator or fisherman were fishing with the use of
explosives, obnoxious or poisonous substance or electricity.

In Hizon vs. Court of Appeals, 10 this Court held that the law, as contained in the last paragraph of
Section 33, creates a presumption that illegal fishing has been committed when fish caught or killed
with the use of explosives, obnoxious or poisonous substances or by electricity are found in a fishing
boat. In this case, it cannot be denied that the fishes found in petitioners' banca were caught or killed
by the use of explosives.

The Report 11 of Bureau of Fisheries employees Joey de la Cruz and Rolando Amoroso states:

Republic of the Philippines

Department of Agriculture

Roxas City

1990-05-08

The Provincial Agricultural Officer

Department of Agriculture

Roxas City

Sir:

I have the honor to submit to this office the result of the scientific fish examination
conducted on the fish samples taken from the possession of Mr. Johnson Umiten
Sucgang, 38 years old, married and resident of Barangay Basiao, Ivisan, Capiz and
company on May 7, 1990, 6:30 PM by combined elements of the Department of
Agriculture, PC/INP Unit of Ivisan, Capiz and Barangay officials of Basiao, Ivisan, Capiz
conducting sea borne patrol on illegal fishing.

Source of fish samples : Sea water of Brgy., Basiao, Ivisan,

Capiz

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 Fish samples taken from : Johnson U. Sucgang, 38 years old,

married, of Brgy., Basiao, Ivisan,

Capiz, et. al.

Date fish samples taken : May 7, 1990 at 6:30 PM

Date fish samples examined : May 7, 1990 at 7:00 PM

Name offish samples taken Number Weight Value

Local Name

Bulawis 2 pcs. 300 gms P 8.00

Bulgan 2 pcs. 200 gms 10.00

Pakol 1 pc. 100 gms 2.00

Bag-angan 1 pc. 150 gms 3.00

Bukod 1 pc. 150 gms 3.00

Characteristics noted on the fish examined:

1. External Manifestation

a. Blood, oozing on the operculum.

2. Internal Manifestation

a. Air bladder raptured deeply stained with blood;

b. Vertebral column broken with blood stain.

Conclusion:

The fish samples manifested signs that said fish were caught or killed by the use of
explosives.

Examined by:

(Sgd.)

JOEY I. DE LA CRUZ

(Sgd.)

ROLANDO E. AMOROSO

Fish Examiners

Joey de la Cruz affirmed the above findings in his testimony before the trial court. 12 Said testimony
was corroborated by Rolando Amoroso, a co-employee of De la Cruz in the Bureau of Fisheries. The
latter further stated that the fish were killed specifically by dynamite:

286
 ATTY. LUMAWAG:

Q Can you identify whether it was through dynamite or any other

means of explosive the fish was caught?

A Yes, sir. Because you know when we saw, when we conducted the
external manifestation of the fish, not only blood oozing from the ears
but also from the eyes that were protruding.

Q Is it not possible that it be caused also through fishing by means

of electricity?

A No.

Q Other kinds of explosives?

A Yes, explosives.

Q For example, what other aside from dynamite?

A What explosives aside from dynamite, no other. 13

The trial court correctly gave credence to these testimonies, thus:

Above three (3) accused would like the Court to believe that the seven (7) pieces of
fish samples taken by the team of fishing law enforcers were the catch of their fish net
they locally called [sic] "patuloy."

xxx xxx xxx

With the external and internal examination by Joey de la Cruz and Rolando Amoroso
showing that these fishes were caught with the use of explosive, bare denial of above
three (3) accused that they caught them by means of a fishing net they locally call
"patoloy" is insufficient to disprove such finding. It is simply a superiority of weight of
object evidence over testimonies of the accused.

Joey de la Cruz is an agricultural technologist of their office and a graduate of Bachelor

of Science in Fishery. Joey de la Cruz and Rolando Amoroso had undergone training
course in fishery laws and implementing regulations as well as actual demonstrations
in sea to practice what they had learned in theory. [As] . . . technical personnel of the
Bureau of Fishery and Aquatic Resources, their finding after an internal and external
examination of fish samples to prove they were caught with the use of explosives
should be presented to show that these prosecution witnesses fabricated their story.
There is no ulterior motive which implied them to testify as they did. Furthermore, no
evidence was introduced by the defense to impeach their credibility nor evidence to
discredit their persons. Credibility of the testimonies having remained unimpeached,
it shall be given great weight in the determination of the guilt of the accused. Besides,
being public officers to enforce fishing laws, in the absence of ill-motive on their part,
to impute to the accused a serious offense of illegal fishing with the use of explosive,
the presumption is that there was regular performance of public duty on their part. 14

The presumption that the crime of illegal fishing was committed has, therefore, been clearly
established. Such presumption, however, is merely prima facie, and may be rebutted by the
accused. 15

Petitioners attempt to overcome said presumption by disputing the findings of prosecution witnesses
Joey de la Cruz and Rolando Amoroso. They claim that since not all their catch were examined, there
can be no conclusive proof that the fish were killed with the use of explosives. 16

287
 They also question the credibility of these witnesses, thus:

. . . . If it is true that prosecution witness Joey dela Cruz, allegedly a technical

personnel [sic] of the Bureau of Fisheries and competent to determine if a fish is killed
by dynamite blast, found the 7 fishes to have been killed by a dynamite blast, it was
unnatural for the team not to arrest the petitioners on the spot. . . . 17

Petitioners' arguments have no merit.

It is ridiculous to have expected that all the fish found in the accused's fishing boat would be
subjected to an examination. It is sufficient that, as in the case at bar, a random sample of the
accused's catch was examined and found to have been killed with the use of explosives. A patent
impracticality would result if the law required otherwise.

The fact that the patrol team did not immediately deliver the accused to the municipal jail does not
diminish the credibility of the above witnesses. Persinefles U. Oabe, the barangay captain of Basiao,
gave a plausible explanation for the accused's release:

A We released those six persons because if we bring them to the

municipality of Ivisan we have no available transportation because
they were only riding in a single motor vehicle. 18

The want of available transportation is not surprising. The dearth in law enforcement facilities,
especially in the provinces, is not lost on this Court and is a matter of judicial notice.

In fine, we find no reason to disturb the assessment of the trial court regarding the credibility of
prosecution witnesses Joey de la Cruz and Rolando Amoroso. Its findings are accorded great respect
by appellate tribunals since trial courts have the advantage of examining the witnesses' testimonies
and observing their demeanor first hand. 19

Petitioners also argue that they could not have been caught fishing with the use of dynamite in
shallow waters because the fishes used as evidence were described by the prosecution witnesses as
"deep sea fishes." According to petitioners:

The seven (7) fishes that the prosecution used as evidence were described by
prosecution witnesses as "deep sea fishes". But it has been shown in the testimony of
petitioner Santiago Argoncillo that he and the other petitioners were fishing in
shallow waters about 1 1/2 meters deep (TSN, March 13, 1991, p. 7) and using fishnet
200 armslength long and 1 meter wide (TSN, March 13, 1991, p. 4). This testimony was
not rebutted by the prosecution. In fact, the 3 accused who were acquitted by the trial
court were found by the prosecution witnesses standing on the seashore near where
the petitioners were fishing (TSN, January 23, 1991, pp. 5 to 6). That petitioners would
engage in dynamite fishing in shallow waters and near the seashore would be
unnatural. The allegation that the petitioners were fishing with the use of explosive is
therefore not credible. 20

We are not persuaded.

The fishes caught by petitioners were not actually "deep sea fishes" in the sense that they came from
the deep portions of the sea as distinguished from shallow waters or waters near or along the shores.
The fishes caught were locally known as "vulgan," "bulawis," "pacol," and "bag-angan." They are
generally described as "isda sa bato" or "bottom feeders." The following excerpt from the testimony
of fish examiner Joey de la Cruz shows that the term "deep sea fishes" arose from the trial court's
erroneous translation of "isda sa bato" or "bottom feeders" which were the terms actually employed
by said witness to describe the subject fishes:

ATTY. LUMAWAG:

288
 Q What were the species of the fishes that you recovered from that
banca?

A Bottom feeders.

COURT:

"Isda sa bato," in English?

A Bottom feeders.

COURT:

Deep sea fishes. 21

Petitioners next contend that if it is true that they were engaged in illegal fishing, it would be
"unnatural" for them to use a boat which would make it difficult for them to escape from the law
enforcers riding motorized boats. 22

Petitioners' contention is too ludicrous to warrant serious consideration. The law punishing illegal
fishing does not require the use of motorized banca or boat for the crime to be committed.
Concededly, a motorized banca can better serve those engaged in illegal fishing for purposes of
eluding law enforcers. However, not everyone can financially afford to fit a motor in his banca. Indeed,
petitioner Argoncillo admitted that the banca that they were using was leased from a certain Dikoy
Odrunia. 23

Petitioners likewise aver that they did not flee when the law enforcers arrived, and even voluntarily
reported to the Ivisan Police Station the following morning. They submit that their alleged non-flight
should strengthen their claim of innocence. 24

We disagree. There is no established doctrine to the effect that, in every instance, non-flight is an
indication of innocence. 25 Moreover, even if they wanted to, petitioners could not have possibly
eluded the law enforcers who were in two pump boats. Attempts to flee would also have been
useless since petitioners were already identified by the barrio captain.

Lastly, the fact that the accused were asked by the patrol team whether or not they heard an
explosion is not in any way reflective of petitioners' innocence. We deem such inquiry as nothing
more than a part of the investigative process. It is quite common, and in most cases, necessary, for
law enforcers to ask questions to help them ascertain whether or not there exists probable cause to
arrest persons suspected of committing a crime.

Having failed to discharge themselves of the burden of disproving that they have committed illegal
fishing, the Court is left with no alternative but to affirm petitioners' conviction.

The penalty imposed by law 26 for illegal fishing if explosive is actually used is imprisonment ranging
from twenty (20) years to life imprisonment. The Indeterminate Sentence Law provides that if, as in
this case, the offense is punished by a law other than the Revised Penal Code, the court shall sentence
the accused to an indeterminate sentence, the maximum term of which shall not exceed the
maximum fixed by said law and the minimum shall not be less than the minimum term prescribed by
the same. 27 The trial court therefore erred when it sentenced petitioners to "suffer a straight penalty
of twenty (20) years imprisonment." 28 In Spouses Jose and Trinidad Bacar vs. Judge Salvador P. de
Guzman, Jr., 29 we held that it was erroneous to impose a straight penalty of six (6) years
imprisonment on the accused for homicide. We explained:

. . . It is basic law that . . . the application of the Indeterminate Sentence Law is

mandatory where imprisonment exceeds one (1) year, except only in the following
cases:

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 a. Offenses punished by death or life imprisonment.

b. Those convicted of treason (Art. 114), conspiracy or

proposal to commit treason (Art. 115).

c. Those convicted of misprision of treason (Art. 116),

rebellion (Art. 134), sedition (Art. 139, or espionage
(Art. 117).

d. Those convicted of piracy (Art. 122).

e. Habitual delinquents (Art. 62, par. 5).

Recidivists are entitled to an indeterminate sentence. (People v.

Jaramilla, L-28547, Feb. 22, 1974). Offender is not disqualified to avail
of the benefits of the law even if the crime is committed while he is on
parole. (People v. Calreon, CA 78 O.G. 6701, Nov. 19, 1982).

f. Those who escaped from confinement or those who

evaded sentence.

g. Those granted conditional pardon and who violated

the terms of the same (Art. 159). (People v. Corral, 74
Phil. 359).

h. Those whose maximum period of imprisonment

does not exceed one year.

Where the penalty actually imposed does not exceed one year, the
accused cannot avail himself of the benefits of the law, the application
of which is based upon the penalty actually imposed in accordance
with law and not upon that which may be imposed in the discretion of
the Court. (People v. Hidalgo, [CA] G.R. No. 00452-CR, Jan. 22, 1962).

i. Those who are already serving final judgment upon

the approval of the Indeterminate Sentence Law.

The need for specifying the minimum and maximum periods of the indeterminate
sentence is to prevent the unnecessary and excessive deprivation of liberty and to
enhance the economic usefulness of the accused, since he may be exempted from
serving the entire sentence, depending upon his behavior and his physical, mental,
and moral record. The requirement of imposing an indeterminate sentence in all
criminal offenses whether punishable by the or by special laws, with definite minimum
and maximum terms, as the Court deems proper within the legal range of the penalty
specified by the law must, therefore, be deemed mandatory. 30

Accordingly, the proper penalty to be imposed upon the accused should be

an indeterminate penalty which is hereby set at twenty (20) years as minimum to twenty-five
(25) years as maximum.

WHEREFORE, the petition is hereby DISMISSED, and the decision of the Court of Appeals is AFFIRMED
with the modification that petitioners are hereby sentenced to suffer an indeterminate penalty of
imprisonment ranging from twenty (20) years as minimum to twenty-five (25) years as maximum.

SO ORDERED.

Narvasa, C.J., Romero and Purisima, J., concur.

290
G.R. No. 128618. November 16, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. FELICISIMO NARVASA, JIMMY ORANIA and MATEO
NARVASA, accused, FELICISIMO NARVASA and JIMMY ORANIA appellants.

DECISION

PANGANIBAN, J.:

What crime or crimes are committed when a killing is perpetrated with the use of unlicensed firearms?
In the absence of the firearms themselves, may illegal possession of firearms be proven by parol
evidence?

The Case

Appellants Felicisimo Narvasa and Jimmy Orania seek the reversal of the October 11, 1996 Decision1 of
the Regional Trial Court of Alaminos, Pangasinan, in Criminal Case Nos. 2629-A, 2648-A and 2646-A,
finding them guilty beyond reasonable doubt of illegal possession of firearms in its aggravated form and
sentencing them to reclusion perpetua.

Assistant Provincial Prosecutor Emiliano A. Rabina filed three Informations2 against the appellants and
their co-accused, Mateo Narvasa. In Criminal Case No. 2648-A, the Amended Information filed on
November 10, 1993 charged Felicisimo Narvasa (in conspiracy with the other accused) with aggravated
illegal possession of firearm allegedly committed as follows:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of
Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously have in his possession,
control and custody an M-14 Rifle without first securing the necessary license or permit from the lawful
authorities and which firearm in conspiracy with Jimmy Orania and Mateo Narvasa was used in the
killing of one SPO3 Primo Camba, victim in Crim. Case No. 2629-A.

In Criminal Case No. 2646-A, Jimmy Orania (in conspiracy with the other accused) was charged with
aggravated illegal possession of firearm in the Amended Information which reads:

That on or about February 6, 1992 at Sitio Bugtong, Barangay Patar, [M]unicipality of Agno, [P]rovince of
Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court, the
above-named accused, did then and there willfully, unlawfully and feloniously have in his possession,
control and custody a .30 U.S. Carbine without first securing the necessary license /and/or permit from
the lawful authorities and which firearm in conspiracy with Mateo Narvasa and Felicisimo Narvasa was
used in the killing of SPO3 Primo Camba, victim in Crim. Case No. 2629-A.

In Criminal Case No. 2629-A, Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa were charged with
homicide allegedly committed as follows:

That on or about February 6, 1992, at Sitio Bugtong, [B]arangay Patar, [M]unicipality of Agno, [P]rovince
of Pangasinan, New [sic] Republic of the Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating and mutually helping one another, with intent to
kill, armed with high powered guns, did then and there willfully, unlawfully, and feloniously shoot SPO3
PRIMO CAMBA which caused his instantaneous death as a consequence, to the damage and prejudice of
his heirs.

Felicisimo Narvasa and Jimmy Orania were arrested, but Mateo Narvasa remained at large. When
arraigned, the two appellants, assisted by their counsel,3 pleaded not guilty.4 Trial proceeded in due
course. Thereafter, the court a quo rendered the assailed Decision, the dispositive portion of which
reads:

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WHEREFORE, in consideration of the foregoing premises and the evidence presented, this Court finds
both accused Felicisimo Narvasa in Criminal Case No. 2648-A and Jimmy Orania in Criminal Case
No.2646-A [g]uilty beyond reasonable doubt of the crime of [i]llegal [p]ossession of [f]irearms in its
aggravated form in these cases and therefore, both accused are sentenced to death penalty but for
reasons that the law at that time of the commission of the crime prohibits death sentence penalty,
these two accused therefore shall each suffer the sentence of single, indivisible penalty of reclusion
perpetua and are ordered to pay jointly and severally the heirs of the victim the amount of P50,000.00
as death indemnity and moral damages of P100,000.00 each, plus cost.

In Criminal Case No. 2629-A for [h]omicide, this Court has considered this case as [a] necessary
component of the crimes of [i]llegal [p]ossession in their aggravated form, as the same is merely an
element of the principal offense of [i]llegal [p]ossession of [f]irearms in [its] aggravated form, which is
the graver offense.

With respect to accused Mateo Narvasa, since he has not been arrested and never brought to the
jurisdiction of this Court, this case in the meantime, is ordered archived insofar as said accused Mateo
Narvasa is concerned.

Let an Alias Warrant of Arrest issue as against accused Mateo Narvasa.

The [b]ailbond posted by accused Felicisimo Narvasa is hereby ordered cancelled.

Appellants counsel then filed a Notice of Appeal to the Court of Appeals.5 In an Order6 dated October 24,
1996, the trial court deemed the appeal filed by Felicisimo Narvasa and Jimmy Orania perfected, and
effected the transmittal of the case records to the Court of Appeals. Realizing the mistake, the Court of
Appeals subsequently forwarded the records to this Court.7

The Facts

Evidence for the Prosecution

In his Brief, the solicitor general8 presented the following narration of facts:

On February 6, 1992, after lunch time[,] Villamor Laderas and Ernesto Nagal, councilmen of
Quinaoayanan, Bani, Pangasinan, acting on a report that there were missing carabaos, pigs and goats,
repaired to the far-flung Sitio Bugtong of the town of Bani and to Sitio Patar of the adjoining town of
Agno in Pangasinan, which they reached at around 5:30 that afternoon. Then Laderas and Nagal
patrolled the area. Along their way, the two chanced upon the gang of appellants[.] [T]hey were five and
three of them were armed. Jimmy Orania was holding a caliber .30 U.S. carbine, Mateo Narvasa was
armed with [an] M-16 and Felicisimo Narvasa was carrying an M-14.

The two are familiar with those kind[s] of guns as they have seen similar ones carried by policemen.
They said, a carbine is shorter than [an] M-14 and [an] M-16 is longer than [an] M-14 (Tsn., April 21,
1994, pp. 1-35, December 13, 1995, pp. 1-12).

Laderas and Nagal simply stared at the five and then they proceeded to their way home. Unluckily for
the goons, the two councilmen met the two policemen[,] SPO3 Primo Camba and PO2 Simeon Navora
who were on patrol and they reported what they saw (Ibid).

The two policemen were also responding to a report about the missing animals and they suggested that
all of them should track down the armed goons (Ibid).

After walking some distance, the four responding men saw the house of appellant Felicisimo Narvasa on
a hilly portion around 100 meters away from their path. They decided to investigate at the house but
before they could negotiate the distance, they were met by a volley of gunfire. The four[,] who were ten
meters apart[,] dove and sought cover (Tsn., April, 1994, p. 11). When the firing took a halt, Laderas had
the courage to raise his head and [view] xxx the source of the gunfire. Laderas saw Felicisimo Narvasa in
a squatting position aiming at the two policemen and Jimmy Orania was seated near him guiding him at

292
his target. Mateo Narvasa was also aiming his gun. There was an exchange of gunfire as the policemen
were able to take proper positions. Unfortunately, SPO3 Camba was hit. Navora summoned Laderas and
Nagal to get closer to give aid to Camba. Laderas and Nagal carried Camba as they retreated and, Navora
followed moving backwards as he kept firing at their enemies (Ibid, tsn., July 20, 1994, pp. 1-8; tsn.,
August 15, 1994, pp. 2-30).

In the process of the retreat, Camba [bled] profusely and he died even before he could be brought out
from the scene of the crime.

The body of Camba was left at the scene of the crime while his companions escaped and called for help.
Several policemen arrived. Pieces of evidence like empty shells of M-16, M-14 and caliber .30 U.S.
carbine bullets were gathered and some policemen were tasked to track down the goons (Exhs. C, C-1 to
C-4; tsn., August 16, 1994, pp. 6-10).

Shortly thereafter, Felicisimo Narvasa, Glicerio Narvasa, Rederio Narvasa and Jimmy Orania were
apprehended. Mateo Narvasa was not found. The four were investigated and paraffin tested. Felicisimo
Narvasa and Jimmy Orania were found positive of gunpowder burns (Tsn., August 16, 1994, pp. 11-15).9

Evidence for the Defense

Appellants deny the charges against them. Felicisimo Narvasa even claims that his son Arnel was shot by
Ernesto Nagal, Villamor Laderas and PO2 Simeon Navora. In their Brief,10 they state:

Felicisimo Narvasa testified that he was sleeping at his house on the afternoon of February 6, 1992
when Glicerio Narvasa woke him up and informed him that his son Arnel was shot. He went downstairs
and saw his co-accused Jimmy Orania embracing his son. He asked his son who shot him and the latter
told his father that it was the group of Councilman Laderas who shot him. He instructed Orania and his
wife to bring his son to the hospital but the latter died at the hospital. He further averred that before he
slept, Jimmy Orania, Glicerio Narvasa and Rederio Narvasa were in his house drinking two bottles of gin
after helping him [fix] the fence in his house. Accused-appellant Narvasa when asked to explain the
charge against him denied committing the same. On March 17, 1992 he gave his affidavit naming
Ernesto Nagal, Villamor Laderas and Simeon Navora as the assailants of his son. (TSN, August 8, 1999, pp.
3-17)

Jimmy Orania testified that on February 6, 1992, he was in the house of his co-accused Felicisimo
Narvasa because he was invited to work on the fence of Felicisimo. After finishing their work, Jimmy[,]
together with Glicerio and Rederio Narvasa[,] drunk two bottles of gin. At about 5:00 oclock in the
afternoon he instructed Arnel Narvasa to get their carabaos grazing around 100 meters north of the
house of Felicisimo, when he heard a gunshot coming from that direction. Arnel shouted for help, so he
proceeded to the place where Arnel was shot and carried him to the house of Felicisimo. The latter was
awakened by Glicerio and when he asked his son who shot him, Arnel answered that it was the group of
Laderas.

Jimmy Orania further averred that he knew nothing and denied participation in the killing of Primo
Camba. That on the day after February 6, 1992, they were picked up by the police. (TSN, August 20,
1996, pp. 3-13).11

Ruling of the Trial Court

The trial court accorded credibility to the prosecution witnesses and held that mere denial could not
overcome the prosecution evidence showing that appellants used high-powered firearms to shoot at the
prosecution witnesses, thereby resulting in the death of SPO3 Primo Camba. Further supporting said
testimonies were the results of the paraffin test conducted on appellants and the recovery of various
cartridges and shells matching the firearms purportedly used in the crime. Though these unlicensed
firearms were not presented as evidence, the trial court, citing People v. Ferrera,12 ruled that appellants
may still be convicted of illegal possession of firearms.

293
Finally, the trial court found that appellants acted in conspiracy in the killing of Primo Camba. However,
on the basis of People v. Barros,13 it held that the homicide was merely an element of the illegal
possession of firearms in its aggravated form; thus, homicide in the present case was taken into account
not as a separate crime but as an aggravating circumstance which increased the penalty for the illegal
possession of firearms.

Hence, this appeal.14

Assignment of Errors

In assailing the trial courts Decision, appellants interpose the following errors:

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
INCONSISTENT TESTIMONIES OF THE WITNESSES FOR THE PROSECUTION.

II

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS DESPITE THE

INSUFFICIENCY OF THE PROSECUTIONS EVIDENCE TO WARRANT CONVICTION OF THE
ACCUSED-APPELLANTS BEYOND REASONABLE DOUBT OF THE CRIME OF AGGRAVATED
ILLEGAL POSSESSION OF FIREARM.15cräläwvirtualibräry

In the main, the resolution of this case revolves around the credibility of the prosecution witnesses, the
sufficiency of the prosecution evidence and the characterization of the crime committed.

The Courts Ruling

The appeal is not meritorious. In light of Republic Act 8294,16 however, appellants should be convicted
only of homicide, with the special aggravating circumstance of the use of illegally possessed firearms.

First Issue: Credibility of Prosecution Witnesses

Appellants question the credibility of Witnesses Laderas and Nagal because of an alleged inconsistency
in their testimonies. Laderas testified that there was an exchange of fire between appellants and PO2
Simeon Navora, while Nagal declared that only the appellants fired. Appellants point out that conflicting
testimonies on a material and relevant point casts doubt [on] the truthfulness or veracity 17 of such
testimonies.

Appellants contention is untenable. The circumstances of the instant case explain the seeming
inconsistency in the testimonies of the two witnesses. At the time, they were under fire and in fear of
losing their lives. Moreover, they did not take cover in the same place that Navora did.

Nonetheless, their uncertainty on whether Navora had fired back is immaterial to the crime charged and
too insignificant to impair their credibility. In any event, the Court has ruled that a witness is not
expected to remember an occurrence with perfect recollection of minute details.18

Second Issue: Sufficiency of the Evidence

Appellants cite People v. Lualhati,19 wherein this Court ruled that in crimes involving illegal possession of
firearm, the prosecution has the burden of proving the elements thereof, viz: the existence of the
subject firearm and the fact that the accused who owned or possessed the firearm does not have the
corresponding license or permit to possess the same. Appellants contend that the existence of the
firearms was not sufficiently proven because the prosecution had not presented the firearms as
evidence. It is necessary, they argue, that said firearms allegedly possessed by the accused-appellants
and allegedly used in the killing of Policeman Primo Camba be presented in evidence as those firearms
constitute the corpus delicti of the crime with which they are sentenced.20cräläwvirtualibräry

294
Appellants argument is not persuasive. In People v. Lualhati, this Court merely stated that the existence
of the firearm must be established; it did not rule that the firearm itself had to be presented as evidence.
Thus, in People v. Orehuela,21 the Court held that the existence of the firearm can be established by
testimony, even without the presentation of the said firearm. In the said case, Appellant Orehuela was
convicted of qualified illegal possession of a firearm despite the fact that the firearm used was not
presented as evidence. The existence of the weapon was deemed amply established by the testimony of
an eyewitness that Orehuela was in possession of it and had used it to kill the victim, viz.:

We consider that the certification was adequate to show that the firearm used by Modesto Orehuela in
killing Teoberto Canizares was a firearm which Orehuela was not licensed to possess and to carry
outside his residence on the night that Teoberto Canizares was shot to death. That that firearm was
a .38 caliber pistol was shown by the testimony and report of NBI Ballistician Bonifacio Ayag. When the
above circumstances are taken together with the testimony of the eyewitness that Modesto Orehuela
was in fact in possession of a firearm and used the same to kill Teoberto Canizares, we believe that
accused Orehuela was properly found guilty of aggravated or qualified illegal possession of firearm and
ammunition.

In the present case, the testimonies of several witnesses indubitably demonstrate the existence of the
firearms. Villamor Laderas stated that when he went to Barangay Quinaoayanan, Bani, Pangasinan to
investigate a report regarding missing carabaos, pigs and goats, he saw the appellants carrying long
firearms. We quote hereunder the relevant portion of his testimony:

Q And when you saw the two accused together with the three others, what have you noticed in their
persons?

A They were holding long firearms, sir.

Q Who of the five persons did you see was holding long firearms?

A Jimmy Orania was holding a carbine; Mateo Narvasa was holding an M-16.

Q About Felicisimo Narvasa, what was he holding?

A Felicisimo Narvasa was holding [an] M-14.22cräläwvirtualibräry

Ernesto Nagal likewise stated that he saw appellants carrying long firearms, as his testimony indicates:

Q What did you notice in the persons of the five persons you met?

A They were carrying arms, sir.

Q What kind of firearm were the five persons, or some of them, carrying?

A Jimmy Orania is carrying a caliber .30.

Q How about Mateo Narvasa?

A Mateo Narvasa is carrying [an] M-16.

Q How about Felicisimo Narvasa?

A A long firearm was carried by Felicisimo Narvasa, sir, but I dont know the caliber.23cräläwvirtualibräry

That herein appellants were the ones who had shot at the prosecution witnesses was confirmed by
Laderas, who testified as follows:

Q How did you know that the gunfire came from the west?

295
A Because we were facing west.

Q And while the gunfire was going on, did you know who fired those gunshots?

A We know sir, because we can see them.

Q Whom did you see?

A Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa, sir.24cräläwvirtualibräry

In addition, Primo Camba was hit by a bullet, and empty shells of M-16, M-14 and .30 caliber carbine
bullets were later on recovered in the vicinity of the place where the shooting occurred.

The above facts, duly proven and taken together, sufficiently establish the existence of the subject
firearms and the fact that appellants possessed and used said firearms in firing at Villamor Laderas,
Ernesto Nagal, and Simeon Navora, as well as Primo Camba who succumbed to the gunshot wound he
had sustained.

The present case can be distinguished from People v. Navarro25 wherein the Court held that illegal
possession of firearm could not be deemed an aggravating circumstance because the existence of the
said firearm was not proven. In said case, a witness testified that he saw appellant shoot the victim with
a short firearm. No firearm, however, was presented as evidence, although a gun was recovered from
the accused when he was arrested. Moreover, no proof was adduced to show that the firearm
allegedly seen by the witness was the same one recovered by the authorities from the accused. Thus,
the Court held:

In the case at bar, the Information alleged that on January 5, 1991, the appellant had in his possession
an unlicensed firearm which he used in killing Ferdinand Rabadon. This firearm was allegedly recovered
on January 5, 1994, when appellant was arrested. However, said firearm was not presented in court or
offered as evidence against the appellant. Although Rabago testified that he saw the appellant with a
short firearm when the latter shot Rabadon on January 5, 1991 no other proof was presented to show
that such gun, allegedly used on January 5, 1991, was the same one recovered on January 5, 1994. The
prosecution was not able to establish sufficiently the existence of the subject firearm x x x.

In other words, the evidence on the existence of the firearm was beset with doubt and conflict. Such
uncertainty is not found in the present case, for the testimonies of several witnesses indubitably
established that the subject firearms were in the possession of the appellants.

As to proof that appellants had no license or permit to possess the firearms in question, we have held
in People v. Villanueva26 that the second element of illegal possession of firearms can be proven by the
testimony or the certification of a representative of the PNP Firearms and Explosives Unit that the
accused was not a licensee of the firearm in question. The Court ruled:

As we have previously held, the testimony of, or a certification from the PNP Firearms and Explosives
Unit that the accused-appellant was not a licensee of the said firearm would have sufficed to prove
beyond reasonable doubt the second element of the crime of illegal possession.

The prosecution submitted a certification showing that Appellants Felicisimo Narvasa and Jimmy Orania
were not licensed firearm holders,27 a fact that was attested to by SPO4 Roberto Manuel, a member of
the PNP stationed at the provincial headquarters of the Pangasinan Provincial Command as Assistant
Firearms and Explosives NCPO, who testified thus:

Q And did you bring with you the Master List of the firearm licensed holders in Pangasinan?

A Yes, sir.

Q Will you please produce it?

296
A (Witness showing a folder, which is the Master List of firearm licensed holders in Pangasinan.)

Q And with the aid of that voluminous list of firearm holders in Pangasinan, will you please tell his Honor
if Felicisimo Narvasa and Jimmy Orania appear therein as licensed firearm holders?

A Their names do not appear, as manifested by our [Master List as licensed] holders of any caliber,
sir.28cräläwvirtualibräry

Appellants did not present any evidence and neither did they even claim -- that they were in fact
licensed firearm holders.

Appellants Responsible
for Policemans Death

Laderas, Nagal and Navora testified that as their group, which included Primo Camba, approached
Felicisimo Narvasas house, they were suddenly fired upon. Camba was hit and it was from that bullet
wound that he died. That appellants were responsible for his death is clear from Navoras testimony:

Q And on your way following them what happened?

A When we were about 100 meters North of the House of Ising Narvasa we were met [by] a heavy
volume of gunfire.

Q Now, if you were met according to you with heavy volume of gunfire, what did you xxx and your
companion [do]?

A We dive[d] to the ground for safety, sir.

xxx

Q Upon diving to the ground, what happened to Primo Camba?

A Primo Camba was hit, sir[.]

Q How did you come to know that Primo Camba was hit by the first exchange of gunfire?

A Just after we dived to the ground, xxx Primo Camba told me that he was hit.

Q And when Primo Camba told you that he was hit, what did you do?

A I signalled the two (2) councilmen to get near me.

xxx

''Q After giving instruction to the two (2) councilmen, what did you do?

A They carr[ied] him while we were retreating.

Q Carried the body of Primo Camba, to what place?

A We retreated [to the] East direction, until we reach the yard of [a] certain Prudencio.

xxx

Q And when you reach[ed] the premises of Prudencio, what was the condition of Primo Camba?

A He [was] no longer breathing, sir.29cräläwvirtualibräry

297
Laderas was able to identify their attackers as Felicisimo Narvasa, Jimmy Orania and Mateo Narvasa. As
these three directed and fired their guns at Laderas, Nagal, Navora and Camba, there was unity in action
and purpose, and thus, conspiracy was present. Although it was not ascertained who among them
actually shot Camba, all of them are liable for his death. In conspiracy, the act of one is the act of all.

Third Issue:

The Crime

The totality of the evidence shows that appellants possessed unlicensed firearms, which they used in
killing Primo Camba. In its Decision, the trial court convicted appellants of [i]llegal [p]ossession of
[f]irearms in its aggravated form and considered homicide merely an element of the principal offense of
[i]llegal [p]ossession of [f]irearms in its aggravated form. Applying People v. Barros30 to the proven facts,
the trial court imposed upon appellants the penalty of reclusion perpetua. However, a new law has in
the meanwhile been enacted.

Republic Act No. 8294,31 which imposes a lighter penalty for the crime, provides:

Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition

or Instruments Used or Intended to be Used in the Manufacture of Firearms or Ammunition. -- The
penalty of prision correccional in its maximum period and a fine of not less than Fifteen Thousand pesos
(P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose,
or possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool or instrument used or intended to be used in
the manufacture of any firearm or ammunition; Provided, That no other crime was committed.

The penalty of prision mayor in its minimum period and a fine of Thirty Thousand pesos (P30,000) shall
be imposed if the firearm is classified as high powered firearm which includes those with bores bigger in
diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered
firearms but considered powerful such as caliber .357 and caliber .22 center-fire magnum and other
firearms with firing capability of full automatic and by burst of two or three; Provided, however, That no
other crime was committed by the person arrested.

If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed
firearm shall be considered as an aggravating circumstance.

In People v. Molina,32 this Court en banc explained that RA 8294 considers the use of an unlicensed
firearm only an aggravating circumstance in murder or homicide, viz.:

Under our ruling in People vs. Quijada, violation of PD 1866 is an offense distinct from murder;
appellants should perforce be culpable for two separate offenses, as ruled by the trial court.

Fortunately for appellants, however, RA 8294 has now amended the said decree and considers the use
of an unlicensed firearm simply as an aggravating circumstance in murder or homicide, and not as a
separate offense.

Under RA 8294, appellants can be held liable only for homicide33 and penalized with reclusion temporal.
Pursuant to Article 22 of the Revised Penal Code,34 RA 8294 should be given retroactive effect.

Civil Liability

Consistent with prevailing jurisprudence, appellants are liable to pay, jointly and severally, the heirs of
Primo Camba the sum of fifty thousand pesos (P50,000) as indemnity ex delicto for his death.

However, the award of two hundred thousand pesos (P200,000) representing moral damages should be
deleted since no evidence of anxiety, moral shock, wounded feelings or similar injury was presented
during the trial.

298
WHEREFORE, the assailed Decision is hereby MODIFIED. For the death of Primo Camba, Appellants
Felicisimo Narvasa and Jimmy Orania are found GUILTY of HOMICIDE with the special aggravating
circumstance of using unlicensed firearms. Applying the Indeterminate Sentence Law, they are each
sentenced to twelve (12) years of prision mayor, as minimum, to twenty (20) years of reclusion temporal,
as maximum; and ordered to pay the heirs of Primo Camba P50,000 as death indemnity. However, the
award of moral damages is hereby DELETED.

SO ORDERED.

Davide Jr. (Chairman), Bellosillo, Vitug and Quisumbing JJ., concur.

[G.R. No. 125434. December 22, 1999]

DELFIN ABALOS, Petitioner, v. COURT OF APPEALS, RTC-Br. 38, LINGAYEN, PANGASINAN, and PEOPLE
OF THE PHILIPPINES, Respondents.

DECISION

BELLOSILLO, J.:

Liberato Damias visited his girlfriend at her house in San Isidro, Rosales, Pangasinan, on the night of 27
January 1993. He did not realize that that would be his last rendezvous with her. He was gunned down
soon after and died slowly in her arms. His assailant apparently driven by extreme jealousy hurriedly fled
leaving the lovers to the mercy of their fate.

On 26 February 1993 an Information was filed before the Regional Trial Court of Lingayen, Pangasinan,
charging petitioner Delfin Abalos with murder for the killing of Liberato Damias.1 The Information
alleged that the accused, using an unlicensed firearm, with intent to kill, employing treachery and taking
advantage of superior strength, shot and killed Liberato Damias. It further alleged that Delfin Abalos
should be considered a recidivist having been previously convicted by the Regional Trial Court of
Pangasinan.2cräläwvirtualibräry

The bereaved Veronica Bulatao testified that she had known petitioner Delfin Abalos for several years as
they were neighbors, their houses being only fifty (50) meters from each other.3 According to her, Delfin
was courting her since June 1992 but she jilted him since she was already involved with the now
deceased Liberato Damias. In fact, she said, Delfin was enraged when she rejected him that he even
threatened to kill her if she decided to marry Liberato.4 He relentlessly pursued her even when she left
San Isidro to reside temporarily in San Juan and Sta. Ana, Manila.5 She also testified that a few days
before he shot Liberato Delfin went to her house ostensively to watch television. But when she learned
that his real intention was to see her she told him not to visit her again.6cräläwvirtualibräry

Veronica further narrated that on the night of 27 January 1993 Liberato visited her at around 7 o'clock.
As she was entertaining him at the balcony of their house she noticed petitioner walking back and forth
in front of their house. He was just about four (4) meters or so away from them.7 As she was ill at ease
with petitioners conspicuous demeanor below, she asked Liberato to transfer to their sala where they
could continue talking. When they moved inside, Liberato sat near the entrance of the house with his
left side towards the door with Veronica sitting in front of him. The positions of Liberato and Veronica
and their proximity to one another could have heightened Delfin's animosity that he suddenly appeared
at the door and in a semi-kneeling position shot Liberato on his left side.8 Liberato could only embrace
Veronica as blood trickled from his mouth and he desperately gasped for breath. Veronica positively
identified petitioner Delfin Abalos as he scurried away since the sala of her house was adequately lit by a
kerosene lamp and he was only one (1) meter away from them when he pulled the
trigger.9cräläwvirtualibräry

SPO1 Melchor Bernabe recounted that on the night of 27 January 1993 the barangay captain of San
Isidro went to the police station and reported the shooting incident to him.10 So he proceeded to the
crime scene with the Chief of Police and SPO2 Ruben Pitok to investigate the matter. Upon reaching the
house of Veronica Bulatao he saw Liberato's body sprawled on the floor. He asked Veronica who the

299
assailant was but she was in incoherent and in a state of shock. It was only later at the police station
that she was able to reveal the identity of the gunman. Upon learning that Delfin Abalos was positively
identified by Veronica, SPO1 Bernabe went to the house of Delfin and accosted him. Then he brought
him to the station for further questioning.11cräläwvirtualibräry

Dr. Ingrid Gancinia, Municipal Health Officer of Rosales, Pangasinan, testified that Liberato died from a
bullet wound which pierced the lower part of his left armpit, and that there were powder burns on the
victims body indicating that he was shot at a very close range, probably around six (6) inches
away.12cräläwvirtualibräry

But Delfin denied killing Liberato. He claimed that on the night of 27 January 1993 he worked with his
father in the tobacco fields from 3:00 p.m. until midnight,13 and the only time he left was from 6:00 to
6:30 in the evening to get supper from their house. He stopped working at midnight and went straight
home to sleep. He only woke up at 4:00 o'clock the following morning when his father told him that
there were some policemen downstairs looking for him. After telling him that he was a suspect in the
shooting, his room was searched and then he was brought to the police station for
investigation.14cräläwvirtualibräry

Celestino Abalos, Delfins father, together with Ruben Fragata and Virgilio Ortiz, tried to corroborate
Delfin's alibi. The three (3) all claimed that they had supper near the tobacco fields from 6:30 to 8:00
p.m., and that after eating, they returned to the fields to finish their work. They also said that from the
time they finished dinner Delfin never left the fields until midnight.15cräläwvirtualibräry

Jerry Fernandez, another defense witness, testified that after spraying insecticide on his plants he took a
bath at a well near the tobacco plantation from 8:00 to 9:00 p.m. during which he saw Delfin around
twenty (20) meters away working at the fields,16 and that before heading for home he noticed Delfin still
busy with his work.

On rebuttal, Inocencio Bulatao, Veronica's father, testified that Delfin, contrary to his alibi, was not in
the fields but in their house prior to the shooting. In fact Inocencio said that at around 7:00 p.m., Delfin
was in their house watching television with his family as they customarily allowed their neighbors to do
so. When Liberato arrived Veronica took him to the balcony where they talked. An hour later, Inocencio
turned the television off, so petitioner left their house,17 and Inocencio proceeded to their kitchen to
rest. Then he heard a shot prompting him to rush to the sala to check if anything wrong happened to his
daughter.18 But Veronica told him that Delfin shot Liberato. Inocencio then called out to his neighbors
for help.19cräläwvirtualibräry

Delfin Abalos alibi failed to convince the trial court. It found petitioner guilty of murder and imposed
upon him an indeterminate prison term of fourteen (14) years, eight (8) months and one (1) day as
minimum, to eighteen (18) years, eight (8) months and one (1) day of reclusion temporal as maximum.
Petitioner was also ordered to pay the heirs of the victim P38,000.00 for actual damages, P50,000.00 for
compensatory damages and P30,000.00 for moral damages.20 However, the aggravating circumstance of
use of an unlicensed firearm was not appreciated as the weapon was never recovered.

The Court of Appeals sustained on appeal the award for damages but set aside the conviction of
petitioner for murder and found him guilty instead of the lesser crime of homicide. The appellate court
concluded that the aggravating circumstance of treachery was not indubitably established to qualify the
killing of Liberato to murder and reduced petitioner's sentence to an indeterminate prison term of
twelve (12) years of prision mayor maximum to seventeen (17) years and four (4) months of reclusion
temporal.21 His motion for reconsideration was denied. Hence, petitioner comes to us on a petition for
review.

Petitioner argues that the testimony of the lone witness, Veronica Bulatao, was not credible; that the
Court of Appeals erred in considering his three (3) prior convictions as basis for finding him guilty of
homicide; and, his guilt was not proved beyond reasonable doubt.

In an apparent attempt to destroy Veronicas credibility, petitioner asserts that her actions prior to the
shooting were highly questionable. If indeed he had threatened her life, then why did she still allow him

300
to enter their house that night? If she really saw him suspiciously walking back and forth near their
house, why did she not warn Liberato of the impending danger?22cräläwvirtualibräry

Petitioner also cites inconsistencies in her testimony, such as her assessment of the time frame when he
courted her and her statements as to when she last saw him prior to the commission of the crime.23 He
even went to the extent of saying that Veronicas act of allowing him to court her despite her existing
relationship with Liberato showed her deceitful character, hence, her unreliability as a witness.

We disagree. Veronicas actions prior to the incident and the alleged inconsistencies in her testimony do
not affect her credibility in positively identifying Liberatos killer. The fact remains that she was only a
meter away when she saw Delfin shot Liberato. Also, a kerosene lamp lighted the sala thus enabling her
to easily recognize Delfin as the gunman. And such illumination produced by a kerosene lamp has
indeed been held sufficient to allow a witness to identify a person.24 Veronica's competency in
identifying petitioner is further strengthened by the fact that they were neighbors for several years and
so she was very familiar with him. Veronica even saw him immediately before the shooting as he paced
the barangay road only a few meters away.

More importantly, we have consistently reiterated that the credibility of witnesses is a matter best
assessed by the trial court because of its unique opportunity to observe the witnesses firsthand and to
note their demeanor, conduct and attitude.25 Thus, unless certain facts of substance and value have
been overlooked, which if considered might affect the result of the case, the trial courts appraisal of the
credibility of a witness should not be overturned.26 The trial court ruled that Veronica testified in a clear,
straightforward and flawless manner.27 We see no cogent reason to deviate from that observation.

Petitioner holds that the Court of Appeals erred in giving weight to his three (3) prior convictions as a
basis for finding him guilty. He maintains that his past convictions for murder, homicide and frustrated
homicide do not prove that he was capable of killing Liberato.

Although it is true that the appellate court mentioned his prior convictions in its decision, such was not
the basis for finding him guilty of homicide. The appellate court only mentioned the prior convictions to
show that Veronica took his death threats seriously.28 The decisive factor for convicting petitioner was
still the positive identification made by Veronica during the trial.29 Obviously, even without mentioning
his earlier convictions, the Court of Appeals would have still concluded that Delfin did kill Liberato.

The last issue raised by petitioner is that the appellate court erred in finding him guilty beyond
reasonable doubt of homicide. He argues that he had a solid alibi to prove his innocence and that the
paraffin test yielded negative for powder burns on his hand, hence confirming that he never fired the
shot that killed Liberato.

For alibi to prosper, petitioner must not only prove that he was not at the crime scene but that it was
also physically impossible for him to have been present there at the time the offense was
committed.30 He miserably failed to satisfy the second requisite. Delfin himself testified that the
distance between the tobacco fields to Veronicas house was only around 400 meters and it only took
eight (8) minutes to traverse such path.31 Evidently, it was not impossible for Delfin to be present at
the locus criminis.

Further, it has been long established that alibi cannot prevail over the positive identification of the
accused by a credible witness who had no ill motive to falsely testify.32 The absence of ill motive on
Veronicas part was even substantiated by petitioner in his testimony. Thus -

Q: Since you admitted that your family and the family of the Bulataos have no misunderstanding
whatsoever, can you tell the honorable court the reason why Veronica Bulatao pinpointed you as the
one who shot Liberato Damias.

A: I dont know of any reason, sir.

Q: As far as you are concerned Veronica Bulatao has no ill-motive to testify against you, is that what you
mean.

301
A: None, sir.33

Thus, contrary to petitioners assertion, Veronica only testified against him to seek justice for Liberatos
death, and not to arbitrarily implicate anyone just to put an end to her boyfriends case.

Anent the paraffin test, it is true that it produced a negative result but such fact does not ipso
facto merit Delfins acquittal. This Court acknowledges that the absence of powder burns in a suspects
hand is not conclusive proof that he has not fired a gun.34 In fact, the traces of nitrates can easily be
removed by the simple act of washing ones hand.35cräläwvirtualibräry

However, although we agree that Delfin was Liberatos assailant, we disagree with the sentence imposed
by the appellate court. Murder, and not homicide, was committed.

The Court of Appeals, abiding by established jurisprudence, ruled that before treachery could be
considered, two (2) conditions must be present. First, that the means, method or manner of execution
employed would ensure the safety of the malefactor from the retaliatory or defensive acts of the victim;
and second, that the perpetrator deliberately or consciously adopted such means of execution. However,
the appellate court ruled that the prosecution failed to satisfy the second requisite there being no proof
that petitioner deliberately sought such manner of executing the crime to ensure his own safety from
any form of retaliation that the victim might have employed.36cräläwvirtualibräry

The records, however, prove otherwise. Before the incident, Delfin walked back and forth on the
barangay road, a few meters from the balcony where Veronica was entertaining Liberato.37 He waited
for the perfect opportunity to execute his fiendish plot. While Liberato cozily sat in Veronicas sala,
devoting his full attention to her, petitioner suddenly appeared at the door from behind and without
warning shot him. Surely, there is no other conclusion but that he deliberately and consciously
employed such means of execution to ensure his own safety from any form of defense that Liberato
might have used.

It should be remembered that the essence of treachery is the swift and unexpected attack on an
unarmed victim without the slightest provocation on the part of the latter.38 This was what Delfin did.
He attacked Liberato while he was deeply engrossed in conversation with Veronica, oblivious of the
lurking peril to his life. The trial court was therefore correct in ruling that the crime committed was
murder.

The Court of Appeals also ruled that although recidivism was alleged in the Information, the evidence
introduced was insufficient to prove it as an aggravating circumstance. According to the appellate court,
the certification presented during the trial showing that Delfin was already on parole failed to state
what crime he was previously convicted of.39 As such, there was no way to determine if the prior crime
committed fell under the same title as murder.

The records however reveal that petitioner himself openly admitted in court that he was previously
convicted of three (3) other offenses. He said:

Q: Is it not a fact Mr. Accused that you were previously convicted of murder, attempted homicide and
homicide?

A: I was convicted of Murder, Homicide and Attempted Homicide, sir.

Q: This conviction of the crime of Murder was under Criminal Case No. L-1691, CFI, Lingayen Pangasinan
and you were sentenced on July 20, 1978, is it not?

A: That was Homicide, July 29, 1978, sir.

Q: Who was your victim in that homicide case?

A: Bernardo Valdez, sir.

302
Q: About this murder case conviction, who was your victim?

A: Ricardo Villamin, sir.

Q: And when were you convicted in this murder case?

A: I cannot remember already, sir. I was convicted first of Homicide, then attempted homicide and then
murder.

Q: And who was your victim in this Attempted Homicide case?

A: Rodrigo Batucan, sir.40

This candid admission by petitioner of his prior convictions is sufficient to establish recidivism as a
generic aggravating circumstance.41 And since all of his earlier convictions fall under the same title
of The Revised Penal Code , i.e., Crimes Against Persons (Title Eight), he can be properly considered as a
recidivist.

Petitioner should therefore be convicted of murder qualified by treachery, with the generic aggravating
circumstance of recidivism. When he committed the crime, the imposition of the death penalty was still
proscribed by the 1987 Constitution, thus he should only be sentenced to reclusion perpetua and not
death. And since the penalty imposed is reclusion perpetua, an indivisible penalty, the provisions of The
Indeterminate Sentence Law applied by both the trial court and the Court of Appeals cannot be
invoked.42cräläwvirtualibräry

WHEREFORE, the Decision of the Court of Appeals finding petitioner DELFIN ABALOS guilty of homicide
is MODIFIED. He is instead adjudged GUILTY of MURDER with recidivism as a generic aggravating
circumstance. He is therefore sentenced to suffer the penalty of reclusion perpetua and to pay the heirs
of Liberato Damias P50,000.00 for civil indemnity, P30,000.00 for moral damages and P38,000.00 for
actual damages, and to pay the costs.

SO ORDERED.

Mendoza, Quisumbing, Buena, and De Leon, Jr., JJ., concur.

Endnotes:

[G.R. No. 107606. June 20, 1996.]

MERCEDES N. ABELLA, Petitioner, v. THE HONORABLE COURT OF APPEALS, and CONRADO

COLARINA, Respondents.

RESOLUTION

FRANCISCO, J.:

On May 26, 1987, petitioner Mercedes N. Abella, as lessor, and private respondent Conrado Colarina, as
lessee, signed a contract of lease 1 of a portion of Juanabel Building situated at Elias Angeles Street,
Naga City. The duration of the contract is from "July 1, 1987 until July 1, 1991" 2 or for a term of four (4)
years 3 with a stipulated monthly rental of Three Thousand Pesos (P3,000.00). 4 Upon the signing of the
contract, Colarina paid an amount of Forty Thousand Pesos (P40,000.00) to Abella which the latter
acknowledged by issuing the corresponding receipt. 5 Intending to use the premises for his pawnshop
business, Colarina introduced thereon certain improvements 6 for which he spent Sixty Eight Thousand
Pesos (P68,000.00). Colarina paid the monthly rental on a regular basis but discontinued payment from
November 1987 to April 1988. 7 Thereafter, Abella then made repeated demands to pay with notice of

303
extrajudicial rescission pursuant to paragraph thirteen (13) 8 of the lease contract which were all
unheeded. Thus, Abella took possession of the premises on May 1, 1988, with the assistance of the Naga
City PNP and some Barangay officials 9 who made an inventory 10 of all the items found therein.

On May 5, 1988, Colarina filed an action for "enforcement of contract of lease with preliminary
mandatory injunction and damages" 11 against Abella before the Regional Trial Court (RTC) of Naga.
After trial, the lower court among other ordered: (1) Abella to return the amount of Forty Thousand
Pesos (P40,000.00) less Eighteen Thousand Pesos (P18,00.00) representing unpaid rental from
November-December, 1987, to April, 1988 or for a period of six (6) months, or the sum of TWENTY TWO
THOUSAND Pesos (P22,000.00) to Colarina together with the destroyed and removed materials and
improvements introduced by him in the premises lease; and (2) the dismissal of the case for lack of
merit. 12

On appeal, the respondent Court of Appeals reversed the decision of the trial court and ordered
petitioner Abella: (1) to restore to Colarina the possession of the leased premises under the same terms
and conditions stated in the contract of lease; (2) to restore in the premises the improvements
introduced by Colarina which were demolished or removed by Abella or to pay the value thereof in the
sum of P68,000.00, with interest until fully paid; and (3) to pay the costs of the suit. 13 Aggrieved, Abella
filed this petition for review on certiorari faulting the respondent Court of Appeals with five assigned
errors which basically dwell on the following issues, to wit: (1) whether or not respondent Colarina
violated the contract of lease warranting its extrajudicial rescission; and (2) whether or not possession of
the premises may properly be restored to Colarina.

Anent the first issue. It is not disputed that petitioner received the sum of forty thousand pesos
(P40,000.00) from Colarina. 14 Petitioner and Colarina, however, are at loggerheads with respect to the
purpose of such payment. The trial court agreed with the petitioner that the amount represents only a
"goodwill money" given to the latter by Colarina in payment for the privilege to occupy the vacant
portion of Juanabel Building. 15 On the other hand, the respondent Court of Appeals sided with Colarina
and held that the same is an "advance deposit to answer for any rental which Colarina may fail to pay."
16 We uphold the findings of the respondent Court of Appeals.

Our careful review of the record reveals that Colarina did not violate the subject contract of lease with
respect to his rental obligation in view of his payment of forty thousand pesos. Reproduced hereunder
are the contents of the receipt acknowledging the acceptance by the petitioner of the said amount of
forty thousand pesos:jgc:chanrobles.com.ph

"RECEIVED FROM MR. CONRADO O. COLARINA THE SUM OF FORTY THOUSAND PESOS (P40,000.00) AS
ADVANCED DEPOSIT, TO ANSWER FOR ANY RENTAL WHICH MR. CONRADO COLARINA MAY FAIL TO PAY
DURING THE TERM OF THE LEASE AS PER CONTRACT, DATED 26TH DAY OF MAY, 1987 NOTARIZED
BEFORE NOTARY PUBLIC OSCAR VILLAMORA, DOC. NO. 398; PAGE NO. 80; BOOK NO. 9, SERIES OF 1987,
THIS 26TH DAY OF MAY, 1987, AT NAGA CITY. (Emphasis supplied.)

(Sgd.) MERCEDES N. ABELLA" 17

It is a cardinal rule in the interpretation of contracts that "if the terms of a contract are clear and leave
no doubt upon the intention of the contracting parties, the literal meaning of its stipulations shall
control." 18 The above-quoted receipt is clear and unequivocal that the disputed amount is an advance
deposit which will answer for any rental that Colarina may fail to pay. No amount of extrinsic aids are
required and no further extraneous sources are necessary in order to ascertain the parties’ intent,
determinable as it is, from the receipt itself. 19

We are thus, more convinced that the receipt expresses truly the parties’ intent on the purpose of said
payment as against the oral testimony of the petitioner that said amount is but only a "goodwill money."
Without any doubt, oral testimony as to a certain fact, depending as it does exclusively on human
memory, is not as reliable as written or documentary evidence. 20 "I would sooner trust the smallest slip
of paper for truth", said Judge Limpkin of Georgia, "than the strongest and most retentive memory ever
bestowed on mortal man." 21

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This is especially true in this case where such oral testimony is given by the petitioner himself, a party to
the case who has an interest in its outcome, and by Jesus Hipolito, a witness who claimed to have
received a commission from the petitioner. 22 In addition, the trial court itself has found that this
receipt is genuine when it brushed aside the petitioner’s claim that her signature appearing thereon was
a forgery. 23 The authenticity of the receipt further enhances its probative value as against the oral
testimony of the petitioner and of her witness.

We also find unmeritorious petitioner’s contention that the receipt failed to reflect her true intention
warranting a reformation thereof. Petitioner, being of age and a businesswoman, is presumed to have
acted with due care and to have signed and receipt in question with full knowledge of its contents and
import. 24 Equally unmeritorious is petitioner’s insistence that Colarina procured her signature "thru
fraud and any other deceitful means", 25 an issue which was never raised below. It is a settled rule that
an issue which was not threshed out below may not be raised for the first time on appeal. Moreover, no
iota of evidence was ever adduced at the trial to support her allegation of fraud. The reformation of said
receipt simply lacks basis.

Hence, we rule that respondent Colarina was not yet in arrears with his rental payment when petitioner
took possession of the leased premises on May 1, 1988. Accordingly, petitioner’s rescission of the
subject contract of lease was improper.

The second issue, however, has been rendered moot and academic by the time expiration of the term of
the subject contract of lease on July 1, 1991. 26 Colarina, therefore, has no more right to be restored to
the possession of the leased premises, said right being coterminous with the term of the contract.

WHEREFORE, the decision of the Court of Appeals is MODIFIED. Petitioner Mercedes N. Abella is hereby
ordered to:chanrob1es virtual 1aw library

1. return to private respondent Conrado Colarina the amount of Forty Thousand Pesos (P40,000.00) less
Eighteen Thousand Pesos (P18,000.00) (unpaid rental from November, 1987 to April, 1988 or for a
period of six (6) months), or the sum of TWENTY TWO THOUSAND Pesos (P22,00.00);

2. pay private respondent Colarina the sum of Sixty Eight Thousand Pesos (P68,000.00), representing the
value of the improvements demolished, with legal interest reckoned from May 1, 1988, the date when
petitioner took possession of the premises, until fully paid.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

G.R. No. 84464 June 21, 1991

SPOUSES JAIME AND TEODORA VILLANUEVA, petitioners,

vs.
THE HONORABLE COURT OF APPEALS and CATALINA I. SANCHEZ, respondents.

Franco L. Loyola for petitioners.

CRUZ, J.:

The Regional Trial Court of Cavite dismissed a complaint for the annulment of a deed of sale, holding
that it was not spurious. It was reversed by the Court of Appeals, which found that the vendor's
signature on the questioned document had indeed been forged. The petitioners are now before us and
urge that the decision of the trial court be reinstated.

305
In her complaint below, herein private respondent Catalina Sanchez, claiming to be the widow of
Roberto Sanchez, averred that her husband was the owner of a 275 sq. meter parcel of land located at
Rosario, Cavite, which was registered without her knowledge in the name of the herein petitioners on
the strength of an alleged deed of sale executed in their favor by her late husband on February 7, 1968.
Involving the report of a handwriting expert from the Philippine Constabulary Criminal Investigation
Service, who found that the signature on the document was written by another person, she prayed that
the deed of sale be annulled, that the registration of the lot in the name of the petitioners be cancelled,
and that the lot be reconveyed to her.1

In their answer, the petitioners questioned the personality of the private respondent to file the
complaint, contending that the late Roberto Sanchez was never married but had a common-law wife by
whom he had two children. On the merits, they claimed that Roberto Sanchez had deeded over the lot
to them in 1968 for the sum of P500.00 in partial settlement of a judgment they had obtained against
him. They had sued him after he had failed to pay a P1,300.00 loan they had secured for him and which
they had been forced to settle themselves to prevent foreclosure of the mortgage on their property.2

On the petitioner's motion, the trial court required the examination of the deed of sale by the National
Bureau of Investigation to determine if it was a forgery. Trial proceeded in due time, with the
presentation by the parties of their testimonial and documentary evidence. On June 25, 1986, Judge
Alejandro C. Silapan rendered judgment in favor of the petitioners.

In his decision,3 the trial judge rejected the testimony of the handwriting experts from the PC and the
NBI, who had both testified that the standard signature of the late Roberto Sanchez and the one written
on the alleged deed of sale "were written by two different people." He cited Go Fay v. Bank of the
Philippine Islands4 in support of his action. Explaining the supposed differences between the signatures,
he said that Roberto Sanchez was "under serious emotional stress and intensely angry" when he
reluctantly signed the document after he had lost the case to them, "with the added fact that they only
wanted to accept his lot for P500.00 and not for the settlement of the entire obligation of P1,300.00." At
that, he said there were really no fundamental differences between the signatures compared. Moreover,
the signatures examined were from 1970 to 1982 and did not include those written by Roberto Sanchez
in 1968.

The decision also noted that Roberto Sanchez did not take any step to annul the deed of sale although
he had knowledge thereof as early as 1968. He thus allowed his action to prescribe under Article 1431 of
the Civil Code. As for the contract of a marriage submitted by the private respondent, this should also be
rejected because although the document was dated September 21, 1964, the Torrens certificate issued
to Roberto Sanchez over the subject land on August 25, 1965, described his civil status as "single." It was
also doubtful if she could bring the action for reconveyance alone, even assuming she was the surviving
spouse of Roberto Sanchez, considering that he left illegitimate children and collateral relatives who
were also entitled to share in his estate.

As earlier stated, the decision was reversed by the Court of Appeals,5 which held that the trial court did
err, as contended by the appellant, in holding that the deed of sale was not spurious; that the action to
annul it had already prescribed; that Catalina Sanchez was not the widow of Roberto Sanchez; and that
she had no capacity to institute the complaint.

Before us now, the petitioners fault the respondent court for: a) upholding the testimony of the expert
witnesses against the findings of fact of the trial court; b) annulling the deed of sale; c) declaring that the
action to annul the deed of sale had not yet prescribed; d) not declaring the private respondent guilty of
estoppel; and e) not sustaining the decision of the trial court.

We see no reason to disturb the judgment of the Court of Appeals. It is consonant with the evidence of
record and the applicable law and jurisprudence.

The Court notes at the outset that Catalina Sanchez has proved her status as the widow of Roberto
Sanchez with her submission of the marriage contract denominated as Exhibit "A."6 That evidence
rendered unnecessary the presumption that "a man and a woman deporting themselves as husband and
wife have entered into a lawful contract of marriage" and may also explain why Roberto Sanchez could

306
not marry the woman by whom he supposedly had two illegitimate children, assuming these persons did
exist. It is strange that the trial court should reject Exhibit "A" in favor of the Transfer Certificate of Title
describing Roberto Sanchez as "single,"7 disregarding the elementary principle that the best
documentary evidence of a marriage is the marriage contract itself. A Torrens certificate is the best
evidence of ownership of registered land, not of the civil status of the owner.

As the surviving spouse of Roberto Sanchez, the private respondent could validly file the complaint for
the recovery of her late husband's property, without prejudice to the succession rights of his other heirs.
Parenthetically, (and curiously), although the supposed common-law wife and her illegitimate children
were never presented at the trial, their existence was readily accepted by the trial court on the basis
alone of the petitioner's unsupported statements.

Coming now to the questioned signature, we find it significant that the examination by the NBI was
requested by the petitioners themselves but in the end it was the private respondent who presented the
NBI handwriting expert as her own witness.8 The explanation is obvious. The petitioners hoped to refute
the findings of the PC handwriting expert with the findings of the NBI handwriting expert, but as it
turned out the findings of the two witnesses coincided. Both PC Examiner Corazon Salvador and NBI
Examiner Zenaida J. Torres expressed the informed view that the signature on the deed of sale was not
written by Roberto Sanchez.9

They did not conjure this conclusion out of thin air but supported it with knowledgeable testimony
extensively given on direct and cross-examination on the various characteristics and differences of the
signatures they had examined and compared.10 The trial judge said the testimony of PC Examiner
Salvador was not reliable because her examination of the document was "done under circumstance not
so trustworthy before the action was instituted." But he did not consider the fact that her findings were
corroborated by NBI Examiner Torres, who conducted her own examination at the instance of the
petitioners themselves and after the action was instituted. It is worth noting that the competence of the
two expert witnesses was never assailed by the petitioners nor was it questioned by the trial judge. The
petitioners also did not present their own handwriting expert to refute the findings of the government
handwriting experts.

The Court has itself examined the signatures of Roberto Sanchez in the several instruments among the
records of this case, including those dating back to before 196811 and is inclined to accept the findings of
the handwriting experts. The case invoked by the petitioners is not applicable because the differences in
the signatures compared in the case at bar were, as the trial judge found, caused not by time but by the
tension gripping Roberto Sanchez when he signed the deed of sale.

Incidentally, the petitioners have not sufficiently established the reason for such tension, which appears
to be a mere conjecture of the trial judge.1avvphi1 No proof was submitted about their filing of the
complaint against Roberto Sanchez. Petitioner Jaime Villanueva himself admitted under oath that he did
not read the decision in the case nor did he ask his lawyer how much had been awarded against the
defendant.12 Nobody testified about Roberto's state of mind when he allegedly signed the document,
and in Manila at that although the persons were residing in Cavite. Even the witnesses to the Bilihan
were not presented nor was any explanation for their absence offered.

The explanation given by the petitioners for their delay in registering the deed of sale is not convincing.
That delay lasted for all of thirteen years. The petitioners suggest they are simple peasants and did not
appreciate the need for the immediate transfer of the property in their name. They also say that they
forgot. The evidence shows, however, that they understood the need for registering their property for
purposes of using it as collateral in case they wanted to borrow money. It would appear that they
thought of simulating the sale registering the subject lot when their own lands were insufficient to
secure a P100,000.00 loan their daughter wanted to borrow.

Concerning the question of prescription, we find that the applicable rule is not Article 1391 of the Civil
Code but Article 1410. Article 1391 provides that the action for annulment of a contract prescribes in
four years in cases where the vice consists of intimidation, violence, undue influence, mistake, fraud or
lack capacity. The deed of sale in question does not suffer from any of these defects. The supposed
vendee's signature having been proved to be a forgery, the instrument is totally void or inexistent as

307
"absolutely simulated or fictitious" under Article 1409 of the Civil Code. According to Article 1410, "the
action or defense for the declaration of the inexistence of a contract does not prescribe."

Finally, petitioners invoke Article 1431 of the Civil Code and contend that the respondent court erred in
not declaring the private respondent and her late husband estopped from questioning the deed of sale
until after fourteen years from its execution. The inference that Roberto Sanchez and the private
respondent knew about the instrument from that date has not been proved by the evidence of record.
Moreover, we fail to see the applicability of Article 1431, which provides that "through estoppel an
admission or representation is rendered conclusive upon the person making it and cannot be denied or
disproved as against the person relying thereon." Neither the private respondent nor her late husband
has made any admission or representation to the petitioners regarding the subject land that they are
supposed to have relied upon.

Our own finding is that the petitioners have not proved the validity and authenticity of the deed of sale
or even the circumstances that supposedly led to its execution by the late Roberto Sanchez. On the
contrary, we are convinced from the testimonies of the handwriting experts that his signature had been
forged on the questioned document and that he had not conveyed the subject land to the petitioners.
The deed of sale being a forgery, it was totally void or inexistent and so could be challenged at any time,
the action for its nullification being imprescriptible. The private respondent, as the widow of Roberto
Sanchez, has the capacity to sue for the recovery of the land in question and is not estopped from doing
so.

WHEREFORE, the petition is DENIED and the challenged decision is AFFIRMED, with costs against the
petitioners.

SO ORDERED.

Narvasa, Griño-Aquino and Medialdea, JJ., concur.

Gancayco, J., is on leave.

G.R. Nos. 148063-64 June 17, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MAXIMO IBARRIENTOS y PERICO, appellant.

DECISION

QUISUMBING, J.:

For automatic review is the joint judgment1 dated January 15, 2001 of the Regional Trial Court of Pili,
Camarines Sur, Branch 31, in Criminal Case Nos. P-2695 and P-2696. The RTC convicted appellant
Maximo Ibarrientos,2 of two counts of incestuous rape. In each case, he was sentenced to death and
was ordered to pay ₱75,000 as indemnity, ₱50,000 moral damages, ₱50,000 exemplary damages, and
the costs.

The information3 in Criminal Case No. P-2695 reads:

That on or about August, 1996 in Barangay Sagurong, Pili, Camarines Sur, Philippines within the
jurisdiction of the Honorable Court, the said accused who is the Uncle of the victim, LORILIE
a.k.a. LORELIE I. BRILLO, then an eight (8) years (sic) old minor while in their house, did then and
there, with lewd design willfully, unlawfully and feloniously lie and succeeded in having carnal
knowledge of said Lorelie I. Brillo, who afterwards reported the incident to her Aunt, Imelda
Ibarrientos, the wife of the accused, to her damage and prejudice.

ACTS CONTRARY TO LAW.

The information4 in Criminal Case No. P-2696 reads:

308
 That on or about 7:00 o’clock in the morning of February 11, 1998, in Barangay Sagurong,
Municipality of Pili, Camarines Sur, Philippines and within the jurisdiction of this court, the
above-named accused, being the father of and having parental authority, influence and moral
ascendancy over victim JOAN IBARRIENTOS, his 7 year old daughter, while the latter was sick
and sleeping in their bedroom, did then and there, with lewd design, willfully, unlawfully and
feloniously lie on top of her and succeeded in having carnal knowledge of her which she
reported immediately to her mother, Imelda, to her damage and prejudice.

ACTS CONTRARY TO LAW.

When arraigned, appellant pleaded not guilty to both charges.5 Trial promptly ensued thereafter.

The prosecution presented six witnesses.

The first witness, LORELIE6 I. BRILLO, testified that the appellant Maximo Ibarrientos is her maternal
uncle.7 She tearfully recounted that on August 19, 1996 at around 8 a.m., she was playing with the
appellant’s children outside his home8 in Sagurong, Pili, Camarines Sur. Appellant beckoned her, "Be,
madya." ("Be, come here.").9 He handed a twenty-peso bill to his children, and ordered all of them to go
buy cigarettes10 in a store located far from the house.11

Thereafter, he told Lorelie to go inside the bedroom,12 to lie down, and remove her shorts and
underwear.13 Appellant undressed himself, lay on top of her, and inserted his penis into her
vagina.14 Lorelie testified that the penetration caused her pain.15 When he withdrew, she saw blood
come out of her private part which she wiped.16 His lust satisfied, he told her to get out of the room. She
said she was eight years old at the time of the incident.

According to Lorelie, her Aunt Imelda, who is the appellant’s wife, soon arrived from the fields. Imelda
saw Lorelie crying, and asked what was wrong. Lorelie did not answer.17 But after several days had
passed,18 Lorelie related her ordeal to Imelda. Lorelie testified that this incident was not the first time
that appellant raped her. She said she kept quiet because appellant warned her that if she told anyone
what happened to her, he would bury her alive.19

The other private complainant, JOAN IBARRIENTOS, testified that appellant Maximo Ibarrientos is her
father. According to her testimony, he raped her on February 11, 1998, at around 7 a.m. That day she
was absent from school due to a fever. Her mother left her with her paternal grandmother20 who lived
thirty meters away from them.21 While she was at her grandmother’s place, appellant called her to come
home. When she reached home, appellant whipped her for unknown reasons.22 She then went to the
bedroom and slept on the floormat next to her younger brother, Joseph,23 who was asleep.24

But Joan said she was roused from her sleep by appellant. He was sitting on the floor with his legs
outstretched, naked from the waist down.25 He undressed her and made her sit on his lap, facing him.
And, according to her testimony, he inserted his penis into her vagina. It caused her much pain26 and
made her scream.

Joan said that during this time, Joseph was sleeping.27 But her scream was loud enough for her older
brother, Jonnie, who was playing outside the house, to hear. Jonnie immediately rushed into the
bedroom. However, according to Joan, he could do nothing except look, because appellant was armed
with a balisong (knife).28

When he was finished with her, Joan said, appellant threatened her and Jonnie to keep quiet otherwise
he would kill their mother.29 Appellant immediately left. Meanwhile, Joan saw a white sticky substance
and some blood in her vagina. With a yamit (piece of cloth), she wiped the substances off her private
part.30

Despite appellant’s warning, however, Joan told her mother of her defilement. She showed the yamit to
her mother. As soon as he arrived home, her mother confronted appellant and they quarreled. Joan and
her mother left for Cadlan, where Joan stayed with her maternal grandmother.31 She has transferred to
a new school and had not returned to live in Sagurong since the incident.32

309
IMELDA F. IBARRIENTOS testified that she is legally married to appellant,33 and that Joan is her daughter,
while Lorelie is her niece. Imelda explained that when she first learned about what happened to Lorelie,
she told appellant’s mother, Eugenia T. Ibarrientos. However, Eugenia even chastised her for believing
the tales of the children. She was told not to meddle.34 Thus, she kept silent until she learned of her own
daughter’s rape two years later.35

Imelda recalled that Joan told her about the incident the very afternoon when it occurred. Enraged, she
confronted her husband as soon as he arrived. She cried, "You animal, why did you do this to your
daughter?" She remembered he did not mind her, and even increased the volume of the television set
he was watching.

Imelda testified that the day after the incident, she brought both Joan and Lorelie to the Department of
Social Welfare and Development36 where they related the incident to Rosa Bona, the social worker on
duty.37 In her interview, Imelda admitted that it was only on March 11, 1998, a month after Joan was
defiled and over one and a half years after Lorelie was raped, that she sought the assistance of the
National Bureau of Investigation (NBI), and it was only then that she had the girls examined by a
doctor.38

Prosecution witness ROSA C. BONA testified that she is a social worker of the DSWD assigned in Pili,
Camarines Sur.39 She recalled that on March 12, 1998, Imelda Ibarrientos came to their office to
complain about the appellant’s rape of Joan and Lorelie. She interviewed Joan, Lorelie and Imelda, and
afterwards accompanied them to the NBI for investigation, documentation, and medical
examination.40 Afterwards, she made social case study reports41 on her findings which the prosecution
formally offered as part of the evidence.42

For the defense, five witnesses were presented.

Appellant MAXIMO IBARRIENTOS, denied the charges against him, claiming an alibi. According to
appellant, on the day that he alleged raped Lorelie, he was actually at the Camarines Sur State
Agricultural College at San Jose, Pili, which is 500 meters away. He said he was engaged in tilling the land
of a certain Aniano Remiter.43 Appellant added that his work required him to be at the site almost
everyday before 7 a.m. to around 5 p.m.44 Aside from that he also worked on his parents’ farm.45 He
claimed he could not have raped Lorelie, considering his work schedule. According to him, his niece
accused him because of the instigation of his wife, Imelda, who was at odds with his parents who
believed she was having an affair with another man.46

Appellant also denied raping his daughter, Joan. He said he was not at his parents’ house on February 11,
1998. He recalled that he left home early to get skates and an engine to transport the electric posts
needed in their area. The work lasted the whole day from around 6 a.m. until around 5 p.m. He
remembered he saw his daughter for the first time that day, when he reached home. He repeated that it
was his wife who plotted to charge him with rape of his daughter.

Witness ANIANO F. REMITER corroborated the story of appellant that appellant had been working in his
farm since 1975 to August 1996. However, on cross-examination, he admitted that the farm was located
only some 500 meters away from the scene of the alleged rape and that the appellant worked in his
farm for only one week in August of 1996.47

Another witness for the defense, EUGENIA P. IBARRIENTOS, testified that she is appellant’s
mother,48 and that Joan and Lorelie are her granddaughters. She claimed that the charges against
appellant are false. She added that the only reason her daughter-in-law charged the appellant was to
continue her illicit relations with another man.49

Eugenia said that Joan stayed in her house on the day of the alleged rape incident from 6 a.m. to 5 p.m.
to nurse her fever. She said that she left Joan in the house at 2 p.m. but when she returned at 5 p.m.,
Joan had already left.50 She corroborated appellant’s story and said that he dropped by at 6 a.m. but left
immediately to go with his father, Maximo Sr., to get the electric posts.51 She claimed her son did not
return to the house that day. Eugenia concluded that Lorelie’s complaint, like Joan’s, was also untrue.52

310
Witness VIRGINIA S. SAÑO testified that on February 11, 1998, the appellant dropped by her house,
which is approximately one kilometer away from his home,53 to get some skates for transporting electric
posts. On direct examination she said that the appellant dropped by her house at around 6
a.m.,54 but on cross and re-direct examination she clarified he picked up the skates at around 8 a.m.55

The fifth witness for the defense, DOLORES B. BOLO, an aunt of the appellant,56 corroborated Eugenia’s
testimony that Joan’s complaint was false. She stated that on the day Joan claimed to have been raped,
she was with Joan in Eugenia’s house and she stayed from early in the morning until around 4:30
p.m.57 She never took her sight off Joan as she observed her play. She noticed she was a bit weak due to
fever.58

Dr. Wilson C. Moll Lee, the medico-legal officer of the NBI, medically examined both private
complainants. His report on Lorelie disclosed the following:

GENITAL EXAMINATION:

Pubic hair, no growth. Labia majora and minora, coaptated. Fourchette, tense. Vestibular
mucosa, pinkish. Hymen, short, thin, intact. Hymenal orifice, measures 1.5 cm in diameter.
Vaginal walls and Rugosities, cannot be reached by the examining finger.

CONCLUSIONS:

1. No evident sign of extragenital physical injury noted on the body of the subject at the
time of examination.

2. Hymen, intact, and its orifice small (1.5 cm in diameter) as to preclude complete
penetration by an average-sized, adult, Filipino male organ in full erection without
producing any genital injury.59

His report on Joan revealed the following:

GENITAL EXAMINATION:

Pubic hair, no growth. Labia majora and minora, coaptated. Fourchette, tense. Vestibular
mucosa, pinkish. Hymen, short, thin, intact. Hymenal orifice, measure 1.0 cm in diameter.
Vaginal walls and Rugosities, cannot be reached by the examining finger.

CONCLUSIONS:

1. No evident sign of extragenital physical injury noted on the body of the subject at the
time of examination.

2. Hymen, intact and its orifice small (1.0 cm in diameter) as to preclude complete
penetration by an average-sized, adult, Filipino male organ in full erection without
producing any genital injury.60

Dr. Lee testified, however, that it was possible there had been no complete penetration in these cases.
While the orifice of both victims were 1.0 and 1.5 cm. in diameter, the normal size of an adult Filipino
male’s organ was 2.5 cm. in diameter. Thus, there might have been penetration of the labia and
pudendum, but not the hymen, as the reports stated that the victims’ hymens were intact. He
concluded that whatever external injuries and bruises the victims may have sustained would have
healed after a month from the time of the incident.61

The trial court found that the appellant was guilty beyond reasonable doubt on both counts of rape, and
sentenced him to death. Its decision in its decretal portion reads:

WHEREFORE, in the light of the foregoing, joint judgment in these two (2) cases is hereby
rendered as follows:

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 1. In Criminal Case No. P-2695, finding the herein accused MAXIMO IBARRIENTOS a.k.a.
MAXIMO IBARRIENTOS, JR. guilty beyond reasonable doubt of the offense of RAPE
defined and penalized under Article 335 of the Revised Penal Code as amended by
Republic Act No. 7659 and hereby sentencing him to suffer the supreme penalty of
DEATH. As civil liability he is ordered to pay the offended party Lorilie/Lorelie I. Brillo,
the amount of Fifty Thousand (P50,000.00) Pesos as moral damages, another Fifty
Thousand (P50,000.00) Pesos as exemplary damages and the amount of Seventy-Five
Thousand (P75,000.00) Pesos, as rape indemnity or a total of ONE HUNDRED SEVENTY
FIVE THOUSAND (P175,000.00) PESOS, Philippine Currency;

2. In Criminal Case No. P-2696, again finding the same accused MAXIMO IBARRIENTOS
a.k.a. MAXIMO IBARRIENTOS, JR., guilty beyond reasonable doubt of the offense of
RAPE defined and penalized under Article 335 of the Revised Penal Code as amended by
Republic Act No. 7659 in relation to Republic Act No. 8353 and hereby sentencing him to
suffer another penalty of DEATH. As civil liability, he is also ordered to pay the offended
party Joan Ibarrientos c/o her mother Imelda F. Ibarrientos, the amounts of Fifty
Thousand (P50,000.00) Pesos, as moral damages, another Fifty Thousand (P50,000.00)
Pesos as exemplary damages and Seventy-Five Thousand (P75,000.00) Pesos as rape
indemnity or a total of ONE HUNDRED SEVENTY FIVE THOUSAND (P175,000.00) PESOS,
Philippine Currency and to pay the costs in both instances.

After promulgation, let the entire records of these two (2) cases be elevated
immediately to the Honorable Supreme Court for automatic review pursuant to Section
22, of Republic Act No. 7659, amending Article 47 of the Revised Penal Code.

SO ORDERED.62

Hence, this automatic review. Before us, appellant assigns the following errors allegedly committed by
the trial court:

THE COURT A-QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT
FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.

II

THE COURT A-QUO GRAVELY ERRED IN IMPOSING UPON THE ACCUSED-APPELLANT THE
SUPREME PENALTY OF DEATH WHEN THE AGE OF THE PRIVATE COMPLAINANTS AND THEIR
RELATIONSHIP WITH THE ACCUSED-APPELLANT, ALTHOUGH STATED IN THE INFORMATIONS,
WERE NOT ALLEGED WITH SPECIFICITY AS QUALIFYING CIRCUMSTANCES.63

Simply put, there are two issues for our resolution: (1) Whether appellant is guilty of rape in these two
cases beyond reasonable doubt. (2) Whether in each case the penalty of death has been properly
imposed.

On the first issue, appellant contends that no hard evidence was presented by the prosecution in order
to substantiate the offenses charged. Although appellant’s defense of denial and alibi may seem weak,
he asserts that the trial court should not precipitately disregard it for it could really be the truth.
According to him, his defense was corroborated by two disinterested witnesses, namely Aniano Remiter
and Virginia Saño. Hence, he insists the paramount duty of the prosecution is to prove appellant’s guilt
on the strength of its own evidence, and not just rely on the weakness of the evidence presented by the
defense.64

For appellee, the Office of the Solicitor General (OSG) counters that appellant’s defense of alibi lacks one
vital element, that it was physically impossible for him to be at the locus criminis at the time of the
alleged crime. Moreover, said the OSG, a bare denial cannot overcome the positive identification of
appellant by the victims that he was indeed their ravisher. The OSG concludes that ultimately the issue

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boils down to the credibility of the witnesses, which is best left to the judgment of the trial court for it
had the opportunity to observe the deportment of the witnesses on the stand.65

In these two cases of rape, the alleged victims were presented by the prosecution and subjected to
prolonged cross-examination by the defense. Both victims Lorelie and Joan, stood pat in their accusation
against appellant that he abused them sexually. Despite their tender age, the private complainants
withstood the grueling direct and cross-examinations with their credibility intact. Rape victims,
especially those who are of tender age, would not normally concoct a story of defloration, allow an
examination of their private parts and undergo a public trial, if they were not motivated solely by the
desire to have their ravishers apprehended and punished. As long as their testimony meets the test of
credibility, the accused-appellant may be convicted on that sole basis.66

Both victims cried when they testified. As found by the trial court:

And as they were relating their traumatic experiences in open Court, both of these minor-
victims were observed by the Court to be quite stressful, tense and hardly able to fully answer
and explain all the other consequential details, and every now and then breaking into tears as
they re-lived what to them must have been quite excruciating pain and anguish specially since
their violator was a close kin to Lorelie and the very own father of Joan who should have rightly
been their protector and shield from these reprehensible and horrendous offenses, not himself
the perpetrator.

In the case of Joan, she even graphically demonstrated how her father ravished her when she
re-enacted the deed showing how naked, she was made to sit on his likewise naked lap until he
was able to ejaculate.67

Private complainants’ testimonies deserve full faith and credence.68 In a similar case we held that "at
such tender years, they were still unfamiliar with and naïve in the ways of the world that it is quite
unbelievable that they could fabricate such a sordid story of personal defloration. Their testimonies
therefore cannot be disregarded."69

We note that the physical examination of the victims took place more than one month after the
incidents subject of the complaints. Although the victims bore no evident sign of extragenital injury, and
that the hymen of each victim was intact, Dr. Lee of the NBI did not rule out the commission of rape. As
the law now stands, penetration of the victim’s organ is not required for the commission of rape. A torn
hymen is not an essential element of rape, not even when the victim is an innocent child. Medical
research also shows negative findings after physical examination of the victims are of no significance,
since the hymen may not be torn despite repeated coitus. In fact, many cases of pregnancy have been
reported in women with unruptured hymens.70 In a previous case we also ruled that rape occurred
despite repeated intercourse over a period of four years, the complainant still retained an intact hymen
without signs of injury.71

We cannot accept appellant’s defense of alibi. In People v. Francisco,72 a case involving the sexual abuses
on a child victim by a relative, we did not give credence to the defense of denial and alibi interposed by
accused-appellant. We said that these defenses are inherently weak. It is elementary that for alibi to
prosper, the accused must not only prove his presence in another place at the time of the commission of
the offense, but he must also demonstrate that it would be physically impossible for him to be at
the locus criminis at the time of the commission of the crime.73

In Crim. Case No. P-2695, appellant himself admitted that the place where he was at the time of the
alleged rape of Lorelie was a short walking distance from the place where the offense was committed.
He testified that the distance between the two places would take around thirty minutes’ walk but
definitely would not take more than one hour.74 Moreover, appellant himself admitted during his
testimony that one witness for the defense, Virginia Saño, is his cousin,75 and therefore biased in his
favor.

The imputation of ill motive on the part of appellant’s wife, Imelda Ibarrientos, would not necessarily
detract from the weight of the victims’ testimonies. That Imelda had a lover, and she would like to get

313
rid of appellant by filing the charges against him, deserves scant consideration. From one viewpoint, the
minor victims would not fabricate a tale so heinous if only to please Imelda or to punish her husband.
Despite their tender ages, the private complainants would not expose themselves to public ridicule and
the ordeal of a trial just to please a mother or an aunt, as the case may be, if the victims were not bent
on pursuing a just and compelling cause.

From another perspective, we have previously held that no mother in her right mind would expose her
daughter to the trauma resulting from a court case unless she is truly motivated by a desire to penalize
the person responsible for her daughter’s defilement.76 It is unnatural for a mother to use her daughter
as an engine of malice, especially if it will subject her child to embarrassment and lifelong stigma. A
mother would not sacrifice the honor of her daughter to give vent to a grudge that would tarnish the
latter’s reputation forever.77 These principles are applicable in the present case, which involves not only
the daughter of Imelda Ibarrientos but her niece as well.

As to the second issue, the appellant asserts that the ages and relationships of the victims were stated in
the informations but were not alleged with specificity as qualifying circumstances. He invokes Sections 8
and 9, Rule 110 of the Revised Rules of Criminal Procedure78 and People v. Alba79 and People v.
Manlansing,80 to support his stance that the two circumstances cannot be treated as qualifying
circumstances but merely generic aggravating circumstances. The appellant submits that assuming he is
found to be the perpetrator of the felonies, he should be found guilty of two counts of simple rape, not
qualified rape.81

The OSG insists that the circumstances should be appreciated as qualifying circumstances. It cites People
v. Aquino,82 which explained how aggravating and qualifying circumstances should be alleged as
required under Sec. 8, Rule 110 of the Revised Rules of Criminal Procedure. Following Aquino, the
allegation of circumstances in the information need not be preceded by the word "qualified", since it is
sufficient that the circumstances be specified in the information to apprise the appellant of the charges
against him.83

We agree with the OSG. The Aquino case settled already the issue on the proper allegation of
circumstances. What properly informs the accused of the nature of the crime charged is the specific
allegation of the circumstances mentioned in the law that raise the crime to a higher category.

The new Rules on Criminal Procedure require the qualifying circumstances to be specifically alleged in
the information, in order to comply with the constitutional right of the accused to be properly informed
of the nature and cause of the accusation against him. The purpose is to allow the accused to prepare
fully for his defense to prevent surprises during the trial.84 This requirement is satisfied as long as the
circumstances are alleged in the information, even if these are not specified as aggravating or qualifying
circumstances.

In the present two cases of rape, however, the death penalty imposed on appellant is improper and
erroneous.

Article 266-B of the Revised Penal Code states that the death penalty shall be imposed when "the victim
is under eighteen years of age and the offender is a parent, ascendant, descendant, step-parent,
guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of
the parent of the victim."

This is a special qualifying circumstance which must be specifically alleged with certainty in the
information, otherwise the death penalty cannot be imposed. The allegation in the information of
Criminal Case No. P-2695, that the appellant is an uncle of the victim, is not specific enough to satisfy
the special qualifying circumstance of relationship. We have previously ruled, and now we reiterate, that
it is necessary to spell out in an Information for rape that the accused is a "relative within the third
degree of consanguinity or affinity" as stated in Article 266-B.85 Without such averment, the Information
in Criminal Case No. P-2695 falls short of the statutory requirement for the imposition of capital
punishment on the offender. Factual allegations in the information do not need to be referred to as
"qualifying circumstances", in order to appreciate them as such and raise the penalty. However, these
factual allegations must be specified completely, in order to fully inform the accused of the

314
circumstances which warrant the imposition of a higher penalty. Otherwise, such circumstances cannot
be appreciated to qualify the offense. Since the Information in Criminal Case No. P-2695 only states that
the appellant "is the Uncle of the victim", without stating that he is a "relative within the third degree of
consanguinity or affinity," the qualifying circumstance of relationship cannot be appreciated without
offending settled law and doctrine of this Court. As such the appellant can be held liable only for
statutory rape.

As for Criminal Case No. P-2696, we find the information is sufficient to inform the appellant of the
qualifying circumstances present in the offense. The information properly alleged that the victim is his
daughter. Moreover, it is a well-settled rule that a victim’s minority may become a qualifying
circumstance which could raise the penalty to death. But the victim’s age must be proved with equal
certainty and clearness as the crime itself. It must be established with certainty that the victim was a
minor at the time of the commission of the crime of incestuous rape as defined and penalized under
Republic Act No. 8353, amending Art. 266 of the Revised Penal Code as follows:

ART. 266-B.

...

The death penalty shall be imposed if the crime is committed with any of the following
aggravating/qualifying circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common law spouse of the parent of the victim.

...

Circumstances that qualify a crime and increase its penalty to death cannot be the subject of speculation.
The appellant cannot be condemned to suffer the extreme penalty of death on the basis of stipulations
or admissions. This strict rule is warranted by the gravity and irreversibility of capital punishment. Proof
of the age of the victim cannot consist merely of testimony. Neither can a stipulation of the parties with
respect to the victim’s age be considered sufficient proof of minority.86

The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.87 We stress that the severity of the death penalty, especially its
irreversible and final nature once carried out, makes the decision making process in capital offenses
aptly subject to nothing less than the most exacting rules of procedure and evidence.88

In the instant case, no authentic document was presented as evidence of the victim’s age other than a
poor photocopy of what is claimed to be Lorelie’s birth certificate. The prosecution failed to present an
original or certified true copy of the certificate of live birth. Neither was it shown that these were lost,
destroyed or unavailable at the time of trial. Thus, secondary evidence is inadmissible to prove the age
of the victim in Crim. Case No. P-2696. The testimonies tending to prove the victim’s age cannot be
accepted as adequate proof thereof.89

Much as we abhor child abuse, nevertheless, we are constrained to hold that capital punishment cannot
be imposed on appellant in these two cases. Even if we agree that the victims are indeed minors below
12 years old, at most, appellant is liable only for statutory rape in Crim. Case No. P-2696 as well as in
Crim. Case No. P-2695. As well understood, statutory rape is defined by law in Art. 266-A Revised Penal
Code, as follows:

"Rape is committed–(1) By a man who shall have carnal knowledge of a woman under any of the
following circumstances:

...

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 (d) When the offended party is under twelve (12) years of age or is demented, even though
none of the circumstances mentioned above be present."

Otherwise, there being no adequate proof regarding the age of the victims in each case, the offense
committed is only simple rape. Noteworthy, under Art. 266-B of the Revised Penal Code, rape – whether
simple or statutory – is punishable only by reclusion perpetua, and not death.

WHEREFORE, the assailed decision of the Regional Trial Court of Pili, Camarines Sur, Branch 31, in
Criminal Cases Nos. P-2695 and P-2696, is AFFIRMED with MODIFICATION. Appellant MAXIMO
IBARRIENTOS is found GUILTY of two counts of rape, and for each count he is hereby sentenced to suffer
the penalty of reclusion perpetua. He is also ORDERED to pay the victim in each case the amount of
₱50,000.00 as civil indemnity, ₱50,000.00 as moral damages, and ₱25,000.00 as exemplary damages.
Costs de oficio.

SO ORDERED.

Davide, Jr., Puno, Vitug, Panganiban, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-Martinez,

Corona, Carpio Morales, Callejo, Sr., Azcuna, and Tinga, JJ., concur.

G.R. No. 143125 June 10, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
DIOSDADO CORIAL y REQUIEZ, Appellant.

DECISION

VITUG, J.:

For automatic review is the decision of the Regional Trial Court of Pasay City, Branch 109,1 imposing the
death penalty on convicted appellant Diosdado Corial y Requiez for the crime of qualified rape,2 said to
have been committed, according to the indictment, against his own minor granddaughter Maricar Corial.

At his arraignment, appellant pleaded "not guilty" to the charge;3 trial ensued shortly thereafter.

The Case for the Prosecution. -

Maricar Corial was born to Marietta Corial, appellant’s daughter, but she did not come to know her
father (now said to be deceased). Maricar had two maternal sisters who lived with their mother and her
"stepfather" in Balagtas, Bulacan. Maricar lived with her grandparents, herein appellant and his wife
Carmelita, in Pasay City.

One afternoon in July 1998, Maricar and appellant were left alone in the house. She was wearing a
duster when her grandfather forced himself on her. He first inserted his penis into her private part, and
then into her mouth and, finally, into her anus. When her mother, Marietta, arrived for Christmas in
1998, Maricar revealed the sexual abuse she had suffered from her grandfather. Maricar went first to
the barangay hall where she lodged a complaint against appellant and then to the Philippine General
Hospital where Maricar was physically examined. Still later, they repaired to the Pasay City Police station
where Maricar executed a sworn statement (salaysay).

According to barangay captain Policarpio Tawat, Marietta and Maricar went to see him on the morning
of 29 December 1998 at the barangay hall to seek assistance about the sexual assault. Along with a
barangay kagawad, Tawat went to invite appellant to the barangay hall and then had a medical
examination conducted on Maricar. When the medical examination proved positive for rape, Tawat
turned appellant over to the Pasay City Police station.

The Provisional Medical Certificate,4 dated 29 December 1998, showed the following findings of Dr.
Mariella Sugue-Castillo; viz:

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"GENITAL EXAMINATION:

External genitalia: normal

Hymen: crescentic hymen, no discharge seen, (+) mound at 7 o’clock position, (+) attenuation of
posterior hymen

Anus: normal findings

"IMPRESSION

Disclosure of sexual abuse.

Genital finding of posterior hymen attenuation is suspicious for prior penetration injury"5

On the afternoon of 29 December 1998, SPO3 Milagros Carrasco was at the Women and Children Desk
of the Pasay City Police station when Barangay Captain Tawat, Marietta, young Maricar, and Marietta’s
father arrived. After hearing the story, SPO3 Carrasco contacted social worker Erlinda Aguila to assist her
in conducting the interview with Maricar. The child claimed that her maternal grandfather had sexually
abused her. When confronted by SPO3 Carrasco, appellant remarked in Tagalog that he was just having
a "taste" of the child (tinitikman niya lang).

The Case for the Defense. -

Testifying for her father, Nelly Corial stated that the 59-year-old appellant had six children, all of them
female, by his wife Carmelita. He was a mason and construction worker employed by D. M. Consunji
while her mother was a dressmaker. Her father was a responsible person with no vices. Her parents first
took custody of Maricar because the latter’s father, Francisco Amado and live-in partner of Marietta,
would often inflict physical harm upon the child. After Francisco’s death, Marietta resided in Balagtas,
Bulacan, with yet another live-in partner, Rene Malinao, who both for a while took Maricar into their
custody. Maricar was soon brought back to her grandparent’s residence in Pasay City because of the
maltreatment she had been getting from Malinao. According to Nelly, her parents loved Maricar,
provided for her needs, and had her take up schooling at the Pio del Pilar Elementary School. After the
case against appellant was filed, Marietta confided to Nelly her regrets (nagsisisi) for having filed the
case. Marietta became "mentally deranged" and would harm herself for no reason at all. She concluded
that Marietta’s complaint was fabricated (gawa-gawa lamang niya iyun). Menchu, another daughter of
appellant, also testified for him. Her residence in Pasay City was separated from appellant’s house only
by a wall. She confirmed that Maricar was brought to San Pedro, Laguna, at the instance of appellant
who had wanted the child to have a vacation there.

Appellant denied having raped Maricar. He took the child away from her parents because they were
unable to properly care for her. After Francisco’s death, he took custody of Marietta and her child but
only for four months when Marietta started to live with another partner in Bulacan. Marietta was a
good daughter and a good mother but she was mentally ill and hardheaded (suwail). Marietta instigated
the case against him because he had refused to allow her to live in their house in Pasay City. From
Monday to Saturday, he would leave the house at six o’clock in the morning and return from work at
seven o’clock in the evening. On Sundays, Nelly would always be at home.

The Assailed Decision. -

The trial court debunked the defense of denial interposed by appellant and the assertion that the rape
case was only trumped-up by his daughter Marietta. It instead gave credence to what it so described as
the "spontaneous and straightforward" testimony of Maricar Corial. The trial court adjudged:

"In view of all the foregoing, the Court opines that the prosecution has proven the guilt of the accused,
Diosdado Corial y Requiez for rape as defined and penalized under Art. 266-A and 266-B of RA 8353 as
amended, and the Court hereby sentences the accused, Diosdado Corial y Requiez to death and to

317
indemnify the complainant in the amount of P75,000.00 and moral and exemplary damages in the
amount of P50,000.00."6

Appellant, in this Court’s review of his case, would consider erroneous his conviction for there was no
opportunity for him and his granddaughter to be alone in their residence, particularly on Sundays when
all the members of the household stayed home, and for Maricar’s failure to make an outcry during the
alleged sexual assault that could have easily attracted the attention of close kins whose house was only
adjacent to theirs.

Quite often, this Court has held that rapists are not deterred from committing the odious act of sexual
abuse by the mere presence nearby of people or even family members. Rape is committed not
exclusively in seclusion;7 lust, it is said, respects neither time nor place. The trial court has valued
Maricar’s testimony as being "spontaneous and straightforward." Indeed, when a victim’s testimony is
straightforward and unflawed by any major inconsistency or contradiction, the same must be given full
faith and credit.8 Appellant capitalizes on the so-called disparity between the declaration of Maricar in
her testimony in court and her sworn statement. He quotes a portion of her salaysay; viz:

"06. T: Natatandaan mo ba kung kailan at kung saan nangyari ang mga ginawa na sinasabi ng lolo mo
sa iyo?

S: Opo, simula po ng Grade II ako. Tapos naulit po nuong July 1998 at nauulit po pag araw ng Linggo pag
wala ang lola ko at ang tita ko sa bahay namin. Kasi nagtratrabaho si Lolo ng Lunes hanggang Sabado.
Pero pag wala siyang pasok ay ginagalaw din niya ako. Sa bahay namin sa Dolores, Pasay.9

He then labels it as being inconsistent with her testimony on cross-examination; viz:

"Atty. Casas:

Now, it was in July 1998 which is finally the alleged (sic) contained in the information that you claimed
you have been sexually molested, is that correct?

"A: Yes, sir.

"Q: And you told the Court in your direct examination that it was the first time that the same was
committed?

"A: Yes, sir."10

Not only is her assailed statement - that before the July 1998 incident she has also been subjected to
sexual assault by appellant – inconsequential in a material point but it also does not necessarily take
away her credibility at the witness stand. It is acknowledged that affidavits, usually taken ex parte, are
often held unreliable for being incomplete and inaccurate.11

Maricar’s failure to shout during the sexual assault is not all that strange. Not every witness to or victim
of a crime can be supposed to always act in conformity with the usual expectations of everyone; 12 in fact,
there is no known and accepted standard therefor. Moreover, to attribute to her the sophistication of
an adult woman would be to brush aside the fact that Maricar is just a young girl. Even then, it would be
unreasonable to judge her actions on the traumatic experience by any norm of behavior that, if at all,
may be expected from mature persons.13

The Court is not persuaded by the claim of appellant that Marietta, the victim’s mother, has fabricated
the charge simply because appellant did not allow her to stay with him. It just is not a convincing tale. It
is difficult to believe that Marietta would send his own father to jail, even to the gallows, sacrifice the
honor and dignity of their family and subject her own child to untold humiliation and disgrace if she
were motivated by any desire other than to bring to justice the person responsible for defiling her
child.14

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Appellant’s claim that Marietta is deranged lacks unbiased evidentiary support. In any event, it hardly
has any bearing on the credibility of her own daughter. Nor would the failure of the prosecution to
present Marietta at the witness stand adversely affect the outcome of the case. The prosecution is not
bound to present any witness other than the victim herself, for as long as the testimony of the victim is
credible, natural, convincing and otherwise consistent with human nature and the course of things,15 it
may be the basis for a conviction. It is the prerogative of the prosecution, not much unlike that of the
defense, to determine which evidence to submit in support of its own case.16

Maricar, on direct examination, testified thusly:

"Q: In the information filed to (sic) this Honorable Court, stated that you are complaining for rape
perpetrated by your Lolo Diosdado Corial that happened in July 1998. Do you still recall the date in July
when this incident, the alleged incident happened?

"A: It was in July but I do not know or remember the date, sir.

"Q: But could you still recall if that was in the morning or lunch time or evening of July 1998?

"A: It was in the afternoon of July 1998.

"Q: And in what place where this incident happened regarding the complaint (sic) that you were sexually
molested by your grandfather Diosdado Corial?

"A: The incident happened at 164 Dolores Street, Pasay City.

"Q: Was it inside your house?

"A: Yes, sir.

"Q: You earlier stated that the alleged rape happened in the afternoon, sometime in July 1998 inside
your house at No. 164 Dolores Street, Pasay City. My question is, who were actually present inside your
house when the incident happened?

"A: My grandmother was there, but she left.

"Q: And who was left behind in the afternoon of July 1998 when the incident happened?

"A: I and my grandfather was (sic) left inside the house.

"Q: And what actually were you doing in that afternoon of July 1998 when you were inside your house?

"A: None, sir.

"Q: What were you wearing then?

"A: I was wearing a duster, sir.

"Q: And so was there any unusual incident that happened in the month of July 1998? When you were
left by your Lola inside your house and left with your Lolo?

"A: Yes, there was.

"Q: Would you kindly tell to this Honorable Court, what happened to you on that month of July 1998?

"A: I was raped by my grandfather, sir.

"Q: Will you further explain to this Honorable Court, how were you raped by your grandfather?

319
"A: He inserted his penis into my private part, sir.

"Q: And what did you feel when your grandfather inserted his penis inside your private part?

"A: I felt pain, sir.

"Fiscal Barrera:

Besides inserting his penis at your private part, what else did your Lolo do to you?

"A: He was requesting me to suck his penis.

"Q: And did he actually put his penis inside your mouth?

"A: Yes, sir.

"Q: And what happen(ed) after he inserted his penis inside your mouth?

"A: He requested me to suck it, sir.

"Q: And what else happened aside (from) inserting his penis at your private part, and putting his penis
inside your mouth sometime in the month of July 1998?

"A: He inserted his penis inside my anus.

"Q: What did you feel when he inserted his penis inside your anus in the month of July 1998?

"A: It was painful, sir.

"Q: What else happened besides inserting his penis inside your anus or "Puwet"?

"A: No more, sir.

"Q: And so after that, what did you do?

"A: When my mother arrived last Christmas, I told her what my grandfather did to me.

"Q: You mean that was last Christmas 1998?

"A: Yes, sir.

"Q: And so what actually did you tell your mother Marietta Corial?

"A: I told her that my grandfather put his penis inside my vagina.17

On cross examination, she recounted:

"Q: You specifically mentioned the word rape when you were asked any unusual incident that happened
on June 1998, is that correct?

"A: Yes, sir.

"Q: Who told you or how did you learn the word rape?

"A: Nobody told me, sir.

"Court:

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Pero alam mo ba ang meaning nang rape?

Alam mo ba ang ibig sabihin nang rape?

"A: Rape means `Pang gagahasa.’

"x x x x x x x x x

"Q: And because the penis of your Lolo was inserted inside your vagina, you felt pain?

"A: Yes, sir.

"Q: But you did not shout, is that correct?

"A: I was boxing him.

"x x x x x x x x x

"Atty. Casas:

You also mentioned that your Lolo raped you by placing his penis inside your mouth, is that correct?

"A: Yes, sir.

"Q: Definitely, you did not like that idea or actuation by your Lolo?

"A: Yes, sir.

"x x x x x x x x x

"Q: By the way, Maricar, do you love your Lolo and Lola?

"A: I love my grandmother.

"Q: How about your grandfather, do you love him?

"A: I don’t love him.

"Q: Why do you not love your grandfather?

"A: Because, he did something wrong to me."18

The trial court has found appellant guilty of having violated Sections 266-A and 266-B of the Revised
Penal Code, as amended by Republic Act No. 8353 (Anti-Rape Law of 1997),19 that read:

"Article 266-A. Rape; When And How Committed. – Rape is committed –

"1) By a man who shall have carnal knowledge of a woman under any of the following circumstances:

a) Through force, threat, or intimidation;

b) When the offended party is deprived of reason or otherwise unconscious;

c) By means of fraudulent machination or grave abuse of authority; and

d) When the offended party is under twelve (12) years of age or is demented, even though none
of the circumstances mentioned above be present.

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"2) By any person who, under any of the circumstances mentioned in paragraph 1 hereof, shall commit
an act of sexual assault by inserting his penis into another person’s mouth or anal orifice, or any
instrument or object, into the genital or anal orifice of another person.

"Article 266-B. Penalties. – Rape under paragraph 1 of the next preceding article shall be punished by
reclusion perpetua.

"x x x x x x x x x

"The death penalty shall also be imposed if the crime of rape is committed with any of the following
aggravating/qualifying circumstances:

"1) When the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-
parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law
spouse of the parent of the victim."

The death penalty for the crime herein charged may be imposed only when the twin qualifying
circumstances of relationship between the appellant and the victim and the latter’s age are indubitably
proven; otherwise, the appellant can only be held liable for the crime of simple rape penalized by
reclusion perpetua.20 The relationship between appellant and the victim has been adequately
established. The prosecution evidence has shown that appellant is the grandfather of the victim,21 a fact
that appellant himself has likewise maintained.22 The same cannot, however, be said with respect to the
age of the victim.1âwphi1

In People vs. Pruna,23 the Court, after noting the divergent rulings on proof of age of the victim in rape
cases, has set out certain guidelines in appreciating age, either as an element of the crime or as a
qualifying circumstance. The primary evidence of age of the victim is her birth certificate. Age may also
be proven by such authentic documents as a baptismal certificate and school records only in the
absence of a birth certificate. If the aforesaid documents are shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such
as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient but only under the following circumstances: a) If the victim is alleged to be
below 3 years of age and what is sought to be proved is that she is less than 7 years old; b) If the victim
is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;
c) If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

In the instant case, the prosecution did not offer the victim’s certificate of live birth or any similar
authentic document in evidence. The trial court, in convicting the appellant of the crime of rape and
imposing upon him the death penalty even in the absence of the necessary documents, relied on the
sworn statement of Marietta Corial, the mother of the victim, attesting to the fact that her daughter
Maricar Corial was born on 26 May 1990.24 Marietta Corial, however, did not testify in court. Such sworn
statement was thus inadmissible in evidence under the hearsay rule,25 and unless the affiant had been
placed on the witness stand, the admission of the mere affidavit and the conviction of appellant on the
basis thereof would violate the right of the accused to meet witness face to face.26

In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother
or relatives concerning the victim’s age under the circumstances heretofore mentioned, the
complainant’s sole testimony can suffice provided that it is expressly and clearly admitted by the
accused; to repeat, "provided that it is expressly and clearly admitted by the accused."27 There is no such
declaration and admission on the part of appellant.

This Court cannot be overly strict as regards the proof of age of the victim particularly when, such as
under Article 266-B of the Revised Penal Code, as amended by Rep. Act No. 8353, age is an element of
the crime that, if shown, would make it punishable by death. As so frequently expressed by the Court,
the severity of the death penalty, which by its nature is irreversible when carried out, should behoove

322
courts to apply the most exacting rules of procedure and evidence. The prosecution is not excused from
discharging its burden even when the defense lets itself loose about it.

The trial court ordered appellant to "indemnify the complainant in the amount of P75,000.00 and moral
and exemplary damages in the amount of P50,000.00." The award must be corrected. In consonance
with prevailing jurisprudence, appellant must be made to pay P50,000.00 civil indemnity, an award that
is outrightly due the victim of rape by the mere fact of its commission, P50,000.00 moral damages which
is deemed concomitant with and which necessarily results from this odious criminal offense, and
P25,000.00 exemplary damages which are awarded under Article 2230 of the Civil Code when the crime
is committed with one or more aggravating circumstances28 such as relationship between the offender
and the victim.29

WHEREFORE, the judgment of the court a quo finding appellant Diosdado Corial y Requiez guilty of rape
is AFFIRMED with MODIFICATION in that he is hereby only adjudged guilty of simple, not qualified, rape
and sentenced to suffer, instead of the death penalty, the penalty of reclusion perpetua. The award of
damages by the trial court is likewise modified by hereby ordering appellant to indemnify the victim the
amounts of P50,000.00 civil indemnity, P50,000.00 moral damages and P25,000.00 exemplary damages.
Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., and Azcuna, JJ., concur.

G.R. No. 126223 November 15, 2000

PHILIPPINE AMERICAN LIFE INSURANCE COMPANY, petitioner,

vs.
COURT OF APPEALS and ELIZA PULIDO, respondents.

DECISION

GONZAGA-REYES, J.:

This petition for review on certiorari seeks to reverse the Decision of the Special Second Division of the
Court of Appeals dated August 27, 1996,1 which affirmed in toto the Decision of the Regional Trial Court
of Baguio City,2 allowing herein private respondent, the beneficiary under a life insurance policy issued
by petitioner, to recover the face amount of the said policy.

Briefly, the antecedent facts are:

On January 9, 1989, petitioner received from one Florence Pulido an application for life insurance, dated
December 16, 1988, in the amount of P100,000.00 which designated her sister, herein private
respondent, as its principal beneficiary. Because the insurance applied for was non-medical, petitioner
did not require a medical examination and issued a policy on the sole basis of the application on
February 11, 1989. On April 1992, petitioner received private respondent’s claim, which declared that
the insured, Florence Pulido, died of acute pneumonia on September 10, 1991.

Petitioner withheld payment on the ground that the policy claimed under was void from the start for
having been procured in fraud. It is petitioner’s contention that even before they received private
respondent’s claim for death benefits, their investigation concerning the subject policy yielded the
information that the insured, Florence Pulido, died in 1988, before the application for insurance on her
life was made.3 While this was communicated to private respondent in a letter dated April 29,
1992,4 private respondent had already filed her claim earlier that month.5 In another letter dated July 27,
1992, however, petitioner confirmed to private respondent receipt of the claim papers and assured her
that her case was "being given preferential attention and prompt action".6

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Following the filing by private respondent of her claim, petitioner caused another investigation
respecting the subject policy. Pursuant to the findings of this second investigation, petitioner stood by
its initial decision to treat the policy as void and not to honor the claim. On November 9, 1992, private
respondent enlisted the services of counsel in reiterating her claim for death benefits.7 Petitioner still
refused to make payment and thus, this action.

The complaint before the lower court sought payment of the face amount of the policy, equivalent to
P100,000.00, with interest at 24% per annum for undue delay in payment pursuant to Section 244 of the
Insurance Code, and for P5,000.00 as "consequential damages".

For its part, petitioner interposed that it was legally justified in denying plaintiff’s claim, the results of its
investigations having indicated that the insured was already dead at the time the policy was applied for.
It also counterclaimed for attorney’s fees.

To substantiate its defense, petitioner submitted copies of the reports of its investigators. The first
report,8 prepared by one Dr. Benedicto Briones, was dated April 1, 1992, and had attached to it a
questionnaire, responded to by one Ramon Piganto,9 who represented to be the brother-in-law of the
insured and the barangay chairman of Cardiz, Bagulin, La Union. To the question "Where does [Florence
Pulido] reside now?", Piganto had replied that Florence Pulido used to live in Cardiz, but was dead since
1988. Piganto’s statement was signed by him, and witnessed by his wife, Nenita Piganto. This report was
petitioner’s basis for treating the disputed policy as void since April 1992, even before receipt of private
respondent’s claim. The next two reports pertained to the investigation petitioner commenced after
private respondent filed her claim. One report, dated October 2, 1992, was submitted by Ferdinand
Tanchoco, another of petitioner’s investigators, and dealt with Tanchoco’s interview with a certain
Remylyn Piganto, a 14-year old high school student who was the niece of the insured and daughter of
Ramon Piganto. Remylyn purportedly told Tanchoco that her auntie Florence Pulido died young a long
time ago, before Remylyn was even born.10 Remylyn, however, did not execute any written statement.
The other report, dated December 28, 1992,11 was prepared by Dr. Benedicto Briones, who also
prepared the first report dated April 1, 1992. This last report intimated the claim of some neighbors of
the Pulido family that Florence Pulido died in a car accident in 1985. These persons, however, refused to
give their names or execute statements on the matter, as they were reportedly afraid of Ramon Piganto,
the insured’s brother-in-law.12

During the trial, plaintiff-private respondent testified that the insured died of acute pneumonia on
September 10, 1991 in Barangay Cardiz, Bagulin, La Union and was buried two days after within their
own yard. Plaintiff next presented as a witness Dr. Irineo Gutierrez, who testified that he attended to
the ailing Florence Pulido on September 8, and 9, 1991 at their house in Cardiz. Dr. Gutierrez then
authenticated a Certificate of Death,13 issued on September 12, 1991 by the Local Civil Registrar of
Bagulin, La Union, which bore his signature in his capacity as then Municipal Health Officer of Bagulin, La
Union. The death certificate declared that Florence Pulido died on September 10, 1991 at around 4:00 in
the afternoon.

A neighbor of the Pulidos, Francisco Villano, also testified in support of plaintiff that the insured died of
illness on September 1991. Villano claimed that he was at the Pulido’s house when Dr. Gutierrez
attended to the insured. He also said that he went to the wake of Florence Pulido and was able to view
her remains.14

Meanwhile, defendant-petitioner presented Pablito Angalot, petitioner’s Life Claims Manager, who said
that even before the filing of private respondent’s claim, petitioner’s Claims Committee had already
declared the disputed policy null and void in light of the investigative report dated April 1, 1992.
However, petitioner was unable to present Dr. Benedicto Briones, the investigator who prepared the
April 1, 1992 report. Also, when it presented Ramon Piganto, whose statement attached to Dr. Briones’s
report dated April 1, 1992 was the basis for petitioner’s treating the subject policy as void, Piganto
denied giving the statement that Florence Pulido died in 1988, and said that he was made to sign a blank
coupon bond.15

Ferdinand Tanchoco, petitioner’s other investigator, identified his investigative report16 and recounted
the results of his investigation focusing particularly on the interview with Remylyn Piganto. Tanchoco

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also reported that private respondent’s information on the insured’s death, as declared in her claim
certificate, tallied with the entries of the death certificate as found in the records of the Local Civil
Register of Bagulin, La Union.

The dispositive portion of the decision of the Regional Trial Court, which was affirmed in toto by the
Court of Appeals, states:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendant, ordering
the latter to pay the former the amount of P100,000.00, representing the face value of the insurance
policy sued upon, with interest thereon at the legal rate from January 8, 1993, the date of the filing of
the complaint, until fully paid, plus P20,000.00 for and as attorney’s fees and costs of suit.

In ruling in favor of plaintiff-private respondent, the trial court found no reason to doubt the correctness
of the entries in the Certificate of Death, which declared that Florence Pulido died on September 10,
1991. It is also found that defendant, petitioner herein, failed to discharge the burden of proving its
affirmative defense that fraud attended the issuance of the policy sued upon. Contrarily, as the lower
court observed, the evidence defendant presented sustained the validity of the policy instead of
establishing its alleged fraud.1âwphi1

The lower court also struck down as hearsay the two reports prepared by Dr. Benedicto Briones, the said
investigator not having been presented as a witness in court. It also held as hearsay the alleged
declaration of Remylyn Piganto, as recounted by Ferdinand Tanchoco in his report and on testimony,
since Remylyn herself did not take the witness stand.

However, the lower court found plaintiff-private respondent entitled to legal interest only, and not to
24% per annum as prayed for. Under Section 242 of the Insurance Code, the refusal of the insurer to pay
a life insurance claim within the period prescribed will entitle the beneficiary to collect interest on the
proceeds "at the rate of twice the ceiling prescribed by the Monetary Board" for the duration of the
delay, unless the refusal to pay is based on the ground that the claim is fraudulent. Fraud being the
ground invoked by petitioner for refusing to honor the claim, the lower court found no unreasonable
delay in petitioner’s decision to withhold payment.

The petition is without merit.

As a rule, a petition for review on certiorari may raise only questions of law which must be distinctly set
forth.17 This Court does not countenance the elevation of patently factual questions disguised by a loose
and general wording of the assignment of errors.

It is clear that the only issue the petition raises for review is respondent court’s negative finding of fraud
in the obtainment of Florence Pulido’s insurance policy. Fraud is a question of fact which must be
alleged and proved at the level of the lower court.18 The records bear out that since the onset of this
case, the main issue has always been whether there was fraud in the obtainment of the disputed policy,
or put differently, whether the insured, Florence Pulido, was in fact dead before the application for
insurance on her life was made. This the lower courts had effected ruled on, upon a preponderance of
the evidence duly received from both parties. We see no reversible error in the finding of both
respondent court and the trial court in favor of the correctness of the entries in Certificate of Death,
duly registered with the Local Civil Registrar of Bagulin, La Union, which declared that Florence Pulido
died of acute pneumonia on September 10, 1991. Dr. Irineo Gutierrez, the Municipal Health Officer of
Bagulin, La Union whose signature appeared in the death certificate, testified in addition that he
ministered to the ailing Florence Pulido for two days immediately prior to her death. This fact is likewise
noted in the death certificate.

Death certificates, and notes by a municipal health officer prepared in the regular performance of his
duties, are prima facie evidence of facts therein stated.19 A duly-registered death certificate is
considered a public document and the entries found therein are presumed correct, unless the party who
contests its accuracy can produce positive evidence establishing otherwise.20 Petitioner’s contention
that the death certificate is suspect because Dr. Gutierrez was not present when Florence Pulido died,
and knew of Florence’s death only through Ramon Piganto, does not merit a conclusion of fraud. No

325
motive was imputed to Dr. Gutierrez for seeking to perpetuate a falsity in public records. Petitioner was
likewise unable to make out any clear motive as to why Ramon Piganto would purposely lie. Mere
allegations of fraud could not substitute for the full and convincing evidence that is required to prove
it.21 A failure to do so would leave intact the presumption of good faith and regularity in the
performance of public duties, which was the basis of both respondent court and the trial court in finding
the date of Florence Pulido’s death to be as plaintiff-private respondent maintained.

We cannot likewise give credence to petitioner’s submission that the inconsistencies in the testimonies
of the witnesses for plaintiff-private respondent are in themselves evidence of fraud. Such alleged
inconsistencies are matters of credibility which had been ably passed upon by the lower court.

The absence of fraud, as a factual finding of the lower court adopted by the Court of Appeals, entirely
consistent with the evidence on record, will not be reversed and, hence, is final and conclusive upon this
Court.

WHEREFORE, the instant petition is DENIED. Costs against petitioners.

SO ORDERED.

Melo, (Chairman), Vitug, and Panganiban, JJ., concur.

G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO, petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.

G.R. Nos. 114931-33 November 16, 1995

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and
JOSELITO TAMAYO, accused-appellants.

PUNO, J.:

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA
Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was
being openly challenged in rallies, demonstrations and other public fora by "Marcos loyalists,"
supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2)
groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a
known "Coryista."

From August to October 1986, several informations were filed in court against eleven persons identified
as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed
against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 86-47617 against Romeo
Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de
los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case
No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and
86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them as
accomplices to the murder of Salcedo.

The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the
accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve
witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers

326
who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution
likewise presented documentary evidence consisting of newspaper accounts of the incident and various
photographs taken during the mauling.

The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the
Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by
the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the
Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both
members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest,
recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy
Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit
could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist
leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said
"Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The
police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists
scampered away but some of them fought back and threw stones at the police. Eventually, the crowd
fled towards Maria Orosa Street and the situation later stabilized.1

At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta.
There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging
around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily
ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging around the fountain
chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga
nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the
police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A commotion ensued and Renato
Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas."
Renato took off his yellow shirt.2 He then saw a man wearing a yellow t-shirt being chased by a group of
persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his
pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him.
Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him
with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an
electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to pacify the maulers so he could extricate
Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists.
Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedo's attackers. They backed off
for a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged
from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also
boxed Salcedo twice on the head and kicked him even as he was already fallen.3 Salcedo tried to stand
but accused Joel Tan boxed him on the left side of his head and ear.4 Accused Nilo Pacadar punched
Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!"5 Sumilang tried to pacify Pacadar but the latter
lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he
once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he
tried to stand, Sison repeatedly boxed him.6 Sumilang saw accused Gerry Neri approach the victim but
did not notice what he did.7

Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat
on some cement steps8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal
Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process.
Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis,
pulis. Wala bang pulis?"9

The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer,
brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the
Philippine General Hospital where he died upon arrival.

Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions,

lacerated wounds and skull fractures as revealed in the following post-mortem findings:

327
 Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2
cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x
2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x
2.8 cm., right elbow.

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region;
occipital region, right side.

Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior
cranial fossa.

Hemorrhage, subdural, extensive.

Other visceral organs, congested.

Stomach, about 1/2 filled with grayish brown food materials and fluid.10

The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign.
The press took pictures and a video of the event which became front-page news the following day,
capturing national and international attention. This prompted President Aquino to order the Capital
Regional Command and the Western Police District to investigate the incident. A reward of ten thousand
pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who
could give information leading to the arrest of the killers.11 Several persons, including Ranulfo Sumilang
and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons,
including the accused, were apprehended and investigated.

For their defense, the principal accused denied their participation in the mauling of the victim and
offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution12 because on July 27, 1986, he was in his house in Quezon
City.13 Gerry Neri claimed that he was at the Luneta Theater at the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting
for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his
mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the
Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the
mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused,
Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that
he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like
Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to
the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because
he pitied Salcedo. The maulers however ignored him. 21

The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their
defense.

On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan,
Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by
treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to
20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The
court, however, found that the prosecution failed to prove the guilt of the other accused and thus
acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The
dispositive portion of the decision reads as follows:

328
WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court
finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond
reasonable doubt for the crime charged and hereby acquits them of said charge;

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds
the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt,
as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code,
and, there being no other mitigating or aggravating circumstances, hereby imposes on
each of them an indeterminate penalty of from FOURTEEN (14)YEARS, TEN (10)
MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20)
DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) YEARS of Reclusion Temporal,
as Maximum;

3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds
the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the
crime of Murder defined in Article 248 of the Revised Penal Code and, there being no
other extenuating circumstances, the Court hereby imposes on him an indeterminate
penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS
of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as
Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the
Accused guilty beyond reasonable doubt as principal, for the crime of "Murder" defined
in Article 248 of the Revised Penal Code and hereby imposes on him an indeterminate
penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS
of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as
Maximum;

5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds
that the Prosecution failed to prove the guilt of the Accused for the crime charged
beyond reasonable doubt and hereby acquits him of said charge;

6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds
that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt
for the crime charged and hereby acquits them of said charge;

7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said
Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under
Article 18 in relation to Article 248 of the Revised Penal Code and hereby imposes on
her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor,
as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS
of Reclusion Temporal, as Maximum.

The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito
Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of
Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of
P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de
los Santos and Joselito Tamayo had been under detention during the pendency of these
cases shall be credited to them provided that they agreed in writing to abide by and
comply strictly with the rules and regulations of the City Jail.

The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry
Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being
detained for another cause or charge.

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 The Petition for Bail of the Accused Rolando Fernandez has become moot and academic.
The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied
for lack of merit.

The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby
cancelled. 22

On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by
acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo,
to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior
strength, but convicted Joselito Tamayo of homicide because the information against him did not allege
the said qualifying circumstance. The dispositive portion of the decision reads:

PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:

1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and
Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and
are each hereby sentenced to suffer the penalty of Reclusion Perpetua;

2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable

doubt of the crime of Homicide with the generic aggravating circumstance of abuse of
superior strength and, as a consequence, an indeterminate penalty of TWELVE (12)
YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as
Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the

crime of Murder.

CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant
consolidated cases, the said cases are now hereby certified to the Honorable Supreme
Court for review. 24

Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito
Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic
review of the decision of the Court of Appeals against the four accused-appellants sentenced
to reclusion perpetua.

Before this court, accused-appellants assign the following errors:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE
ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT
THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS
RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.

II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE

UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF
PROSECUTION WITNESS RANULFO SUMILANG.

III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED

GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED
CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE
HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED.

330
 IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS
CONSPIRACY AMONG THE PRINCIPAL ACCUSED.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME
COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS
AFFRAY. 25

In their additional brief, appellants contend that:

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF

FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN
THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY
SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.

II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P",
"V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.

III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT

CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED
JURISPRUDENCE ON THE MATTER.

IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME
COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY
SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE
INCIDENT. 26

Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two
in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable,
doubtful and do not deserve any credence. According to them, the testimonies of these two
witnesses are suspect because they surfaced only after a reward was announced by General Lim.
Renato Banculo even submitted three sworn statements to the police geared at providing a new
or improved version of the incident. On the witness stand, he mistakenly identified a detention
prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and
unresponsive prompting the trial court to reprimand him several times. 28

There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim,
much less that both or either of them ever received such reward from the government. On the contrary,
the evidence shows that Sumilang reported the incident to the police and submitted his sworn
statement immediately two hours after the mauling, even before announcement of any reward. 29 He
informed the police that he would cooperate with them and identify Salcedo's assailants if he saw them
again. 30

The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended during
the investigation of Salcedo's death. 31

331
The records show that Sumilang was admonished several times by the trial court on the witness stand
for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony for he
did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was
correctly given credence by the trial court despite his evasiveness at some instances. Except for
compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses
considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts,
they can best appreciate the verbal and non-verbal dimensions of a witness' testimony.

Banculo's mistake in identifying another person as one of the accused does not make him an entirely
untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not
inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with
imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as to
some facts but disbelieved with respect to the others. 34

We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each
other on all important and relevant details of the principal occurrence. Their positive identification of all
petitioners jibe with each other and their narration of the events are supported by the medical and
documentary evidence on record.

Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the
victim had various wounds on his body which could have been inflicted by pressure from more than one
hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows
from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedo's
skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a
blunt wooden instrument. 37

Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that
Salcedo was pummeled by his assailants with stones in their hands. 38

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and
"P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-
13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives
who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O"
as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the
Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat.
Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat.
Flores on the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the Luneta
— starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard, 41 — as he was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in
local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily
Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants
for lack of proper identification by the person or persons who took the same.

The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the
photographer as to its production and testified as to the circumstances under which they were
produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction
of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of
the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has
taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can
be proved prima facie, either by the testimony of the person who made it or by other competent
witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs,
therefore, can be identified by the photographer or by any other competent witness who can testify to
its exactness and accuracy. 53

332
This court notes that when the prosecution offered the photographs as part of its evidence, appellants,
through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper
identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel
for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients
were not in any of the pictures and therefore could not have participated in the mauling of the
victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of
the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per
understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent
hearings, the prosecution used the photographs to cross-examine all the accused who took the witness
stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at
the third hearing and interposed a continuing objection to their admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the
person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an admission
of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling
incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified
themselves therein and gave reasons for their presence thereat. 58

An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various
belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison appears only
once and he, although afflicted with hernia is shown merely running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two
appellants in the photographs does not exculpate them. The photographs did not capture the entire
sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison
and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo61Appellants' denials and alibis cannot overcome their eyeball identification.

Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal
accused and in convicting them of murder qualified by abuse of superior strength, not death in
tumultuous affray.

Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:

Art. 251. Death caused in a tumultuous affray. — When, while several persons, not
composing groups organized for the common purpose of assaulting and attacking each
other reciprocally, quarrel and assault each other in a confused and tumultuous manner,
and in the course of the affray someone is killed, and it cannot be ascertained who
actually killed the deceased, but the person or persons who inflicted serious physical
injuries can be identified, such person or persons shall be punished by prison mayor.

If it cannot be determined who inflicted the serious physical injuries on the deceased,
the penalty of prision correccional in its medium and maximum periods shall be imposed
upon all those who shall have used violence upon the person of the victim.

For this article to apply, it must be established that: (1) there be several persons; (2) that they
did not compose groups organized for the common purpose of assaulting and attacking each
other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused
and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be
ascertained who actually killed the deceased; and (6) that the person or persons who inflicted
serious physical injuries or who used violence can be identified.62

A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a
confused and tumultuous affray, in the course of which some person is killed or wounded and the
author thereof cannot be ascertained.63

333
The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one
individual. Confusion may have occurred because of the police dispersal of the rallyists, but this
confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later
after said dispersal that one distinct group identified as loyalists picked on one defenseless individual
and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no
confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the
incident.64

As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and
were armed with stones with which they hit the victim. They took advantage of their superior strength
and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed
Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly
even when he was already fallen on the ground. There was a time when Salcedo was able to get up,
prop himself against the pavement and wipe off the blood from his face. But his attackers continued to
pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself.
Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the
process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The
deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that
the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety from any
defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was
apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the
"Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found,
Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he,
unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack
without the slightest provocation on the part of the person being attacked. 66

The qualifying circumstance of evident premeditation was alleged in the information against Joselito
Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo
was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was
not preceded by cool thought and reflection.

We find however the existence of a conspiracy among appellants. At the time they were committing the
crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about
the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the
conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the conspirators
is liable for all acts of the others regardless of the intent and character of their participation, because
the act of one is the act of all. 68

The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and
exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo
was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi
Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow
and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The
indemnity of P50,000.00 must also be awarded for the death of the victim.71

IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:

1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are
found GUILTY beyond reasonable doubt of Murder without any aggravating or
mitigating circumstance and are each hereby sentenced to suffer the penalty
of reclusion perpetua;

2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the

crime of Homicide with the generic aggravating circumstance of abuse of superior
strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE

334
 (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as
maximum;

3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of
Stephen Salcedo the following amounts:

(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and

(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

SO ORDERED.

Narvasa, C.J., Regalado and Mendoza, JJ., concur.

Francisco, J., is on leave.

[G.R. No. 105083. August 20, 1993.]

VIRGILIO CALLANTA, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION, DISTILLERIA

LIMTUACO CO., INC. and/or JULIUS T. LIMPE, as President and General Manager, Respondents.

M.P. Gallego, Borja & Co. for Petitioner.

Jose T. de Leon for Distilleria Limtuaco & Co., Inc.

SYLLABUS

1. LABOR AND SOCIAL LEGISLATION; LABOR CODE; IMMEDIATE REINSTATEMENT UNDER REPUBLIC ACT
NO. 6715 NOT APPLICABLE TO CASE AT BAR. — As borne by the records, the Labor Arbiter rendered his
decision in favor of petitioner on February 16, 1989. Private respondent, on the other hand, filed its
appeal on March 20, 1989. Ironically, Republic Act No. 6715, which granted the right to immediate
reinstatement under Section 12 thereof amending Article 223 of the Labor Code, became effective on
March 21, 1989, or the day after the appeal was filed by private respondent company. Meanwhile, the
NLRC Interim Rules on Appeal under Republic Act No. 6715 became effective on September 5, 1989.
Given this factual background, it is apparent that when the Labor Arbiter rendered his decision and even
up to the time when private respondent company filed an appeal therefrom, Republic Act No. 6715 was
not yet in effect. Thus, the most logical and necessary consequence was that the execution of the Labor
Arbiter’s decision as well as the requirements for the perfection of the appeal would have to be
governed by the rules prevailing prior to the amendment of the Labor Code by R.A. No. 6715. Prior to
the amendment of Article 223 of the Labor Code by R.A. 6715, "decisions, awards, or orders of the Labor
Arbiter are final and executory unless appealed to the Commission within ten (10) days from receipt of
such awards, orders, or decisions." There was then no provision providing for an execution pending
appeal. Hence, under the facts of the present petition, petitioner had no right to ask for the immediate
enforcement of the reinstatement aspect of the Labor Arbiter’s decision, no such right having been
granted to him under the old rules.

2. ID.; REPUBLIC ACT NO. 6715, WITH NO RETROACTIVE EFFECT. — R.A. No. 6715 cannot be deemed to
have retroactive effect, prospective application of the law being the rule rather than the exception
(Article 4, New Civil Code). More so in the present case where the law (R.A. No. 6715) itself did not
provide for retroactive application (Inciong v. National Labor Relations Commission, 185 SCRA 651
[1990]).

335
3. ID.; LABOR RULES, LITERALLY CONSTRUED TO GIVE WAY TO SUBSTANTIAL JUSTICE; CASE AT BAR. — It
cannot be denied, however, that upon the effectivity of R.A. No. 6715, public respondent NLRC ordered
private respondent company to post the additional requirement of cash bond and immediate
reinstatement of the petitioner. By this time, the appeal of private respondent company has already
been perfected in accordance with the old rules. Consequently, the latter’s failure to timely comply with
the bond requirement cannot be deemed in any way to affect the perfection of the appeal. Besides,
considering the factual peculiarities of the present petition as above-described, compliance with the
bond requirement, although a jurisdictional requirement, should be liberally construed to give way to
substantial justice. The same sentiment was expressed by this Court in the 1990 case of YBL (Your Bus
Line) v. NLRC (190 SCRA 160), where the factual background of the case likewise played a vital role in
upholding a liberal interpretation of the rules.

4. ID.; LABOR CODE; LABOR DISPUTES; DECISION RENDERED BY LABOR ARBITER; MOTION FOR
EXECUTION; SHOULD BE FILED WITH LABOR ARBITER. — In rebuffing the contentions of petitioner
involving the issue of immediate execution, public respondent NLRC correctly ruled that it had no
jurisdiction to act upon the motion for writ of execution. Since it was the labor arbiter who issued the
decision sought to be executed, the motion for execution should also be filed with the labor arbiter, as
explicitly provided in the New Rules of Procedure of the National Labor Relations Commission, Rule V,
Section 16(3).

5. ID.; ID.; EMPLOYMENT; RESIGNATION; VALID IF MADE VOLUNTARY AND WITHOUT COERCION; CASE
AT BAR. — Coming now to the main issue of the present petition, i.e., whether the resignation by
petitioner was valid and effective, this Court believes and so holds that the resignation tendered by
petitioner was voluntary, and therefore valid, in the absence of any evidence of coercion and
intimidation on the part of private respondent company. We agree with public respondent NLRC that
petitioner "failed to adduce evidence that may prove that said resignation was obtained by means of
coercion and intimidation." The aforequoted letter depicting the coercion allegedly imposed upon him
as well as the reason therefore, was nothing but a self-serving assertion which has so little or no value at
all as evidence for the petitioner. Furthermore, and on top of the absence of evidence adduced by
petitioner to the contrary, the Court also finds it unbelievable that petitioner was rattled and confused
into signing a resignation letter on account of a mere "spot audit" report. It is highly unlikely and
incredible for a man of petitioner’s position and educational attainment to so easily succumb to private
respondent company’s alleged pressures without even defending himself nor demanding a final audit
report before signing any resignation letter. Assuming that pressure was indeed exerted against him,
there was no urgency for petitioner to sign the resignation letter. He knew the nature of the letter that
he was signing, for as argued by respondent company, petitioner being "a man of high educational
attainment and qualification, . . . he is expected to know the import of everything that he executes,
whether written or oral." In view of the foregoing factual setting, petitioner cannot now be allowed to
withdraw the resignation which, in the absence of any evidence to the contrary, the Court believes was
tendered voluntarily by him.

6. ID.; ID.; ID.; ID.; REQUISITE FOR INTIMIDATION TO VITIATE CONSENT. — It is a well-settled principle
that for intimidation to vitiate consent, petitioner must have been compelled by a reasonable and well-
grounded fear of an imminent and grave evil upon his person or property, or upon the person or
property of his spouse, descendants or ascendants (Article 1335, par. 2, New Civil Code). In the present
case, what allegedly constituted the "intimidation" was the threat by private respondent company to file
a case for estafa against petitioner unless the latter resigns.

7. ID.; ID.; ID.; ID.; ID.; THREAT MUST BE OF AN UNJUST ACT; THREAT TO ENFORCE A CLAIM, LEGAL;
CASE AT BAR. — In asserting that the above-described circumstance constituted intimidation, petitioner
missed altogether the essential ingredient that would qualify the act complained of as intimidation, i.e.
that the threat must be of an unjust act. In the present case, the threat to prosecute for estafa not being
an unjust act (P.P Agustinos v. Del Rey, 56 Phil. 512 [1932]), but rather a valid and legal act to enforce a
claim, cannot at all be considered as intimidation. A threat to enforce one’s claim through competent
authority, if the claim is just or legal, does not vitiate consent (Article 1335, par. 4, New Civil Code).

8. REMEDIAL LAW; EVIDENCE; ABSENCE OF PROOF OF CLAIM FOR REFUND; CASE AT BAR. — Anent the
claims for refund, petitioner once again failed to convincingly prove the authenticity of his claim against

336
private respondent company. Petitioner claims that the amounts of P76,893.42 and P10,000.00
allegedly owed to him by private respondent company were matters proved during the hearings before
the Labor Arbiter. However, the records show that no hearing for the reception of evidence was ever
conducted by the Labor Arbiter. At most, what transpired were preliminary hearings which had to be
reset for five (5) times due to the absence of counsel for Private Respondent. In fact, because of the
absence of counsel for respondent company, the Labor Arbiter just ordered the parties to submit their
respective position papers in lieu of actual hearings. This having been the case, the Court is not
convinced that the money claims of petitioner have really been proven during the alleged hearings
before the Labor Arbiter, if any, especially in the present case where the money claims are even refuted
by private Respondent. Finally, the claim of petitioner for unpaid allowances amounting to P10,000.00
was satisfactorily refuted by evidence presented by private respondent company in the form of
vouchers proving payment of the same. Thus, petitioner has no more right to demand payment of the
same.

DECISION

BIDIN, J.:

In this petition for certiorari, petitioner Virgilio Callanta seeks the annulment or setting aside of the
decision of public respondent National Labor Relations Commission (NLRC) dated September 10, 1991
which reversed the finding of illegal dismissal and order of reinstatement with backwages by the
Executive Labor Arbiter Zosimo T. Vasallo.

The undisputed facts are as follows:chanrob1es virtual 1aw library

From June 18, 1986 to December 31, 1986, petitioner was appointed as sub-agent by respondent
company under the supervision of Edgar Rodriguez with specific assignment at Iligan City and Lanao
Province.

In October of 1986, or before the expiration of his appointment, petitioner was promoted to the
position of national promoter salesman of respondent company for Iligan City, Lanao del Norte and
Lanao del Sur (Rollo, p. 29). On 28 April 1987, however, a "spot audit" was conducted and petitioner was
found to have a tentative shortage in the amount of P49,005.59 (Rollo, p. 30).

On 30 April 1987, petitioner tendered his resignation to private respondent Julius T. Limpe, effective on
the same date. The petitioner’s resignation letter is herein quoted in toto:jgc:chanrobles.com.ph

"April 30, 1987

MR. JULIUS T. LIMPE

President & Gen. Manager

Distilleria Limtuaco & Co., Inc.

1830 EDSA, Quezon City

"Dear Sir:jgc:chanrobles.com.ph

"I have the honor to render (sic) my resignation as National Promoter Salesman effective April 30,
1987.chanrobles law library

"I take this opportunity to thank you for the invaluable experience I gained during my stay here. As I
leave, I take such experience as a stepping stone in pursuing greener pasture with the same honesty and
integrity I have displayed in the performance of my duties while in your employ.

337
"Rest assured that if problem arise (sic) in the future I shall be happy to assist in any way I can.

"Respectfully yours,

"(SGD.) VIRGILIO CALLANTA"

Seven months thereafter, petitioner wrote a letter to private respondent Limpe complaining about his
false resignation and demanding for the refund of the amount of P76,465.81 as well as reinstatement to
his former position.

Respondent company ignored the above demands and on March 21, 1988, petitioner filed a complaint
against respondent company before the NLRC Regional Arbitration Branch No. X for illegal dismissal,
unpaid commission and receivable and/or claims due, non-payment of vacation leaves, holiday pays,
13th month pay, COLA and other company benefits and damages (Rollo, p. 4).

On the basis of the position papers submitted by the parties, the Labor Arbiter rendered a decision
declaring the termination of petitioner’s services illegal. The dispositive portion of the decision
reads:jgc:chanrobles.com.ph

"IN VIEW OF THE FOREGOING, judgment is hereby entered declaring the termination of complainant by
respondent as illegal and ordering respondent to immediately reinstate complainant to his former
position as National Promoter Salesman with backwages from the time of his dismissal until actually
reinstated plus other benefits which he is supposed to be entitled to had he not been unlawfully
dismissed.

"Ordering respondent to pay and/or refund to complainant the sum of P76,893.42 as per audit finding
of respondent and to pay an amount equivalent to 10% of the aggregate award as attorney’s fee, plus
the sum of P10,000.00 as the allowance still due to complainant as discussed above.

"All the other claims are hereby dismissed for lack of merit.

"SO ORDERED." (Rollo, p. 21.)

Aggrieved by the decision, respondent company appealed the same to the Fifth Division of the NLRC in
Cagayan de Oro City on March 20, 1989. On October 16, 1989 respondent NLRC issued an order
requiring private respondent company as appellant therein, to post a cash or surety bond in the amount
equal to the monetary award in the Labor Arbiter’s judgment. Pursuant to the provisions of the then
newly promulgated Republic At No. 6715, the NLRC also ordered immediate reinstatement of petitioner
to his former position either physically or in the payroll, at the option of respondent company. Two (2)
months from the date of the Order, private respondent filed the required bond but did not reinstate
petitioner.

Meanwhile, petitioner filed with respondent NLRC a Motion for Writ of Execution pending appeal dated
November 22, 1990 praying for the immediate execution of the reinstatement aspect of the Labor
Arbiter’s decision in accordance with the October 16, 1989 Order of the NLRC as well as Article 223 of
the Labor Code as amended by R.A. 6715. The motion for writ of execution was not acted upon up to
the time when public respondent NLRC decided the appeal on September 10, 1991, which as aforesaid,
set aside the decision of the Labor Arbiter and dismissed the complaint of petitioner for lack of
merit.chanroblesvirtualawlibrary

Petitioner now comes to this Court by way of special civil action of certiorari praying for the nullification
of the decision of public respondent anchored on the following grounds:chanrob1es virtual 1aw library

"THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND

338
WITH GRAVE ABUSE OF DISCRETION WHEN IT DID NOT CONSIDER AND GIVE DUE COURSE TO THE
MOTION FOR WRIT OF EXECUTION FOR IMMEDIATE REINSTATEMENT OF PETITIONER BY RESPONDENT.

II

"THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND
WITH GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE ALLEGED RESIGNATION LETTER OF
COMPLAINANT WAS VALID AND EFFECTIVE CONTRARY TO THE FINDINGS OF THE LABOR ARBITER THAT
THE SAME WAS FORCED UPON COMPLAINANT.

III

"THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION ACTED WITHOUT JURISDICTION AND
WITH GRAVE ABUSE OF DISCRETION WHEN IT FAILED TO CONSIDER THAT COMPLAINANT IS STILL
ENTITLED TO THE PAYMENT AND/OR REFUND OF P76,893.42 AS PER AUDIT FINDING OF RESPONDENT
COMPANY’S AUDITOR PLUS THE SUM OF P10,000.00 AS ALLOWANCE STILL DUE TO COMPLAINANT."
(Rollo, p. 6.)

To resolve the first issue raised by petitioner, it is imperative to note the dates involved in the present
case in order to determine whether petitioner was entitled to the immediate execution of the
reinstatement aspect of the Labor Arbiter’s decision.

As borne by the records, the Labor Arbiter rendered his decision in favor of petitioner on February 16,
1989. Private respondent, on the other hand, filed its appeal on March 20, 1989. Ironically, Republic Act
No. 6715, which granted the right to immediate reinstatement under Section 12 thereof amending
Article 223 of the Labor Code, became effective on March 21, 1989, or the day after the appeal was filed
by private respondent company. Meanwhile, the NLRC Interim Rules on Appeal under Republic Act No.
6715 became effective on September 5, 1989.

Given this factual background, it is apparent that when the Labor Arbiter rendered his decision and even
up to the time when private respondent company filed an appeal therefrom, Republic Act No. 6715 was
not yet in effect. Thus, the most logical and necessary consequence was that the execution of the Labor
Arbiter’s decision as well as the requirements for the perfection of the appeal would have to be
governed by the rules prevailing prior to the amendment of the Labor Code by R.A. No. 6715.

Prior to the amendment of Article 223 of the Labor Code by R.A. 6715, "decisions, awards, or orders of
the Labor Arbiter are final and executory unless appealed to the Commission within ten (10) days from
receipt of such awards, orders, or decisions" (Italics supplied). There was then no provision providing for
an execution pending appeal. Hence, under the facts of the present petition, petitioner had no right to
ask for the immediate enforcement of the reinstatement aspect of the Labor Arbiter’s decision, no such
right having been granted to him under the old rules. Instead, the decision of the Labor Arbiter was
stayed by the timely filing of the appeal by private respondent company.chanrobles.com.ph : virtual law
library

In the motion for writ of execution filed by petitioner, he contended that the appeal of private
respondent company was not perfected since there was no bond filed along with the appeal (Rollo, p.
22).

Petitioner erroneously based his argument on the premise that the amended provisions of Article 223 of
the Labor Code are applicable to his case. But as previously emphasized, R.A. No. 6715 was not yet in
force at the time the appeal was filed. Neither can R.A. No. 6715 be deemed to have retroactive effect,
prospective application of the law being the rule rather than the exception (Article 4, New Civil Code).
More so in the present case where the law (R.A. No. 6715) itself did not provide for retroactive
application (Inciong v. National Labor Relations Commission 185 SCRA 651 [1990]).

Thus, applying the old rules, where perfection of the appeal involved only "the payment of the appeal
fee and the filing of the position paper containing among others, the assignment of error/s, the

339
argument/s in support thereof, and the reliefs sought within the prescribed period" (Omnibus Rules
Implementing the Labor Code Book V, Rule I Section 1(s)), there is no doubt that private respondent
company’s appeal was duly perfected.

It cannot be denied, however, that upon the effectivity of R.A. No. 6715, public respondent NLRC
ordered private respondent company to post the additional requirement of cash bond and immediate
reinstatement of the petitioner. By this time, the appeal of private respondent company has already
been perfected in accordance with the old rules. Consequently, the latter’s failure to timely comply with
the bond requirement cannot be deemed in any way to affect the perfection of the appeal. Besides,
considering the factual peculiarities of the present petition as above-described, compliance with the
bond requirement, although a jurisdictional requirement, should be liberally construed to give way to
substantial justice. The same sentiment was expressed by this Court in the 1990 case of YBL (Your Bus
Line) v. NLRC (190 SCRA 160), where the factual background of the case likewise played a vital role in
upholding a liberal interpretation of the rules. In the aforementioned case, We
held:jgc:chanrobles.com.ph

"The Court finds that while Article 223 of the Labor Code, as amended by Republic Act No. 6715,
requiring a cash or surety bond in the amount equivalent to the monetary award in the judgment
appealed from for the appeal to be perfected, may be considered a jurisdictional requirement,
nevertheless, adhering to the principle that substantial justice is better served by allowing the appeal on
the merits threshed out by the NLRC, the Court finds and so holds that the foregoing requirement of law
should be given a liberal interpretation."cralaw virtua1aw library

In rebuffing the contentions of petitioner involving the issue of immediate execution, public respondent
NLRC correctly ruled that it had no jurisdiction to act upon the motion for writ of execution. Since it was
the labor arbiter who issued the decision sought to be executed, the motion for execution should also
be filed with the labor arbiter, as explicitly provided in the New Rules of Procedure of the National Labor
Relations Commission Rule V Section 16(3), to wit:jgc:chanrobles.com.ph

"In case the decision includes an order of reinstatement, the Labor Arbiter shall direct the employer to
immediately reinstate the dismissed or separated employee even pending appeal. The order or
reinstatement shall indicate that the employee shall either be admitted back to work under the same
terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer,
merely reinstated in the payroll." (Italics supplied)

Coming now to the main issue of the present petition, i.e., whether the resignation by petitioner was
valid and effective, this Court believes and so holds that the resignation tendered by petitioner was
voluntary, and therefore valid, in the absence of any evidence of coercion and intimidation on the part
of private respondent company.cralawnad

Petitioner claims that private respondent company thru private respondent Julius Limpe showed him an
alleged "spot audit" report wherein petitioner appeared to be short of P49,005.59. He was then handed
a ready made resignation letter and ordered to sign the same otherwise an estafa case will be filed
against him (Rollo, p. 8). The only evidence presented by petitioner to support his contention of
coercion was a letter written by himself and addressed to private respondent Limpe, to
wit:jgc:chanrobles.com.ph

"Nov. 17, 1987

Mr. J.T. Limpe

Distileria Limtuaco & Co. Inc

1830 Edsa Balintawak

Quezon City.

"Sir:jgc:chanrobles.com.ph

340
"The basic inspiration why you dismissed or forced me to resign was that I was identified with Mr. R.S.
Chua the Sales Manager for Visayas & Mindanao. Your so called ‘post audit’ was but a convenient
afterthought and was designed to give semblance of legality to your otherwise illegal acts. As a matter
of fact and contrary to the finding of such ‘post audit’, I had an average or amount refundable to me to
be exact P76,465.81. From March 1986 up to Sept. 30, 1986 I do not have any accountability with
Limtuaco what so ever as I was sub-agent of E.V. Rodriguez. The refusal of Mrs. Lourdes Galang to show
me the records/audit of Mr. E.V. Rodriguez and of L. Pong, Jr. raise doubts as to what your intentions are.

"I therefore demand of you to refund me such amount and reinstate me from my position as "National
Promoter" otherwise I will be constrained to file against you a labor case."cralaw virtua1aw library

"Very truly yours,

"V.P. CALLANTA (SGD.)" (Rollo, p. 18).

We agree with public respondent NLRC that petitioner "failed to adduce evidence that may prove that
said resignation was obtained by means of coercion and intimidation" (Rollo, p. 33). The aforequoted
letter depicting the coercion allegedly imposed upon him as well as the reason therefore, was nothing
but a self-serving assertion which has so little or no value at all as evidence for the petitioner.

Moreover, it is a well-settled principle that for intimidation to vitiate consent, petitioner must have been
compelled by a reasonable and well-grounded fear of an imminent and grave evil upon his person or
property, or upon the person or property of his spouse, descendants or ascendants (Article 1335, par. 2
New Civil Code). In the present case, what allegedly constituted the "intimidation" was the threat by
private respondent company to file a case for estafa against petitioner unless the latter resigns.

In asserting that the above-described circumstance constituted intimidation, petitioner missed

altogether the essential ingredient that would qualify the act complained of as intimidation, i.e. that the
threat must be of an unjust act. In the present case, the threat to prosecute for estafa not being an
unjust act (P.P. Agustinos v. Del Rey, 56 Phil. 512 [1932]), but rather a valid and legal act to enforce a
claim, cannot at all be considered as intimidation. A threat to enforce one’s claim through competent
authority, if the claim is just or legal, does not vitiate consent (Article 1335, par. 4 New Civil Code).

Furthermore, and on top of the absence of evidence adduced by petitioner to the contrary, the Court
also finds it unbelievable that petitioner was rattled and confused into signing a resignation letter on
account of a mere "spot audit" report. It is highly unlikely and incredible for a man of petitioner’s
position and educational attainment to so easily succumb to private respondent company’s alleged
pressures without even defending himself nor demanding a final audit report before signing any
resignation letter. Assuming that pressure was indeed exerted against him, there was no urgency for
petitioner to sign the resignation letter. He knew the nature of the letter that he was signing, for as
argued by respondent company, petitioner being "a man of high educational attainment and
qualification, . . . he is expected to know the import of everything that he executes, whether written or
oral" (Rollo, p. 124). In view of the foregoing factual setting, petitioner cannot now be allowed to
withdraw the resignation which, in the absence of any evidence to the contrary, the Court believes was
tendered voluntarily by him.

Anent the claims for refund, petitioner once again failed to convincingly prove the authenticity of his
claim against private respondent company. Petitioner claims that the amounts of P76,893.42 and
P10,000.00 allegedly owed to him by private respondent company were matters proved during the
hearings before the Labor Arbiter (Rollo, p. 10). However, the records show that no hearing for the
reception of evidence was ever conducted by the Labor Arbiter. At most, what transpired were
preliminary hearings which had to be reset for five (5) times due to the absence of counsel for private
respondent (Rollo, p. 4). In fact, because of the absence of counsel for respondent company, the Labor
Arbiter just ordered the parties to submit their respective position papers in lieu of actual hearings. This
having been the case, the Court is not convinced that the money claims of petitioner have really been
proven during the alleged hearings before the Labor Arbiter, if any, especially in the present case where
the money claims are even refuted by private Respondent.chanrobles.com.ph : virtual law library

341
In support of its claims for refund, petitioner presented a written summation of accounts reflecting the
amounts allegedly owed by private respondent company to him. However, the aforestated summation
is undated and unsigned, thus inadmissible and uncertain as to its origin and authenticity. Further
kindling the flame of suspicion as to the origin of the summation in question is the context of the
November 17, 1987 letter of petitioner to private respondent Limpe. Quite unusual is the fact that in
refuting the findings of the alleged "post audit" conducted by private respondent company, petitioner
did not even bother to mention the source of his conclusion that private respondent company still owes
him P76,893.42, while at the same time complaining that somehow he is being refused access to and
disclosure of some of the company records, particularly the records/audit of E.V. Rodriguez and J. Pong,
Jr. These facts are inconsistent with petitioner’s contention that it was the auditor of private respondent
company itself who made the written summation.

Finally, the claim of petitioner for unpaid allowances amounting to P10,000.00 was satisfactorily refuted
by evidence presented by private respondent company in the form of vouchers proving payment of the
same (Rollo, p. 98). Thus, petitioner has no more right to demand payment of the same.

WHEREFORE, the petition is DISMISSED for lack of merit. Costs against petitioner.

SO ORDERED.

G. R. No. 129329. July 31, 2001

ESTER M. ASUNCION, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION, Second Division,

MABINI MEDICAL CLINIC and DR. WILFRIDO JUCO, Respondents.

DECISION

KAPUNAN, J.:

In her petition filed before this Court, Ester Asuncion prays that the Decision, dated November 29, 1996,
and the Resolution, dated February 20,1997, of the public respondent National Labor Relations
Commission, Second Division, in NLRC CA. 011188 which reversed the Decision of the Labor Arbiter,
dated May 15, 1996 be set aside.

The antecedents of this case are as follows:

On August 16, 1993, petitioner Ester M. Asuncion was employed as an accountant/bookkeeper by the
respondent Mabini Medical Clinic. Sometime in May 1994, certain officials of the NCR-Industrial
Relations Division of the Department of Labor and Employment conducted a routine inspection of the
premises of the respondent company and discovered upon the disclosure of the petitioner of
(documents) violations of the labor standards law such as the non-coverage from the SSS of the
employees. Consequently, respondent Company was made to correct these violations.

On August 9, 1994, the private respondent, Medical Director Wilfrido Juco, issued a memorandum to
petitioner charging her with the following offenses:

1. Chronic Absentism (sic) You have incurred since Aug. 1993 up to the present 35 absences and 23 half-
days.

2. Habitual tardiness You have late (sic) for 108 times. As shown on the record book.

3. Loitering and wasting of company time on several occasions and witnessed by several employees.

4. Getting salary of an absent employee without acknowledging or signing for it.

5. Disobedience and insubordination - continued refusal to sign memos given to you.1cräläwvirtualibräry

342
Petitioner was required to explain within two (2) days why she should not be terminated based on the
above charges.

Three days later, in the morning of August 12, 1994, petitioner submitted her response to the
memorandum. On the same day, respondent Dr. Juco, through a letter dated August 12, 1994, dismissed
the petitioner on the ground of disobedience of lawful orders and for her failure to submit her reply
within the two-day period.

This prompted petitioner to file a case for illegal termination before the NLRC.

In a Decision, dated May 15, 1996, Labor Arbiter Manuel Caday rendered judgment declaring that the
petitioner was illegally dismissed. The Labor Arbiter found that the private respondents were unable to
prove the allegation of chronic absenteeism as it failed to present in evidence the time cards, logbooks
or record book which complainant signed recording her time in reporting for work. These documents,
according to the Labor Arbiter, were in the possession of the private respondents. In fact, the record
book was mentioned in the notice of termination. Hence, the non-presentation of these documents
gives rise to the presumption that these documents were intentionally suppressed since they would be
adverse to private respondents claim. Moreover, the Labor Arbiter ruled that the petitioners absences
were with the conformity of the private respondents as both parties had agreed beforehand that
petitioner would not report to work on Saturdays. The handwritten listing of the days when complainant
was absent from work or late in reporting for work and even the computerized print-out, do not suffice
to prove that petitioners absences were unauthorized as they could easily be
manufactured. 2 Accordingly, the dispositive portion of the decision states, to wit:

WHEREFORE, Premises Considered, judgment is hereby rendered declaring the dismissal of the
complainant as illegal and ordering the respondent company to immediately reinstate her to her former
position without loss of seniority rights and to pay the complainants backwages and other benefits, as
follows:

1) P73,500.00 representing backwages as of the date of this decision until she is actually reinstated in
the service;

2) P20,000.00 by way of moral damages and another P20,000.00 representing exemplary damages; and

3) 10% of the recoverable award in this case representing attorneys fees.

SO ORDERED.3cräläwvirtualibräry

On appeal, public respondent NLRC rendered the assailed decision which set aside the Labor Arbiters
ruling. Insofar as finding the private respondents as having failed to present evidence relative to
petitioners absences and tardiness, the NLRC agrees with the Labor Arbiter. However, the NLRC ruled
that petitioner had admitted the tardiness and absences though offering justifications for the infractions.
The decretal portion of the assailed decision reads:

WHEREFORE, premises considered, the appealed decision is hereby VACATED and SET ASIDE and a NEW
ONE entered dismissing the complaint for illegal dismissal for lack of merit.

However, respondents Mabini Medical Clinic and Dr. Wilfrido Juco are jointly and solidarily ordered to
pay complainant Ester Asuncion the equivalent of her three (3) months salary for and as a penalty for
respondents non-observance of complainants right to due process.

SO ORDERED.4cräläwvirtualibräry

Petitioner filed a motion for reconsideration which the public respondent denied in its Resolution, dated
February 19, 1997. Hence, petitioner through a petition for certiorari under Rule 65 of the Rules of Court
seeks recourse to this Court and raises the following issue:

343
THE PUBLIC RESPONDENT ERRED IN FINDING THAT THE PETITIONER WAS DISMISSED BY THE PRIVATE
RESPONDENT FOR A JUST OR AUTHORIZED CAUSE.

The petition is impressed with merit.

Although, it is a legal tenet that factual findings of administrative bodies are entitled to great weight and
respect, we are constrained to take a second look at the facts before us because of the diversity in the
opinions of the Labor Arbiter and the NLRC. 5 A disharmony between the factual findings of the Labor
Arbiter and those of the NLRC opens the door to a review thereof by this Court. 6cräläwvirtualibräry

It bears stressing that a workers employment is property in the constitutional sense. He cannot be
deprived of his work without due process. In order for the dismissal to be valid, not only must it be
based on just cause supported by clear and convincing evidence, 7 the employee must also be given an
opportunity to be heard and defend himself. 8 It is the employer who has the burden of proving that the
dismissal was with just or authorized cause. 9 The failure of the employer to discharge this burden
means that the dismissal is not justified and that the employee is entitled to reinstatement and
backwages. 10cräläwvirtualibräry

In the case at bar, there is a paucity of evidence to establish the charges of absenteeism and tardiness.
We note that the employer company submitted mere handwritten listing and computer print-outs. The
handwritten listing was not signed by the one who made the same. As regards the print-outs, while the
listing was computer generated, the entries of time and other annotations were again handwritten and
unsigned. 11cräläwvirtualibräry

We find that the handwritten listing and unsigned computer print-outs were unauthenticated and,
hence, unreliable. Mere self-serving evidence of which the listing and print-outs are of that nature
should be rejected as evidence without any rational probative value even in administrative proceedings.
For this reason, we find the findings of the Labor Arbiter to be correct. On this point, the Labor Arbiter
ruled, to wit:

x x x In the instant case, while the Notice of Termination served on the complainant clearly mentions the
record book upon which her tardiness (and absences) was based, the respondent (company) failed to
establish (through) any of these documents and the handwritten listing, notwithstanding, of (sic) the
days when complainant was absent from work or late in reporting for work and even the computerized
print-outs, do not suffice to prove the complainants absences were unauthorized as they could easily be
manufactured. x x x12cräläwvirtualibräry

In IBM Philippines, Inc. v. NLRC, 13 this Court clarified that the liberality of procedure in administrative
actions is not absolute and does not justify the total disregard of certain fundamental rules of evidence.
Such that evidence without any rational probative value may not be made the basis of order or decision
of administrative bodies. The Courts ratiocination in that case is relevant to the propriety of rejecting
the unsigned handwritten listings and computer print-outs submitted by private respondents which we
quote, to wit:

However, the liberality of procedure in administrative actions is subject to limitations imposed by basic
requirements of due process. As this Court said in Ang Tibay v. CIR, the provision for flexibility in
administrative procedure does not go so far as to justify orders without a basis in evidence having
rational probative value. More specifically, as held in Uichico v. NLRC:

It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules
of procedure in the adjudication of cases. However, this procedural rule should not be construed as a
license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the
courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented
before it must at least have a modicum of admissibility for it to be given some probative value. The
Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the
accompanying signature of a certified public accountant or audited by an independent auditor, are
nothing but self-serving documents which ought to be treated as a mere scrap of paper devoid of any
probative value.

344
The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their
authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in
the conduct of proceedings before administrative agencies, have nonetheless consistently required
some proof of authenticity or reliability as condition for the admission of documents.

In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, 14 this Court held as incompetent unsigned daily
time records presented to prove that the employee was neglectful of his duties:

Indeed, the DTRs annexed to the present petition would tend to establish private respondents neglectful
attitude towards his work duties as shown by repeated and habitual absences and tardiness and
propensity for working undertime for the year 1992. But the problem with these DTRs is that they are
neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do
exist. More importantly, they are not even signed by private respondent nor by any of the employers
representatives. x x x.

In the case at bar, both the handwritten listing and computer print-outs being unsigned, the authenticity
thereof is highly suspect and devoid of any rational probative value especially in the light of the
existence of the official record book of the petitioners alleged absences and tardiness in the possession
of the employer company.

Ironically, in the memorandum charging petitioner and notice of termination, private respondents
referred to the record book as its basis for petitioners alleged absenteeism and tardiness. Interestingly,
however, the record book was never presented in evidence. Private respondents had possession thereof
and the opportunity to present the same. Being the basis of the charges against the petitioner, it is
without doubt the best evidence available to substantiate the allegations. The purpose of the rule
requiring the production of the best evidence is the prevention of fraud, because if a party is in
possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the
presumption naturally arises that the better evidence is withheld for fraudulent purposes which its
production would expose and defeat. 15 Thus, private respondents unexplained and unjustified non-
presentation of the record book, which is the best evidence in its possession and control of the charges
against the petitioner, casts serious doubts on the factual basis of the charges of absenteeism and
tardiness.

We find that private respondents failed to present a single piece of credible evidence to serve as the
basis for their charges against petitioner and consequently, failed to fulfill their burden of proving the
facts which constitute the just cause for the dismissal of the petitioner. However, the NLRC ruled that
despite such absence of evidence, there was an admission on the part of petitioner in her Letter dated
August 11, 1994 wherein she wrote:

I am quite surprised why I have incurred 35 absences since August 1993 up to the present. I can only
surmise that Saturdays were not included in my work week at your clinic. If you will please recall, per
agreement with you, my work days at your clinic is from Monday to Friday without Saturday work. As to
my other supposed absences, I believe that said absences were authorized and therefore cannot be
considered as absences which need not be explained (sic). It is also extremely difficult to understand
why it is only now that I am charged to explain alleged absences incurred way back August
1993. 16cräläwvirtualibräry

In reversing the decision of the Labor Arbiter, public respondent NLRC relied upon the supposed
admission of the petitioner of her habitual absenteeism and chronic tardiness.

We do not subscribe to the findings of the NLRC that the above quoted letter of petitioner amounted to
an admission of her alleged absences. As explained by petitioner, her alleged absences were incurred on
Saturdays. According to petitioner, these should not be considered as absences as there was an
arrangement between her and the private respondents that she would not be required to work on
Saturdays. Private respondents have failed to deny the existence of this arrangement. Hence, the
decision of the NLRC that private respondent had sufficient grounds to terminate petitioner as she
admitted the charges of habitual absences has no leg to stand on.

345
Neither have the private respondents shown by competent evidence that the petitioner was given any
warning or reprimanded for her alleged absences and tardiness. Private respondents claimed that they
sent several notices to the petitioner warning her of her absences, however, petitioner refused to
receive the same. On this point, the Labor Arbiter succinctly observed:

The record is bereft of any showing that complainant was ever warned of her absences prior to her
dismissal on August 9, 1994. The alleged notices of her absences from August 17, until September 30,
1993, from October until November 27, 1993, from December 1, 1993 up to February 26, 1994 and the
notice dated 31 May 1994 reminding complainant of her five (5) days absences, four (4) half-days and
tardiness for 582 minutes (Annex "1" to "1-D" attached to respondent' Rejoinder), fail to show that the
notices were received by the complainant. The allegation of the respondents that the complainant
refused to received (sic) the same is self-serving and merits scant consideration. xxx17cräläwvirtualibräry

The Court, likewise, takes note of the fact that the two-day period given to petitioner to explain and
answer the charges against her was most unreasonable, considering that she was charged with several
offenses and infractions (35 absences, 23 half-days and 108 tardiness), some of which were allegedly
committed almost a year before, not to mention the fact that the charges leveled against her lacked
particularity.

Apart from chronic absenteeism and habitual tardiness, petitioner was also made to answer for loitering
and wasting of company time, getting salary of an absent employee without acknowledging or signing
for it and disobedience and insubordination. 18 Thus, the Labor Arbiter found that actually petitioner
tried to submit her explanation on August 11, 1994 or within the two-day period given her, but private
respondents prevented her from doing so by instructing their staff not to accept complainants
explanation, which was the reason why her explanation was submitted a day later. 19cräläwvirtualibräry

The law mandates that every opportunity and assistance must be accorded to the employee by the
management to enable him to prepare adequately for his defense. 20 In Ruffy v. NLRC, 21 the Court held
that what would qualify as sufficient or ample opportunity, as required by law, would be every kind of
assistance that management must accord to the employee to enable him to prepare adequately for his
defense. In the case at bar, private respondents cannot be gainsaid to have given petitioner the ample
opportunity to answer the charges leveled against her.

From the foregoing, there are serious doubts in the evidence on record as to the factual basis of the
charges against petitioner. These doubts shall be resolved in her favor in line with the policy under the
Labor Code to afford protection to labor and construe doubts in favor of labor. 22 The consistent rule is
that if doubts exist between the evidence presented by the employer and the employee, the scales of
justice must be tilted in favor of the latter. The employer must affirmatively show rationally adequate
evidence that the dismissal was for a justifiable cause. 23 Not having satisfied its burden of proof, we
conclude that the employer dismissed the petitioner without any just cause. Hence, the termination is
illegal.

Having found that the petitioner has been illegally terminated, she is necessarily entitled to
reinstatement to her former previous position without loss of seniority and the payment of
backwages. 24cräläwvirtualibräry

WHEREFORE, the Decision of the National Labor Relations Commission, dated November 29, 1996 and
the Resolution, dated February 20, 1997 are hereby REVERSEDand SETASIDE, and the Decision of the
Labor Arbiter, dated May 15, 1996 REINSTATED.

SO ORDERED.

Puno, Pardo, and Ynares-Santiago, JJ., concur.

G.R. No. 124893 April 18, 1997

LYNETTE G. GARVIDA, petitioner,

vs.

346
FLORENCIO G. SALES, JR., THE HONORABLE COMMISSION ON ELECTIONS, ELECTION OFFICER DIONISIO
F. RIOS and PROVINCIAL SUPERVISOR NOLI PIPO, respondents.

PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated May 2, 1996 of respondent
Commission on Elections (COMELEC) en banc suspending her proclamation as the duly elected Chairman
of the Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui, Ilocos Norte.

The facts are undisputed. The Sangguniang Kabataan (SK) elections nationwide was scheduled to be held
on May 6, 1996. On March 16, 1996, petitioner applied for registration as member and voter of the
Katipunan ng Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of Election Tellers,
however, denied her application on the ground that petitioner, who was then twenty-one years and ten
(10) months old, exceeded the age limit for membership in the Katipunan ng Kabataan as laid down in
Section 3 [b] of COMELEC Resolution No. 2824.

On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered Kabataang Member and Voter"
with the Municipal Circuit Trial Court, Bangui-Pagudpud-Adams-Damalneg, Ilocos Norte. In a decision
dated April 18, 1996, the said court found petitioner qualified and ordered her registration as member
and voter in the Katipunan ng Kabataan. 1 The Board of Election Tellers appealed to the Regional Trial
Court, Bangui, Ilocos Norte. 2 The presiding judge of the Regional Trial Court, however, inhibited himself
from acting on the appeal due to his close association with petitioner. 3

On April 23, 1996, petitioner filed her certificate of candidacy for the position of Chairman, Sangguniang
Kabataan, Barangay San Lorenzo, Municipality of Bangui, Province of Ilocos Norte. In a letter dated April
23, 1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial Election Supervisor Noli
Pipo, 4 disapproved petitioner's certificate of candidacy again due to her age. 5 Petitioner, however,
appealed to COMELEC Regional Director Filemon A. Asperin who set aside the order of respondents and
allowed petitioner to run. 6

On May 2, 1996, respondent Rios issued a memorandum to petitioner informing her of her ineligibility
and giving her 24 hours to explain why her certificate of candidacy should not be disapproved. 7 Earlier
and without the knowledge of the COMELEC officials, private respondent Florencio G. Sales, Jr., a rival
candidate for Chairman of the Sangguniang Kabataan, filed with the COMELEC en banc a "Petition of
Denial and/or Cancellation of Certificate of Candidacy" against petitioner Garvida for falsely
representing her age qualification in her certificate of candidacy. The petition was sent by facsimile 8 and
registered mail on April 29, 1996 to the Commission on Elections National Office, Manila.

On May 2, 1996, the same day respondent Rios issued the memorandum to petitioner, the COMELEC en
banc issued an order directing the Board of Election Tellers and Board of Canvassers of Barangay San
Lorenzo to suspend the proclamation of petitioner in the event she won in the election. The order reads
as follows:

Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of Candidacy"
by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida, received on April 29,
1996, the pertinent allegations of which reads:

xxx xxx xxx

5. That the said respondent is disqualified to become a voter and a candidate for the SK
for the reason that she will be more than twenty-one (21) years of age on May 6, 1996;
that she was born on June 11, 1974 as can be gleaned from her birth certificate, copy of
which is hereto attached and marked as Annex "A";

6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo,
Bangui, Ilocos Norte, she made material representation which is false and as such, she is

347
 disqualified; that her certificate of candidacy should not be given due course and that
said candidacy must be cancelled;

xxx xxx xxx

the Commission, it appearing that the petition is meritorious, hereby DIRECTS the Board
of Election Tellers/Board of Canvassers of Barangay San Lorenzo, Bangui, Ilocos Norte,
to suspend the proclamation of Lynette G. Garvida in the event she garners the highest
number of votes for the position of Sangguniang Kabataan [sic].

Meantime, petitioner is hereby required to submit immediately ten (10) copies of his
petition and to pay the filing and legal research fees in the amount of P510.00.

SO ORDERED. 9

On May 6, 1996, election day, petitioner garnered 78 votes as against private respondent's votes of
76. 10 In accordance with the May 2, 1996 order of the COMELEC en banc, the Board of Election Tellers
did not proclaim petitioner as the winner. Hence, the instant petition for certiorari was filed on May 27,
1996.

On June 2, 1996, however, the Board of Election Tellers proclaimed petitioner the winner for the
position of SK chairman, Barangay San Lorenzo, Bangui, Ilocos Norte. 11 The proclamation was "without
prejudice to any further action by the Commission on Elections or any other interested party." 12 On July
5, 1996, petitioner ran in the Pambayang Pederasyon ng mga Sangguniang Kabataan for the municipality
of Bangui, Ilocos Norte. She won as Auditor and was proclaimed one of the elected officials of the
Pederasyon. 13

Petitioner raises two (2) significant issues: the first concerns the jurisdiction of the COMELEC en banc to
act on the petition to deny or cancel her certificate of candidacy; the second, the cancellation of her
certificate of candidacy on the ground that she has exceeded the age requirement to run as an elective
official of the SK.

Section 532 (a) of the Local Government Code of 1991 provides that the conduct of the SK elections is
under the supervision of the COMELEC and shall be governed by the Omnibus Election Code. 14 The
Omnibus Election Code, in Section 78, Article IX, governs the procedure to deny due course to or cancel
a certificate of candidacy, viz:

Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. — A verified
petition seeking to deny due course or to cancel a certificate of candidacy may be filed
by any person exclusively on the ground that any material representation contained
therein as required under Section 74 hereof is false. The petition may be filed at any
time not later than twenty-five days from the time of filing of the certificate of
candidacy and shall be decided, after due notice and hearing, not later than fifteen days
before election.

In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that a petition to deny
due course to or cancel a certificate of candidacy for an elective office may be filed with the Law
Department of the COMELEC on the ground that the candidate has made a false material
representation in his certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the COMELEC itself. 15

Under the same Rules of Procedure, jurisdiction over a petition to cancel a certificate of candidacy lies
with the COMELEC sitting in Division, not en banc. Cases before a Division may only be entertained by
the COMELEC en banc when the required number of votes to reach a decision, resolution, order or
ruling is not obtained in the Division. Moreover, only motions to reconsider decisions, resolutions,
orders or rulings of the COMELEC in Division are resolved by the COMELEC en banc. 16 It is therefore the

348
COMELEC sitting in Divisions that can hear and decide election cases. This is clear from Section 3 of the
said Rules thus:

Sec. 3. The Commission Sitting in Divisions. — The Commission shall sit in two (2)
Divisions to hear and decide protests or petitions in ordinary actions, special actions,
special cases, provisional remedies, contempt and special proceedings except in
accreditation of citizens' arms of the Commission. 17

In the instant case, the COMELEC en banc did not refer the case to any of its Divisions upon receipt of
the petition. It therefore acted without jurisdiction or with grave abuse of discretion when it entertained
the petition and issued the order of May 2, 1996. 18

II

The COMELEC en banc also erred when it failed to note that the petition itself did not comply with the
formal requirements of pleadings under the COMELEC Rules of Procedure. These requirements are:

Sec. 1. Filing of Pleadings. — Every pleading, motion and other papers must be filed in
ten (10) legible copies. However, when there is more than one respondent or protestee,
the petitioner or protestant must file additional number of copies of the petition or
protest as there are additional respondents or protestees.

Sec. 2. How Filed. — The documents referred to in the immediately preceding section
must be filed directly with the proper Clerk of Court of the Commission personally, or,
unless otherwise provided in these Rules, by registered mail. In the latter case, the date
of mailing is the date of filing and the requirement as to the number of copies must be
complied with.

Sec. 3. Form of Pleadings, etc. — (a) All pleadings allowed by these Rules shall be printed,
mimeographed or typewritten on legal size bond paper and shall be in English or Filipino.

xxx xxx xxx

Every pleading before the COMELEC must be printed, mimeographed or typewritten in legal size
bond paper and filed in at least ten (10) legible copies. Pleadings must be filed directly with the
proper Clerk of Court of the COMELEC personally, or, by registered mail.

In the instant case, the subject petition was not in proper form. Only two (2) copies of the petition were
filed with the COMELEC. 19 Also, the COMELEC en banc issued its Resolution on the basis of the petition
transmitted by facsimile, not by registered mail.

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and
graphic matter by scanning an original copy, one elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric current. 20 The current is transmitted as a signal
over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of
the elemental area in the proper position and the correct shade. 21 The receiver is equipped with a stylus
or other device that produces a printed record on paper referred to as a facsimile. 22

Filing a pleading by facsimile transmission is not sanctioned by the COMELEC Rules of Procedure, much
less by the Rules of Court. A facsimile is not a genuine and authentic pleading. It is, at best, an exact
copy preserving all the marks of an original. 23 Without the original, there is no way of determining on its
face whether the facsimile pleading is genuine and authentic and was originally signed by the party and
his counsel. It may, in fact, be a sham pleading. The uncertainty of the authenticity of a facsimile
pleading should have restrained the COMELEC en banc from acting on the petition and issuing the
questioned order. The COMELEC en banc should have waited until it received the petition filed by
registered mail.

III

349
To write finis to the case at bar, we shall now resolve the issue of petitioner's age.

The Katipunan ng Kabataan was originally created by Presidential Decree No. 684 in 1975 as the
Kabataang Barangay, a barangay youth organization composed of all residents of the barangay who
were at least 15 years but less than 18 years of age. 24 The Kabataang Barangay sought to provide its
members a medium to express their views and opinions and participate in issues of transcendental
importance. 25 Its affairs were administered by a barangay youth chairman together with six barangay
youth leaders who were actual residents of the barangay and were at least 15 years but less than 18
years of age. 26 In 1983, Batas Pambansa Blg. 337, then the Local Government Code, raised the
maximum age of the Kabataang Barangay members from "less than 18 years of age" to "not more than
21 years of age."

The Local Government Code of 1991 changed the Kabataang Barangay into the Katipunan ng Kabataan.
It, however, retained the age limit of the members laid down in B.P. 337 at 15 but not more than 21
years old. 27 The affairs of the Katipunan ng Kabataan are administered by the Sangguniang Kabataan
(SK) composed of a chairman and seven (7) members who are elected by the Katipunan ng
Kabataan. 28 The chairman automatically becomes ex-officio member of the Sangguniang Barangay. 29 A
member of the SK holds office for a term of three (3) years, unless sooner removed for cause, or
becomes permanently incapacitated, dies or resigns from office. 30

Membership in the Katipunan ng Kabataan is subject to specific qualifications laid down by the Local
Government Code of 1991, viz:

Sec. 424. Katipunan ng Kabataan. — The katipunan ng kabataan shall be composed of

all citizens of the Philippines actually residing in the barangay for at least six (6) months,
who are fifteen (15) but not more than twenty-one (21) years of age, and who are duly
registered in the list of the sangguniang kabataan or in the official barangay list in the
custody of the barangay secretary.

A member of the Katipunan ng Kabataan may become a candidate for the Sangguniang
Kabataan if he possesses the following qualifications:

Sec. 428. Qualifications. — An elective official of the sangguniang kabataan must be a

citizen of the Philippines, a qualified voter of the katipunan ng kabataan, a resident of
the barangay for at least one (1) year immediately prior to election, at least fifteen (15)
years but not more than twenty-one (21) years of age on the day of his election, able to
read and write Filipino, English, or the local dialect, and must not have been convicted
of any crime involving moral turpitude.

Under Section 424 of the Local Government Code, a member of the Katipunan ng Kabataan must be: (a)
a Filipino citizen; (b) an actual resident of the barangay for at least six months; (c) 15 but not more than
21 years of age; and (d) duly registered in the list of the Sangguniang Kabataan or in the official barangay
list. Section 428 of the Code requires that an elective official of the Sangguniang Kabataan must be: (a) a
Filipino citizen; (b) a qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at least
one (1) year immediately preceding the election; (d) at least 15 years but not more than 21 years of age
on the day of his election; (e) able to read and write; and (f) must not have been convicted of any crime
involving moral turpitude.

For the May 6, 1996 SK elections, the COMELEC interpreted Sections 424 and 428 of the Local
Government Code of 1991 in Resolution No. 2824 and defined how a member of the Katipunan ng
Kabataan becomes a qualified voter and an elective official. Thus:

Sec. 3. Qualifications of a voter. — To be qualified to register as a voter in the SK

elections, a person must be:

a) a citizen of the Philippines;

350
 b) fifteen (15) but not more than twenty-one (21) years of age on election day that is, he
must have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately preceding
the elections.

xxx xxx xxx

Sec. 6. Qualifications of elective members. — An elective official of the SK must be:

a) a qualified voter;

b) a resident in the barangay for at least one (1) year immediately prior to the elections;
and

c) able to read and write Filipino or any Philippine language or dialect or English.

Cases involving the eligibility or qualification of candidates shall be decided by the

city/municipal Election Officer (EO) whose decision shall be final.

A member of the Katipunan ng Kabataan may be a qualified voter in the May 6, 1996 SK
elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21 years of age on election
day, i.e., the voter must be born between May 6, 1975 and May 6, 1981, inclusive; and (c) a
resident of the Philippines for at least one (1) year and an actual resident of the barangay at
least six (6) months immediately preceding the elections. A candidate for the SK must: (a)
possess the foregoing qualifications of a voter; (b) be a resident in the barangay at least one (1)
year immediately preceding the elections; and (c) able to read and write.

Except for the question of age, petitioner has all the qualifications of a member and voter in the
Katipunan ng Kabataan and a candidate for the Sangguniang Kabataan. Petitioner 's age is admittedly
beyond the limit set in Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues that
Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond the scope of Sections 424 and
428 of the Local Government Code of 1991. She contends that the Code itself does not provide that the
voter must be exactly 21 years of age on election day. She urges that so long as she did not turn twenty-
two (22) years old, she was still twenty-one years of age on election day and therefore qualified as a
member and voter in the Katipunan ng Kabataan and as candidate for the SK elections.

A closer look at the Local Government Code will reveal a distinction between the maximum age of a
member in the Katipunan ng Kabataan and the maximum age of an elective SK official. Section 424 of
the Code sets a member's maximum age at 21 years only. There is no further provision as to when the
member shall have turned 21 years of age. On the other hand, Section 428 provides that the maximum
age of an elective SK official is 21 years old "on the day of his election." The addition of the phrase "or
the day of his election" is an additional qualification. The member may be more than 21 years of age on
election day or on the day he registers as member of the Katipunan ng Kabataan. The elective official,
however, must not be more than 21 years old on the day of election. The distinction is understandable
considering that the Code itself provides more qualifications for an elective SK official than for a
member of the Katipunan ng Kabataan. Dissimilum dissimilis est ratio. 31 The courts may distinguish
when there are facts and circumstances showing that the legislature intended a distinction or
qualification. 32

The qualification that a voter in the SK elections must not be more than 21 years of age on the day of
the election is not provided in Section 424 of the Local Government Code of 1991. In fact the term
"qualified voter" appears only in COMELEC Resolution No. 2824. 33 Since a "qualified voter" is not
necessarily an elective official, then it may be assumed that a "qualified voter" is a "member of the
Katipunan ng Kabataan." Section 424 of the Code does not provide that the maximum age of a member
of the Katipunan ng Kabataan is determined on the day of the election. Section 3 [b] of COMELEC

351
Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a voter for the SK elections
at exactly 21 years on the day of the election.

The provision that an elective official of the SK should not be more than 21 years of age on the day of his
election is very clear. The Local Government Code speaks of years, not months nor days. When the law
speaks of years, it is understood that years are of 365 days each. 34 One born on the first day of the year
is consequently deemed to be one year old on the 365th day after his birth — the last day of the
year. 35 In computing years, the first year is reached after completing the first 365 days. After the first
365th day, the first day of the second 365-day cycle begins. On the 365th day of the second cycle, the
person turns two years old. This cycle goes on and on in a lifetime. A person turns 21 years old on the
365th day of his 21st 365-day cycle. This means on his 21st birthday, he has completed the entire span
of 21 365-day cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day after the
365th day is the first day of the next 365-day cycle and he turns 22 years old on the 365th day.

The phrase "not more than 21 years of age" means not over 21 years, not beyond 21 years. It means 21
365-day cycles. It does not mean 21 years and one or some days or a fraction of a year because that
would be more than 21 365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22
years old," contrary to petitioner's claims. The law does not state that the candidate be less than 22
years on election day.

In P.D. 684, the law that created the Kabataang Barangay, the age qualification of a barangay youth
official was expressly stated as ". . . at least fifteen years of age or over but less than eighteen . . ." 36 This
provision clearly states that the youth official must be at least 15 years old and may be 17 years and a
fraction of a year but should not reach the age of eighteen years. When the Local Government Code
increased the age limit of members of the youth organization to 21 years, it did not reenact the
provision in such a way as to make the youth "at least 15 but less than 22 years old." If the intention of
the Code's framers was to include citizens less than 22 years old, they should have stated so expressly
instead of leaving the matter open to confusion and doubt. 37

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of the Local Government Code of
1991 declared that one of the reasons why the Katipunan ng Kabataan was created and the Kabataang
Barangay discontinued was because most, if not all, Kabataang Barangay leaders were already over 21
years of age by the time President Aquino assumed power. 38 They were not the "youth" anymore. The
Local Government Code of 1991 fixed the maximum age limit at not more than 21 years 39 and the only
exception is in the second paragraph of Section 423 which reads:

Sec. 423. Creation and Election. —

a) . . . ;

b) A sangguniang kabataan official who, during his term of office, shall have passed the
age of twenty-one (21) years shall be allowed to serve the remaining portion of the term
for which he was elected.

The general rule is that an elective official of the Sangguniang Kabataan must not be more than
21 years of age on the day of his election. The only exception is when the official reaches the
age of 21 years during his incumbency. Section 423 [b] of the Code allows him to serve the
remaining portion of the term for which he was elected. According to Senator Pimentel, the
youth leader must have "been elected prior to his 21st birthday." 40 Conversely, the SK official
must not have turned 21 years old before his election. Reading Section 423 [b] together with
Section 428 of the Code, the latest date at which an SK elective official turns 21 years old is on
the day of his election. The maximum age of a youth official must therefore be exactly 21 years
on election day. Section 3 [b] in relation to Section 6 [a] of COMELEC Resolution No. 2824 is
not ultra vires insofar as it fixes the maximum age of an elective SK official on the day of his
election.

In the case at bar, petitioner was born on June 11, 1974. On March 16, 1996, the day she registered as
voter for the May 6, 1996 SK elections, petitioner was twenty-one (21) years and nine (9) months old.

352
On the day of the elections, she was 21 years, 11 months and 5 days old. When she assumed office on
June 1, 1996, she was 21 years, 11 months and 20 days old and was merely ten (10) days away from
turning 22 years old. Petitioner may have qualified as a member of the Katipunan ng Kabataan but
definitely, petitioner was over the age limit for elective SK officials set by Section 428 of the Local
Government Code and Sections 3 [b] and 6 of Comelec Resolution No. 2824. She was ineligible to run as
candidate for the May 6, 1996 Sangguniang Kabataan elections.

The requirement that a candidate possess the age qualification is founded on public policy and if he
lacks the age on the day of the election, he can be declared ineligible. 41 In the same vein, if the
candidate is over the maximum age limit on the day of the election, he is ineligible. The fact that the
candidate was elected will not make the age requirement directory, nor will it validate his
election. 42 The will of the people as expressed through the ballot cannot cure the vice of ineligibility. 43

The ineligibility of petitioner does not entitle private respondent, the candidate who obtained the
highest number of votes in the May 6, 1996 elections, to be declared elected. 44 A defeated candidate
cannot be deemed elected to the office. 45 Moreover, despite his claims, 46 private respondent has failed
to prove that the electorate themselves actually knew of petitioner's ineligibility and that they
maliciously voted for her with the intention of misapplying their franchises and throwing away their
votes for the benefit of her rival candidate. 47

Neither can this Court order that pursuant to Section 435 of the Local Government Code petitioner
should be succeeded by the Sangguniang Kabataan member who obtained the next highest number of
votes in the May 6, 1996 elections. 48 Section 435 applies when a Sangguniang Kabataan Chairman
"refuses to assume office, fails to qualify, 49 is convicted of a felony, voluntarily resigns, dies, is
permanently incapacitated, is removed from office, or has been absent without leave for more than
three (3) consecutive months."

The question of the age qualification is a question of eligibility.50 Being "eligible" means being "legally
qualified; capable of being legally chosen." 51 Ineligibility, on the other hand, refers to the lack of the
qualifications prescribed in the Constitution or the statutes for holding public office. 52 Ineligibility is not
one of the grounds enumerated in Section 435 for succession of the SK Chairman.

To avoid a hiatus in the office of SK Chairman, the Court deems it necessary to order that the vacancy be
filled by the SK member chosen by the incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos
Norte by simple majority from among themselves. The member chosen shall assume the office of SK
Chairman for the unexpired portion of the term, and shall discharge the powers and duties, and enjoy
the rights and privileges appurtenant to said office.

IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G. Garvida is declared ineligible for
being over the age qualification for candidacy in the May 6, 1996 elections of the Sangguniang Kabataan,
and is ordered to vacate her position as Chairman of the Sangguniang Kabataan of Barangay San Lorenzo,
Bangui, Ilocos Norte. The Sangguniang Kabataan member voted by simple majority by and from among
the incumbent Sangguniang Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall
assume the office of Sangguniang Kabataan Chairman of Barangay San Lorenzo, Bangui, Ilocos Norte for
the unexpired portion of the term.

SO ORDERED.

Narvasa, C.J., Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Francisco, Panganiban and Torres, Jr., JJ., concur.

[G.R. No. 140520. December 18, 2000.]

JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO in his capacity as Secretary of

Justice, Petitioner, v. JUAN ANTONIO MUÑOZ, Respondent.

DECISION

353
DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision 1 of the Court of Appeals, dated November
9, 1999, directing the immediate release of respondent Juan Antonio Muñoz from the custody of law
upon finding the Order 2 of provisional arrest dated September 20, 1999 issued by Branch 19 of the
Regional Trial Court of Manila to be null and void.chanrob1es virtua1 1aw 1ibrary

The antecedent facts:chanrob1es virtual 1aw library

On August 23, 1997, the Hong Kong Magistrate’s Court at Eastern Magistracy issued a warrant for the
arrest of respondent for seven (7) counts of accepting an advantage as an agent contrary to Section
9(1)(a) of the Prevention of Bribery Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of
conspiracy to defraud, contrary to the common law of Hong Kong. 3 Said warrant remains in full force
and effect up to the present time. 4

On September 13, 1999, the Philippine Department of Justice (hereafter, "Philippine DOJ") received a
request for the provisional arrest of the respondent from the Mutual Legal Assistance Unit, International
Law Division of the Hong Kong Department of Justice (hereafter, Hong Kong DOJ") 5 pursuant to Article
11(1) of the Agreement Between The Government Of The Republic Of The Philippines And The
Government Of Hong Kong For The Surrender Of Accused And Convicted Persons" (hereafter, "RP-Hong
Kong Extradition Agreement"). 6 The Philippine DOJ forwarded the request for provisional arrest to the
Anti-Graft Division of the National Bureau of Investigation (NBI).

On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI filed an application
for the provisional arrest of respondent with the Regional Trial Court (RTC) of Manila.chanrob1es virtua1
1aw 1ibrary

On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting the application for
provisional arrest and issuing the corresponding Order of Arrest. 7

On September 23, 1999, respondent was arrested pursuant to the said order, and is currently detained
at the NBI detention cell. 8

On October 14, 1999, respondent filed with the Court of Appeals, a petition for certiorari, prohibition
and mandamus with application for preliminary mandatory injunction and/or writ of habeas corpus
assailing the validity of the Order of Arrest. The Court of Appeals rendered a decision declaring the
Order of Arrest null and void on the following grounds:chanrob1es virtual 1aw library

(1) that there was no urgency to warrant the request for provisional arrest under Article 11(1) of the RP-
Hong Kong Extradition Agreement; 9

(2) that the request for provisional arrest and the accompanying warrant of arrest and summary of facts
were unauthenticated and mere facsimile copies which are insufficient to form a basis for the issuance
of the Order of Arrest; 10

(3) that the twenty (20) day period for provisional arrest under Section 20(d) of Presidential Decree No.
1069 otherwise known as the Philippine Extradition Law, was not amended by Article 11(3) of the RP-
Hong Kong Extradition Agreement which provides for a forty-five (45) day period for provisional arrest;
11

(4) that the Order of Arrest was issued without the Judge having personally determined the existence of
probable cause; 12 and

(5) that the requirement of dual criminality under Section 3(a) of P.D. No., 1069 has not been satisfied as
the crimes for which respondent is wanted in Hong Kong, namely accepting an advantage as an agent

354
and conspiracy to commit fraud, are not punishable by Philippine laws. 13chanrob1es virtua1 1aw
library

Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the Department of Justice,
lost no time in filing the instant petition. 14

On November 17, 1999, respondent filed an Urgent Motion For Release Pending Appeal. He primarily
contended that, since Section 20(d) of P.D. No. 1069 sets the maximum period of provisional arrest at
twenty (20) days, and he has been detained beyond the said period, without both a request for
extradition having been received by the Philippine DOJ and the corresponding petition for extradition
having been filed in the proper RTC, he should be released from detention. 15

On December 16, 1999, petitioner filed a Manifestation with this Court stressing the fact that as early as
November 5, 1999, the Philippine DOJ had already received from the Hong Kong DOJ, a formal request
for the surrender of Respondent. Petitioner also informed this Court that pursuant to the said request
for extradition, the Philippine DOJ, representing the Government of Hong Kong, filed on November 22,
1999, a verified petition for the extradition of respondent docketed as Case No. 99-95733 and currently
pending in Branch 10 of the RTC of Manila. 16

Petitioner submits that the Court of Appeals erred in nullifying the Order of provisional arrest
against Respondent.

Petitioner imputes the following errors in the subject Decision of the Court of Appeals, to
wit:chanrob1es virtual 1aw library

The Court of Appeals gravely erred in holding that:cralaw : red

A. there was no urgency for the provisional arrest of respondent;

B. the municipal law (P.D. No. 1069) subordinates an international agreement (RP-Hongkong
Agreement);

C. the supporting documents for a request for provisional arrest have to be authenticated;

D. there was lack of factual and legal bases in the determination of probable cause; and

E. the offense of accepting an advantage as an agent is not an offense under the Anti-Graft and Corrupt
Practices Act, as amended.

II

The Court of Appeals seriously erred in declaring as null and void the trial court’s Order of Arrest dated
September 20, 1999 despite that (sic) respondent waived the right to assail the order of arrest by filing
in the trial court a motion for release on recognizance, that (sic) the issue of legality of the order of
arrest was being determined by the trial court, and respondent mocked the established rules of
procedure intended for an orderly administration of justice. 17

Petitioner takes exception to the finding of the Court of Appeals that the offense of accepting an
advantage as an agent is not punishable under Republic Act (R.A.) No. 3019 otherwise known as the
Anti-Graft and Corrupt Practices Act, as amended thus, obviating the application of P.D. No. 1069 18
that requires the offense to be punishable under the laws both of the requesting state or government
and the Republic of the Philippines. 19

However, the issue of whether or not the rule of double criminality applies was not for the Court of
Appeals to decide in the first place. The trial court in which the petition for extradition is filed is vested

355
with jurisdiction to determine whether or not the offenses mentioned in the petition are extraditable
based on the application of the dual criminality rule and other conditions mentioned in the applicable
treaty. In this case, the presiding Judge of Branch 10 of the RTC of Manila has yet to rule on the
extraditability of the offenses for which the respondent is wanted in Hong Kong. Therefore, respondent
has prematurely raised this issue before the Court of Appeals and now, before this Court.chanrobles
virtual law library

Petitioner’s other arguments, however, are impressed with merit.

First There was urgency for the provisional arrest of the Respondent.

Section 20(a) of P.D. No. 1069 reads as follows:chanrob1es virtual 1aw library

Provisional Arrest — (a) In case of urgency, the requesting state may, pursuant to the relevant treaty or
convention and while the same remains in force, request for the provisional arrest of the accused,
pending receipt of the request for extradition made in accordance with Section 4 of this Decree;

and Article 11 of the Extradition Agreement between the Philippines and Hong Kong provides in part
that:chanrob1es virtua1 1aw 1ibrary

(1) In urgent cases, the person sought may, in accordance with the law of the requested Party, be
provisionally arrested on the application of the requesting Party. . . .

Nothing in existing treaties or Philippine legislation defines the meaning of "urgency" as used in the
context of a request for provisional arrest. Using reasonable standards of interpretation, however, we
believe that urgency connotes such conditions relating to the nature of the offense charged and the
personality of the prospective extraditee which would make him susceptible to the inclination to flee or
escape from the jurisdiction if he were to learn about the impending request for his extradition and/or
likely to destroy the evidence pertinent to the said request or his eventual prosecution and without
which the latter could not proceed. 20

We find that such conditions exist in respondent’s case.chanrob1es virtua1 1aw 1ibrary

First. It should be noted that at the time the request for provisional arrest was made, respondent’s
pending application for the discharge of a restraint order over certain assets held in relation to the
offenses with which he is being charged, was set to be heard by the Court of First Instance of Hong Kong
on September 17, 1999. The Hong Kong DOJ was concerned that the pending request for the extradition
of the respondent would be disclosed to the latter during the said proceedings, and would motivate
respondent to flee the Philippines before the request for extradition could be made. 21

There is also the fact that respondent is charged with seven (7) counts of accepting an advantage as an
agent and seven (7) counts of conspiracy to defraud, for each count of which, if found guilty, he may be
punished with seven (7) and fourteen (14) years imprisonment, respectively. Undoubtedly, the gravity of
the imposable penalty upon an accused is a factor to consider in determining the likelihood that the
accused will abscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if not a
lifetime, incarceration. Furthermore, it has also not escaped the attention of this Court that respondent
appears to be affluent and possessed of sufficient resources to facilitate an escape from this jurisdiction.
22

The arguments raised by the respondent in support of his allegation that he is not a flight risk, are, to
wit:chanrob1es virtua1 1aw 1ibrary

a) He did not flee or hide when the Central Bank and the NBI investigated the matter alleged in the
request for extradition of the Hongkong Government during the second half of 1994; he has since been
cleared by the Central Bank;chanrob1es virtua1 1aw 1ibrary

b) He did not flee or hide when the Hongkong Government’s Independent Commission Against
Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in fact filed a case in Hongkong

356
against the Hongkong Government for the release of his frozen assets;

c) He never changed his address nor his identity, and has sought vindication of his rights before the
courts in Hongkong and in the Philippines;

d) He has never evaded arrest by any lawful authority, and certainly will never fly away now that his
mother is on her death bed. 23

do not convince this Court. That respondent did not flee despite the investigation conducted by the
Central Bank and the NBI way back in 1994, nor when the warrant for his arrest was issued by the Hong
Kong ICAC in August 1997, is not a guarantee that he will not flee now that proceedings for his
extradition are well on the way. Respondent is about to leave the protective sanctuary of his mother
state to face criminal charges in another jurisdiction. It cannot be denied that this is sufficient impetus
for him to flee the country as soon as the opportunity to do so arises.chanrob1es virtua1 1aw 1ibrary

Respondent also avers that his mother’s impending death makes it impossible for him to leave the
country. However, by respondent’s own admission, his mother finally expired at the Cardinal Santos
Hospital in Mandaluyong City last December 5, 1999. 24

Second. Twelve (12) days after respondent was provisionally arrested, the Philippine DOJ received from
the Hong Kong DOJ, a request for the surrender or extradition of Respondent.

On one hand, Section 20(d) of P.D. No. 1069 reads as follows:chanrob1es virtual 1aw library

(d) If within a period of twenty (20) days after the provisional arrest the Secretary of Foreign Affairs has
not received the request for extradition and the documents mentioned in Section 4 of this Decree, the
accused shall be released from custody.chanrob1es virtua1 1aw 1ibrary

On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement provides that:chanrob1es
virtual 1aw library

(3) The provisional arrest of the person sought shall be terminated upon the expiration of forty-five days
from the date of arrest if the request for surrender has not been received, unless the requesting Party
can justify continued provisional arrest of the person sought in which case the period of provisional
arrest shall be terminated upon the expiration of a reasonable time not being more than a further
fifteen days. This provision shall not prevent the re-arrest or surrender of the person sought if the
request for the person’s surrender is received subsequently.

Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement which allows a period
of forty-five (45) days for provisional arrest absent a formal request for extradition has amended Section
20(d) of P.D. No. 1069 which provides only a twenty (20) day period for the same.25cralaw:red

Petitioner’s argument on this point, however, has been rendered moot and academic by the fact that as
early as November 5, 1999 or twelve (12) days after respondent’s arrest on September 23, 1999, the
Philippine DOJ already received from the Hong Kong DOJ, a request for the surrender of Respondent.
The crucial event, after all, which tolls the provisional detention period is the transmittal of the request
for the extradition or surrender of the extraditee. Hence, the question as to whether the period for
provisional arrest stands at twenty (20) days, as provided for in P.D. No. 1069, or has been extended to
forty-five (45) days under the Extradition Agreement between Hong Kong and the Philippines is
rendered irrelevant by the actual request made by the Hong Kong DOJ for the extradition of respondent
twelve (12) days after the request for the latter’s provisional arrest.chanrob1es virtua1 1aw 1ibrary

Likewise, respondent’s contention in his motion for release pending appeal, that his incarceration
cannot continue beyond the twenty (20) day period without a petition for his extradition having been
filed in court, is simply bereft of merit. It is clear from the above-cited provisions, that for the provisional
arrest of an accused to continue, the formal request for extradition is not required to be filed in court. It
only need be received by the requested state within the periods provided for by P.D. No. 1069 and the
RP-Hong Kong Extradition Agreement. By no stretch of imagination may we infer from the required

357
receipt of the request for extradition and its accompanying documents, the additional requisite that the
same be filed in the court within the same periods.chanrob1es virtua1 1aw 1ibrary

Third. The request for provisional arrest of respondent and its accompanying documents are valid
despite lack of authentication.

Section 20(b) of P.D. No. 1069 reads as follows:chanrob1es virtual 1aw library

(b) A request for provisional arrest shall be sent to the Director of the National Bureau of Investigation,
Manila, either through the diplomatic channels or direct by post or telegraph.

and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:chanrob1es virtual
1aw library

. . . The application for provisional arrest shall contain an indication of intention to request the surrender
of the person sought and the text of a warrant of arrest or a judgment of conviction against that person,
a statement of the penalty for that offense, and such further information, if any, as would be necessary
to justify the issue of a warrant of arrest had the offense been committed, or the person convicted,
within the jurisdiction of the requested Party.

The language of the abovequoted provisions is clear. There is no requirement for the authentication of a
request for provisional arrest and its accompanying documents.

We also note that under Section 20(d) of P.D. No. 1069, viz.:chanrob1es virtual 1aw library

(d) If within a period of 20 days after the request for provisional arrest the Secretary of Foreign Affairs
has not received the request for extradition and the documents mentioned in Section 4 of this Decree,
26 the accused shall be released from custody. 27

the original or authenticated copies of the decision or sentence imposed upon the accused by the
requesting state or the criminal charge and the warrant of arrest issued by the authority of the
requesting state, need not accompany the request for provisional arrest and may, in fact, be transmitted
after the said request has already been received by the requested state.chanrob1es virtua1 1aw 1ibrary

Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement enumerates the
documents that must accompany the request, as follows: (1) an indication of the intention to request
the surrender of the person sought; (2) the text of a warrant of arrest or judgment of conviction against
that person; (3) a statement of penalty for that offense; and (4) such further information as would justify
the issue of a warrant of arrest had the offense been committed, or the person convicted, within the
jurisdiction of the requested party. 28 That the enumeration does not specify that these documents
must be authenticated copies, is not a mere omission of law. This may be gleaned from the fact that
while Article 11(1) does not require the accompanying documents of a request for provisional arrest to
be authenticated, Article 9 of the same Extradition Agreement makes authentication a requisite for
admission in evidence of any document accompanying a request for surrender or extradition. 29 In
other words, authentication is required for the request for surrender or extradition but not for the
request for provisional arrest.chanrob1es virtua1 1aw 1ibrary

We must also state that the above mentioned provisions of P.D. No. 1069 and the RP-Hong Kong
Extradition Agreement, as they are worded, serve the purpose sought to be achieved by treaty
stipulations for provisional arrest.chanrob1es virtua1 1aw 1ibrary

The process of preparing a formal request for extradition and its accompanying documents, and
transmitting them through diplomatic channels, is not only time-consuming but also leakage-prone.
There is naturally a great likelihood of flight by criminals who get an intimation of the pending request
for their extradition. To solve this problem, speedier initial steps in the form of treaty stipulations for
provisional arrest were formulated. 30 Thus, it is an accepted practice for the requesting state to rush its
request in the form of a telex or diplomatic cable, the practicality of the use of which is conceded. 31
Even our own Extradition Law (P.D. No. 1069) allows the transmission of a request for provisional arrest

358
via telegraph. 32 In the advent of modern technology, the telegraph or cable have been conveniently
replaced by the facsimile machine. Therefore, the transmission by the Hong Kong DOJ of the request for
respondent’s provisional arrest and the accompanying documents, namely, a copy of the warrant of
arrest against respondent, a summary of the facts of the case against him, particulars of his birth and
address, a statement of the intention to request his provisional arrest and the reason therefor, by fax
machine, more than serves this purpose of expediency.

Respondent’s reliance on Garvida v. Sales, Jr. 33 is misplaced. The proscription against the admission of
a pleading that has been transmitted by facsimile machine has no application in the case at bar for
obvious reasons. First, the instant case does not involve a pleading; and second, unlike the COMELEC
Rules of Procedure which do not sanction the filing of a pleading by means of a facsimile machine, P.D.
No. 1069 and the RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.chanrob1es virtua1 1aw 1ibrary

In a futile attempt to convince this Court, respondent cites our ruling in the recent case of Secretary of
Justice v. Hon. Lantion, Et. Al. 34 , where we held that the right of an extraditee to due process
necessarily includes the right to be furnished with copies of the extradition request and supporting
papers, and to file a comment thereto during the evaluation stage of the extradition proceedings.

Respondent posits that, in the same vein, the admission by the RTC of the request for provisional arrest
and its supporting documents despite lack of authentication is a violation of the respondent’s right to
due process. This contention fails to impress us.

Respondent’s contention is now a non-issue, in view of our Resolution dated October 17, 2000 in the
said case of Secretary of Justice v. Hon. Lantion, Et. Al. reconsidering and reversing our earlier decision
therein. Acting on therein petitioner’s Motion for Reconsideration, we held that therein respondent is
bereft of the right to notice and hearing during the evaluation stage of the extradition process. 35
Worthy to reiterate is the following concluding pronouncement of this Court in the said case: 36

In tilting the balance in favor of the interests of the State, the Court stresses that it is not ruling that the
private respondent has no right to due process at all throughout the length and breath of the
extrajudicial proceedings. Procedural due process requires a determination of what process is due,
when it is due and the degree of what is due. Stated otherwise, a prior determination should be made as
to whether procedural protections are at all due and when they are due, which in turn depends on the
extent to which an individual will be condemned to suffer grievous loss. 37 We have explained why an
extraditee has no right to notice and hearing during the evaluation stage of the extradition process. As
aforesaid, P.D. 1069 . . affords an extraditee sufficient opportunity to meet the evidence against him
once the petition is filed in court. The time for the extraditee to know the basis of the request for his
extradition is merely moved to the filing in court of the formal petition for extradition. The extraditee’s
right to know is momentarily withheld during the evaluation stage of the extradition process to
accommodate the more compelling interest of the State to prevent escape of potential extraditees
which can be precipitated by premature information of the basis of the request for his extradition. No
less compelling at that stage of the extradition proceedings is the need to be more deferential to the
judgment of a co-equal branch of the government, the Executive, which has been endowed by our
Constitution with greater power over matters involving our foreign relations. Needless to state, this
balance of interests is not a static but a moving balance which can be adjusted as the extradition process
moves from the administrative stage to the judicial stage and to the execution stage depending on
factors that will come into play. In sum, we rule that the temporary hold on private respondent’s
privilege of notice and hearing is a soft restraint on his right to due process which will not deprive him of
fundamental fairness should he decide to resist the request for his extradition to the United States.
There is no denial of due process as long as fundamental fairness is assured a party.chanrob1es virtua1
1aw 1ibrary

Respondent also contends that the request for his provisional arrest was rendered defective by the fact
that the person who made the request was not a foreign diplomat as provided for in Section 4 (2) of P.D.
No. 1069, to wit:chanrob1es virtual 1aw library

SEC. 4. Request; By Whom Made, Requirements —

359
(1) Any foreign state or government with which the Republic of the Philippines has entered into
extradition treaty or convention, and only when the relevant treaty or convention, remains in force, may
request for the extradition of any accused who is suspected of being in the territorial jurisdiction of the
Philippines.

(2) The request shall be made by the Foreign Diplomat of the requesting state or government, addressed
to the Secretary of Foreign Affairs, . . .

This contention deserves scant consideration. The foregoing refers to the requirements for a request for
extradition and not for a request for provisional arrest. The pertinent provisions are Article 11(2) which
states:chanrob1es virtual 1aw library

An application for provisional arrest may be forwarded through same channels as a request for
surrender or through the International Criminal Police Organization (INTERPOL); 38

and Article 8(1) which provides:chanrob1es virtua1 1aw 1ibrary

Requests for surrender and related documents shall be conveyed through the appropriate authority as
may be notified from time to time by one party to another. 39

Hence, there is sufficient compliance with the foregoing if the request for provisional arrest is made by
an official who is authorized by the government of the requesting state to make such a request and the
authorization is communicated to the requested state.

The request for provisional arrest of respondent was signed by Wayne Walsh, Senior Government
Counsel of the Mutual Legal Assistance Unit, International Law Division of the Hong Kong DOJ who
stated in categorical terms that:chanrob1es virtual 1aw library

The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is the appropriate authority
under the Agreement to make requests for provisional arrest and surrender. I confirm that as a member
of the Mutual Legal Assistance Unit, I am authorized (sic) to make this request for provisional arrest. 40

Last. There was sufficient factual and legal basis for the determination of probable cause as a requisite
for the issuance of the Order of Arrest. 41

We have defined probable cause for the issuance of a warrant of arrest as "the existence of such facts
and circumstances that would lead a reasonably discreet and prudent person to believe that an offense
has been committed by the person sought to be arrested." 42 The determination of probable cause is a
function of the Judge. Such is the mandate of our Constitution which provides that a warrant of arrest
shall issue only upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. 43 In the case of Allado v.
Diokno, 44 we stated that personal determination by the Judge of the existence of probable cause
means that he —

(a) shall personally evaluate the report and the supporting documents submitted by the fiscal regarding
the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or, (b) if on the basis
thereof he finds no probable cause, may disregard the fiscal’s report and require the submission of
supporting affidavits of witnesses to aid him in arriving at a conclusion on the existence of probable
cause. 45

The Judge cannot, therefore, merely rely on the certification issued by the prosecutor. He is, however,
not required to personally examine ipso facto the complainant and his witnesses. He sufficiently
complies with the requirement of personal determination if he reviews the information and the
documents attached thereto, and on the basis thereof forms a belief that the accused is probably guilty
of the crime with which he is being charged. 46 The Judge determines the existence of probable cause
to pass upon whether a warrant of arrest should be issued against the accused, that is, whether there is
a necessity for placing him under immediate custody in order not to frustrate the ends of justice. 47

360
The request for the respondent’s provisional arrest was accompanied by facsimile copies of the
outstanding warrant of arrest issued by the Hong Kong government, a summary of the facts of the case
against respondent, particulars of his birth and address, an intention to request his provisional arrest
and the reason therefor. The said documents were appended to the application for respondent’s
provisional arrest filed in the RTC, 48 and formed the basis of the judge’s finding of probable cause for
the issuance of the warrant of arrest against Respondent.chanrob1es virtua1 1aw 1ibrary

Respondent alleges the contrary and surmises that all that the trial judge did was to interview NBI agent
Saunar who filed the application for the issuance of the warrant of provisional arrest, and that "her
honor did not probably even notice that the supporting documents were not authenticated." 49 The
allegation, baseless and purely speculative, is one which we cannot countenance in view of the legal
presumption that official duty has been regularly performed. 50

That the Presiding Judge of RTC Manila, Branch 19, made a personal determination of the existence of
probable cause on the basis of the documents forwarded by the Hong Kong DOJ is further supported by
the Order of Arrest against respondent which states:chanrob1es virtual 1aw library

ORDER

This treats of the Application For Provisional Arrest of Juan Antonio Muñoz, for the purpose of
extradition from the Republic of the Philippines.chanrob1es virtua1 1aw 1ibrary

This application was filed in behalf of the Government of Hong Kong Special Administrative Region for
the provisional arrest of Juan Antonio Muñoz, pursuant to Section 20 of Presidential Decree No. 1069, in
relation to paragraph 1, Article 11 of the Agreement for the Surrender of Accused and Convicted
Persons between the Republic of the Philippines and Hong Kong on provisional arrest. The application
alleged that Juan Antonio Muñoz is wanted in Hong Kong for seven (7) counts the offense of "accepting
an advantage as an agent", contrary to Section 9(1) (9) of the Prevention of Bribery Ordinance Cap. 201
of Hong Kong and seven (7) counts of the offense of "conspiracy to defraud." contrary to the Common
Law of Hong Kong.

That a warrant of arrest was issued by the Magistrate’s Court at Eastern Magistracy. Hong Kong on
August 23. 1997, pursuant to the 14 charges filed against him before the issuing Court. Juan Antonio
Muñoz is now alleged to be in the Philippines. He was born on June 24, 1941, a holder of Philippines
Passport No. 2K 934808, formerly an employee of the Central Bank of the Philippines and with address
at Phase 3, BF. Homes, No. 26 D C Chuan Street, Metro Manila.

That there is an urgency in the issuance of the provisional arrest warrant for the reason that the
application to discharge the restraint over the funds subject of the offenses, in his Citibank Account in
Hong Kong was set for hearing on September 17. 1999 and that his lawyer in Hong Kong will be notified
of the request of the Hong Kong Government for his provisional arrest (sic) Juan Antonio E. Muñoz upon
knowledge of the request.chanrob1es virtua1 1aw 1ibrary

Considering that the Extradition treaty referred to is part of our systems of laws and recognized by
Presidential Decree No. 1069 and the Constitution itself by the adoption of international laws, treaties
and conventions as parts (sic) of the law of the land, the application for provisional arrest of Juan
Antonio Muñoz is hereby GRANTED. Let a warrant for his provisional arrest therefore issue.

SO ORDERED. 51 (Emphasis supplied.)

Finally, petitioner also avers that the respondent has waived his right to assail the validity of his
provisional arrest when he filed a motion for release on recognizance. Considering that we find
petitioner’s other contentions to be impressed with merit, there is no need to delve further into this
particular issue.

WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of Appeals, dated
November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED and SET ASIDE. Respondent’s "Urgent

361
Motion For Release Pending Appeal" is hereby DENIED.

SO ORDERED.

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

G. R. No. 152807 - August 12, 2003

HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN, RENE S. SABANPAN, DANILO S.

SABANPAN and THELMA S. CHU; HEIRS OF ADOLFO SAEZ: MA. LUISA SAEZ TAPIZ, MA. VICTORIA SAEZ
LAPITAN, MA. BELEN SAEZ and EMMANUEL SAEZ; and HEIRS OF CRISTINA SAEZ GUTIERREZ: ROY SAEZ
GUTIERREZ and LUIS SAEZ JR., petitioners, vs. ALBERTO C. COMORPOSA, HERDIN C. COMORPOSA,
OFELIA C. ARIEGO,1 REMEDIOS COMORPOSA, VIRGILIO A. LARIEGO,1a BELINDA M. COMORPOSA and
ISABELITA H. COMORPOSA, respondents.

PANGANIBAN, J.:

The admissibility of evidence should be distinguished from its probative value. Just because a piece of
evidence is admitted does not ipso facto mean that it conclusively proves the fact in dispute.

The Case

Before us is a Petition for Review2 under Rule 45 of the Rules of Court, seeking to set aside the August 7,
2001 Decision and the February 27, 2002 Resolution of the Court of Appeals3 (CA) in CA-GR SP No. 60645.
The dispositive portion of the assailed Decision reads as follows:

"WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the Decision dated 22 June 2000
rendered by Branch 18 of the Regional Trial Court of Digos, Davao del Sur, REVERSING and SETTING
ASIDE the Decision of the Municipal Trial Court of Sta. Cruz, Davao del Su[r]."4

The assailed Resolution5 denied petitioners' Motion for Reconsideration.

The Facts

The CA summarized the factual antecedents of the case as follows:

"A [C]omplaint for unlawful detainer with damages was filed by [petitioners] against [respondents]
before the Santa Cruz, Davao del Sur Municipal Trial Court.

"The [C]omplaint alleged that Marcos Saez was the lawful and actual possessor of Lot No. 845, Land 275
located at Darong, Sta. Cruz, Davao del Sur with an area of 1.2 hectares. In 1960, he died leaving all his
heirs, his children and grandchildren.

"In 1965, Francisco Comorposa who was working in the land of Oboza was terminated from his job. The
termination of his employment caused a problem in relocating his house. Being a close family friend of
[Marcos] Saez, Francisco Comorposa approached the late Marcos Saez's son, [Adolfo] Saez, the husband
of Gloria Leano Saez, about his problem. Out of pity and for humanitarian consideration, Adolfo allowed
Francisco Comorposa to occupy the land of Marcos Saez. Hence, his nipa hut was carried by his
neighbors and transferred to a portion of the land subject matter of this case. Such transfer was
witnessed by several people, among them, Gloria Leano and Noel Oboza. Francisco Comorposa occupied
a portion of Marcos Saez' property without paying any rental.

"Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his possession by the respondents
who likewise did not pay any rental and are occupying the premises through petitioners' tolerance.

"On 7 May 1998, a formal demand was made upon the respondents to vacate the premises but the
latter refused to vacate the same and claimed that they [were] the legitimate claimants and the actual
and lawful possessor[s] of the premises. A [C]omplaint was filed with the barangay office of Sta. Cruz[,]

362
Davao del Sur, but the parties failed to arrive at an amicable settlement. Thus, the corresponding
Certificate to File Action was issued by the said barangay and an action for unlawful detainer was filed
by petitioners against respondents.

"Respondents, in their Answer, denied the material allegations of the [C]omplaint and alleged that they
entered and occupied the premises in their own right as true, valid and lawful claimants, possessors and
owners of the said lot way back in 1960 and up to the present time; that they have acquired just and
valid ownership and possession of the premises by ordinary or extraordinary prescription, and that the
Regional Director of the DENR, Region XI has already upheld their possession over the land in question
when it ruled that they [were] the rightful claimants and possessors and [were], therefore, entitled to
the issuance of a title.

"The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in favor of petitioners but the
Regional Trial Court of Digos, Davao del Sur, on appeal, reversed and set aside the said decision. x x x"6

Ruling of the Court of Appeals

Affirming the Regional Trial Court (RTC), the CA upheld the right of respondents as claimants and
possessors. The appellate court held that -- although not yet final -- the Order issued by the regional
executive director of the Department of Environment and Natural Resources (DENR) remained in full
force and effect, unless declared null and void. The CA added that the Certification issued by the DENR's
community environment and natural resources (CENR) officer was proof that when the cadastral survey
was conducted, the land was still alienable and was not yet allocated to any person.

According to the CA, respondents had the better right to possess alienable and disposable land of the
public domain, because they have sufficiently proven their actual, physical, open, notorious, exclusive,
continuous and uninterrupted possession thereof since 1960. The appellate court deemed as self-
serving, and therefore incredible, the Affidavits executed by Gloria Leano Saez, Noel Oboza and Paulina
Paran.

Hence, this Petition.7

The Issue

In their Memorandum, petitioners raise the following issues for the Court's consideration:

"I

Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the ruling of the Regional
Trial Court giving credence to the Order dated 2 April 1998 issued by the regional executive director?

"II

Did the Court of Appeals gravely abuse its discretion and err in sustaining the Regional Trial Court's
ruling giving weight to the CENR Officer's Certification, which only bears the facsimile of the alleged
signature of a certain Jose F. Tagorda and, [worse], it is a new matter raised for the first time on appeal?

"III

Did the Court of Appeals gravely abuse its discretion and err in holding that the land subject matter of
this case has been acquired by means of adverse possession and prescription?

"IV

Did the Court of Appeals gravely abuse its discretion, and err in declaring that, 'neither is there error on
the part of the Regional Trial Court, when it did not give importance to the affidavits by Gloria Leano
Saez, Noel [Oboza], and Paulina Paran for allegedly being self serving?'"8

363
To facilitate the discussion, the fourth and the third issues shall be discussed in reverse sequence.

The Court's Ruling

The Petition has no merit.

First Issue:
The DENR Order of April 2, 1998

Petitioners claim that the reliance of the CA upon the April 2, 1998 Order issued by the regional director
of the DENR was erroneous. The reason was that the Order, which had upheld the claim of respondents,
was supposedly not yet final and executory. Another Order dated August 23, 1999,9 issued later by the
DENR regional director, allegedly held in abeyance the effectivity of the earlier one.

Under the Public Land Act,10 the management and the disposition of public land is under the primary
control of the director of lands11 (now the director of the Lands Management Bureau or LMB),12 subject
to review by the DENR secretary.13 As a rule, then, courts have no jurisdiction to intrude upon matters
properly falling within the powers of the LMB.

The powers given to the LMB and the DENR to alienate and dispose of public land does not, however,
divest regular courts of jurisdiction over possessory actions instituted by occupants or applicants to
protect their respective possessions and occupations.14 The power to determine who has actual physical
possession or occupation of public land and who has the better right of possession over it remains with
the courts.15 But once the DENR has decided, particularly through the grant of a homestead patent and
the issuance of a certificate of title, its decision on these points will normally prevail.16

Therefore, while the issue as to who among the parties are entitled to a piece of public land remains
pending with the DENR, the question of recovery of possession of the disputed property is a matter that
may be addressed to the courts.

Second Issue:
CENR Officer's Certification

Petitioners contend that the CENR Certification dated July 22, 1997 is a sham document, because the
signature of the CENR officer is a mere facsimile. In support of their argument, they cite Garvida v. Sales
Jr.17 and argue that the Certification is a new matter being raised by respondents for the first time on
appeal.

We are not persuaded.

In Garvida, the Court held:

"A facsimile or fax transmission is a process involving the transmission and reproduction of printed and
graphic matter by scanning an original copy, one elemental area at a time, and representing the shade
or tone of each area by a specified amount of electric current. x x x"18

Pleadings filed via fax machines are not considered originals and are at best exact copies. As such, they
are not admissible in evidence, as there is no way of determining whether they are genuine or
authentic.19

The Certification, on the other hand, is being contested for bearing a facsimile of the signature of CENR
Officer Jose F. Tagorda. The facsimile referred to is not the same as that which is alluded to in Garvida.
The one mentioned here refers to a facsimile signature, which is defined as a signature produced by
mechanical means but recognized as valid in banking, financial, and business transactions.20

Note that the CENR officer has not disclaimed the Certification. In fact, the DENR regional director has
acknowledged and used it as reference in his Order dated April 2, 1998:

364
"x x x. CENR Officer Jose F. Tagorda, in a 'CERTIFICATION' dated 22 July 1997, certified among others,
that: x x x per records available in his Office, x x x the controverted lot x x x was not allocated to any
person x x x."21

If the Certification were a sham as petitioner claims, then the regional director would not have used it as
reference in his Order. Instead, he would have either verified it or directed the CENR officer to take the
appropriate action, as the latter was under the former's direct control and supervision.

Petitioners' claim that the Certification was raised for the first time on appeal is incorrect. As early as the
pretrial conference at the Municipal Trial Court (MTC), the CENR Certification had already been marked
as evidence for respondents as stated in the Pre-trial Order.22 The Certification was not formally offered,
however, because respondents had not been able to file their position paper.

Neither the rules of procedure23 nor jurisprudence24 would sanction the admission of evidence that has
not been formally offered during the trial. But this evidentiary rule is applicable only to ordinary trials,
not to cases covered by the rule on summary procedure -- cases in which no full-blown trial is held.25

Third Issue:
Affidavit of Petitioners' Witnesses

Petitioners assert that the CA erred in disregarding the Affidavits of their witnesses, insisting that the
Rule on Summary Procedure authorizes the use of affidavits. They also claim that the failure of
respondents to file their position paper and counter-affidavits before the MTC amounts to an admission
by silence.

The admissibility of evidence should not be confused with its probative value. Admissibility refers to the
question of whether certain pieces of evidence are to be considered at all, while probative value refers
to the question of whether the admitted evidence proves an issue.26 Thus, a particular item of evidence
may be admissible, but its evidentiary weight depends on judicial evaluation within the guidelines
provided by the rules of evidence.27

While in summary proceedings affidavits are admissible as the witnesses' respective testimonies, the
failure of the adverse party to reply does not ipso facto render the facts, set forth therein, duly proven.
Petitioners still bear the burden of proving their cause of action, because they are the ones asserting an
affirmative relief.28

Fourth Issue:
Defense of Prescription

Petitioners claim that the court a quo erred in upholding the defense of prescription proffered by
respondents. It is the former's contention that since the latter's possession of the land was merely being
tolerated, there was no basis for the claim of prescription. We disagree.

For the Court to uphold the contention of petitioners, they have first to prove that the possession of
respondents was by mere tolerance. The only pieces of evidence submitted by the former to support
their claim were a technical description and a vicinity map drawn in accordance with the survey dated
May 22, 1936.29 Both of these were discredited by the CENR Certification, which indicated that the
contested lot had not yet been allocated to any person when the survey was conducted.30 The
testimony of petitioners' witnesses alone cannot prevail over respondents' continued and uninterrupted
possession of the subject lot for a considerable length of time.

Furthermore, this is an issue of fact that cannot, as a rule, be raised in a petition for review under Rule
45.31

WHEREFORE, the Petition is DENIED and the assailed Decision AFFIRMED. Costs against petitioners.

SO ORDERED.

365
[G.R. No. 80505 : December 4, 1990.]
192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY y LIM, Defendant-Appellant.

DECISION

CRUZ, J.:

The decision of the Regional Trial Court of Makati, Branch 133 dated October 13, 1987, convicting Mario
Tandoy of the crime of violation of Art. II, Sec. 4 of Rep. Act No. 6425 known as the Dangerous Drugs Act
of 1972, is before us on appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro Manila, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused without being authorized
by law, did then and there willfully, unlawfully and feloniously sell eight (8) pieces of dried marijuana
flowering tops, two (2) pieces of dried marijuana flowering tops and crushed dried marijuana flowering
tops, which are prohibited drug, for and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge Buenaventura J. Guerrero
rendered a decision the dispositive portion of which declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond reasonable doubt of violation of
Sec. 4, Art. II, Rep. Act No. 6425, as amended, and is hereby sentenced to life imprisonment and
to pay a fine of P20,000.00 and cost.: nad
The marijuana confiscated in this case is declared confiscated and forfeited and ordered turned
over to the Dangerous Drugs Board for proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable doubt of the crime charged
despite lack of evidence to prove that he sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused Exh. "E-2-A" which is
merely a xerox copy of the P10.00 bill allegedly used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station dispatched Pfc. Herino de
la Cruz, and Detectives Pablo R. Singayan, Nicanor Candolesas, Luisito de la Cruz, Estanislao Dalumpines,
Antonio Manalastas and Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay
Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as the buyer. He stood alone
near the store waiting for any pusher to approach. The other members of the team strategically
positioned themselves. Soon, three men approached Singayan. One of them was the accused-appellant,
who said without preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange was made
then and there — two rolls/pieces of marijuana for one P10.00 and two P5.00 bills marked ANU
(meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas made a body search of the
accused-appellant and took from him the marked money, as well as eight more rolls/foils of marijuana
and crushed leaves.: nad
The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit, Makati Police Station, for
investigation by Detective Marvin Pajilan. The accused-appellant chose to remain silent after having
been informed of his constitutional rights.

366
These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1 Microscopic, chemical
and chromotographic examination was performed on the confiscated marijuana by Raquel P. Angeles,
forensic chemist of the National Bureau of Investigation, who later testified that the findings were
positive. The marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a different story. His testimony was that from 1:30 to
4:00 p.m. of the day in question, he was playing "cara y cruz" with 15 other persons along Solchuaga St.
when somebody suddenly said that policemen were making arrests. The players grabbed the bet money
and scampered. However, he and a certain Danny (another "cara y cruz" player) were caught and taken
to the Narcotics Command headquarters in Makati. There they were mauled and warned that if they did
not point to their fellow pushers, they would rot in jail. The accused-appellant denied he had sold
marijuana to Singayan and insisted the bills taken from him were the bet money he had grabbed at the
"cara y cruz" game. 3
The trial court, which had the opportunity to observe the demeanor of the witnesses and to listen to
their respective testimonies, gave more credence to the statements of the arresting officers. Applying
the presumption that they had performed their duties in a regular manner, it rejected Tandoy's
uncorroborated allegation that he had been manhandled and framed. Tandoy had not submitted
sufficient evidence of his charges, let alone his admission that he had no quarrel with the peace officers
whom he had met only on the day of his arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the prosecution was
actuated by improper motives, the presumption is that he was not so actuated and his testimony is
entitled to full faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a total stranger until the
seller is certain of the identity of the buyer."
The conjecture must be rejected.: nad
In People v. Paco, 5 this Court observed:
Drug-pushing when done on a small level as in this case belongs to that class of crimes that may be
committed at anytime and at any place. After the offer to buy is accepted and the exchange is made, the
illegal transaction is completed in a few minutes. The fact that the parties are in a public place and in the
presence of other people may not always discourage them from pursuing their illegal trade as these
factors may even serve to camouflage the same. Hence, the Court has sustained the conviction of drug
pushers caught selling illegal drugs in a billiard hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142
SCRA 329; People v. Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store
(People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No. 67609, November 22,
1985, 140 SCRA 259), and in front of a house (People v. Policarpio, G.R. No. 69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between the buyer and the seller
but their agreement and the acts constituting the sale and delivery of the marijuana leaves." 6
Under the second assigned error, the accused-appellant invokes the best evidence rule and questions
the admission by the trial court of the xerox copy only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill marked money (Exh. E-2-A)
which, according to the appellant, is excluded under the best evidence rule for being a mere xerox copy.
Apparently, appellant erroneously thinks that said marked money is an ordinary document falling under
Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction of secondary evidence
except in the five (5) instances mentioned therein.:-cralaw
The best evidence rule applies only when the contents of the document are the subject of inquiry.
Where the issue is only as to whether or not such document was actually executed, or exists, or in the
circumstances relevant to or surrounding its execution, the best evidence rule does not apply and
testimonial evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for the purpose of
establishing its existence and not its contents, other substitutionary evidence, like a xerox copy thereof,
is therefore admissible without the need of accounting for the original.

367
Moreover, the presentation at the trial of the "buy-bust money" was not indispensable to the conviction
of the accused-appellant because the sale of the marijuana had been adequately proved by the
testimony of the police officers. So long as the marijuana actually sold by the accused-appellant had
been submitted as an exhibit, the failure to produce the marked money itself would not constitute a
fatal omission.
We are convinced from the evidence on record that the prosecution has overcome the constitutional
presumption of innocence in favor of the accused-appellant with proof beyond reasonable doubt of his
guilt. He must therefore suffer the penalty prescribed by law for those who would visit the scourge of
drug addiction upon our people.
WHEREFORE, the appeal is DISMISSED and the challenged decision AFFIRMED in toto, with costs against
the accused-appellant.: nad
SO ORDERED
Narvasa (Chairman), Gancayco, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 116835 March 5, 1998

ANTONIETTA GARCIA VDA. DE CHUA, petitioner,

vs.
COURT OF APPEALS (Special Eight Division), HON. JAPAL M. GUIANI, RTC, Branch 14, 12th Judicial
Region, Cotabato City, and FLORITA A. VALLEJO, as Administratrix of the Estate of the late Roberto L.
Chua, respondents.

KAPUNAN, J.:

Assailed before us in this Appeal by Certiorari under Rule 45 of the Rules of Court is the decision of the
Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April 1994 affirming the decision of the
Regional Trial Court, Branch 14, of Cotabato City in Special Procedure Case No. 331.

As culled from the records, the following facts have been established by evidence:

During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent Florita A. Vallejo
from 1970 up to 1981. Out of this union, the couple begot two illegitimate children, namely, Roberto
Rafson Alonzo and Rudyard Pride Alonzo.

On 28 May 1992, Roberto Chua died intestate in Davao City.

On 2 July 1992, private respondent filed with the Regional Trial Court of Cotabato City a Petition1 which
is reproduced hereunder:

IN RE: PETITION FOR DECLARATION

OF HEIRSHIP, GUARDIANSHIP OVER

THE PERSONS AND PROPERTIES OF

MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331

and RUDYARD PRIDE ALONZO, all

surnamed CHUA and ISSUANCE OF

LETTERS OF ADMINISTRATION.

FLORITA ALONZO VALLEJO,

368
Petitioner

PETITION

COMES NOW the petitioner assisted by counsel and unto this Honorable Court most
respectfully states:

1. That she is of legal age, Filipino, married but separated from her husband and residing at
Quezon Avenue, Cotabato City, Philippines;

2. That sometime from 1970 up to and until late 1981 your petitioner lived with Roberto Lim
Chua as husband and wife and out of said union they begot two (2) children, namely, Robert
Rafson Alonzo Chua who was born in General Santos City on April 28, 1977 and Rudyard Pride
Alonzo Chua who was born in Davao City on August 30, 1978. A xerox copy of the birth
certificate of each child is hereto attached as annex "A" and "B", respectively.

3. That the aforementioned children who are still minors today are both staying with herein
petitioner at her address at Quezon Avenue, Cotabato City;

4. That Roberto Lim Chua, father of the above-mentioned minors, died intestate on May 28,
1992 in Davao City.

5. That the aforementioned deceased left properties both real and personal worth
P5,000,000.00 consisting of the following:

a) Lot in Kakar, Cotabato City covered by TCT

No. T-12835 with an area of 290 sq. m. estimated at P50,000.00

b) Lot in Kakar, Cotabato City covered by TCT

No. T-12834 with an area of 323 sq. m. 50,000.00

c) Lot in Davao City covered by TCT

No. T-126583 with an area of 303 sq. m. 50,000.00

d) Lot in Davao City covered by TCT

No. T-126584 with an area of 303 sq. m. 50,000.00

e) Residential house in Cotabato City valued at 30,000.00

f) Residential house in Davao City valued at 600,000.00

g) Car, Colt Lancer with Motor No. 4G33-3 AF6393 210,000.00

h) Colt, Galant Super Saloon with Motor

No. 4G37-GB0165 545,000.00

i) Car, Colt Galant with Motor No. 4G52-52D75248 110,000.00

j) Reo Isuzu Dump Truck with Motor

No. DA640-838635 350,000.00

k) Hino Dump Truck with Motor No. ED100-T47148 350,000.00

l) Stockholdings in various corporations with par value

estimated at 3,335,000.00

Total P5,000,000.00

369
6. That deceased Roberto Lim Chua died single and without legitimate descendants or
ascendants, hence, the above named minors Robert Rafson Alonzo Chua and Rudyard Pride
Alonzo Chua, his children with herein petitioner shall succeed to the entire estate of the
deceased. (Article 988 of the Civil Code of the Philippines).

7. That the names, ages and residences of the relatives of said minors are the following, to
wit:

Names Relationship Ages Residence

1. Carlos Chua Uncle 60 Quezon Avenue,

Cotabato City

2. Aida Chua Auntie 55 Rosary Heights,

Cotabato City

3. Romulo Uy Uncle 40 c/o Overseas

Fishing Exporation
Co. Inc., Matina,
Davao City

6. That considering the fact that the aforementioned minors by operation of law are to
succeed to the entire estate of Roberto Lim Chua under the provisions of Article 988 of the
New Civil Code of the Philippines, it is necessary that for the protection of the rights and
interest of Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, both minors and heirs
of deceased Roberto Lim Chua, a guardian over the persons and properties of said minors be
appointed by this Honorable Court.

7. That herein petitioner being the mother and natural guardian of said minors is also
competent and willing to act as the guardian of minors Robert Rafson Alonzo Chua and
Rudyard Pride Alonzo Chua both staying and living with her; that petitioner possesses all the
qualifications and none of the disqualifications of a guardian.

WHEREFORE, premises considered, it is most respectfully prayed:

1. That, upon proper notice and hearing, an order be issued declaring minors ROBERTO
RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA as heirs to the intestate estate of
deceased ROBERTO LIM CHUA;

2. That Letters of Administration be issued to herein petitioner for the administration of the
estate of the deceased ROBERTO LIM CHUA;

3. That the petitioner be also appointed the guardian of the persons and estate of minors
ROBERT RAFSON ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA;

4. That after all the property of deceased Roberto Lim Chua have been inventoried and
expenses and just debts, have been paid, the intestate estate of Roberto Lim Chua be
distributed to its rightful heirs, the minors in this case, pursuant to the provisions of Article
988 of the New Civil Code of the Philippines.

5. And for such other reliefs and remedies this Honorable Court may consider fit and proper in
the premises.

Cotabato City, Philippines, June 29, 1992.

(Sgd.) FLORITA ALONZO VALLEJO

(Petitioner)

370
The trial court issued an order setting the hearing of the petition on 14 August 1992 and directed that
notice thereof be published in a newspaper of general circulation in the province of Maguindanao and
Cotabato City and or Davao City.

On 21 July 1992, herein petitioner Antonietta Garcia Vda. de Chua, representing to be the surviving
spouse of Roberto Chua, filed a Motion to Dismiss2 on the ground of improper venue. Petitioner
alleged that at the time of the decedent's death Davao City was his residence, hence, the Regional
Trial Court of Davao City is the proper forum.

Private respondent filed an opposition to the Motion to Dismiss3 dated July 20, 1992 based on the
following grounds:

(1) That this petition is for the guardianship of the minor children of the petitioner who are
heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of
Court the venue shall be at the place where the minor resides;

(2) That the above-named minors are residents of Cotabato City:

(3) That the movant in this case has no personality to intervene nor oppose in the granting of
this petition for the reason that she is a total stranger to the minors Robert Rafson Alonzo and
Rudyard Pride Alonzo, all surnamed Chua.

(4) That deceased Roberto L. Chua died a bachelor. He is the father of the above-named
minors with the petitioner in this case;

(5) That movant/oppositor Antonietta Chua is not the surviving spouse of the late Roberto L.
Chua but a pretender to the estate of the latter since the deceased never contracted marriage
with any woman until he died.

On 6 August 1992, private respondent Vallejo filed a Motion for Admission of an Amended
Petition4 "in order that the designation of the case title can properly and appropriately capture or
capsulize in clear terms the material averments in the body of the pleadings; thus avoiding any
confusion or misconception of the nature and real intent and purpose of this petition." The amended
petition5 contained identical material allegations but differed in its title, thus:.

IN RE: PETITION FOR THE SETTLEMENT OF THE INTESTATE ESTATE OF ROBERTO L. CHUA,
DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF
MINORS ROBERT AND RUDYARD, all surnamed CHUA and ISSUANCE OF LETTERS OF
ADMINISTRATION.

FLORITA ALONZO VALLEJO,

Petitioner.

Paragraph 4 of the original petition was also amended to read as follows:

4. That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato City
and died intestate on May 28, 1992 at Davao City.

The petition contained exactly the same prayers as the original petition.

Petitioner opposed the motion to amend petition alleging that at the hearing of said motion on 24
July 1992, private respondent's counsel allegedly admitted that the sole intention of the original
petition was to secure guardianship over the persons and property of the minors.6

On 21 August 1992, the trial court issued an Order7 denying the motion to dismiss for lack of merit.
The court ruled that Antonietta Garcia had no personality to file the motion to dismiss not having
proven her status as wife of the decedent. Further, the court found that the actual residence of the
deceased was Cotabato City, and even assuming that there was concurrent venue among the Regional

371
Trial Courts where the decedent had resided, the R.T.C. of Cotabato had already taken cognizance of
the settlement of the decedent's estate to the exclusion of all others. The pertinent portions of the
order read:

At the hearing of the motion to dismiss on August 19, 1992, counsel for movant Antonietta G.
Chua presented 18 Exhibits in support of her allegation that she was the lawful wife of the
decedent and that the latter resides in Davao City at the time of his death. Exh. "1" was the
xerox copy of the alleged marriage contract between the movant and the petitioner. This
cannot be admitted in evidence on the ground of the timely objection of the counsels for
petitioner that the best evidence is the original copy or authenticated copy which the movant
cannot produce. Further, the counsels for petitioner in opposition presented the following: a
certification from the Local Civil Registrar concerned that no such marriage contract was ever
registered with them; a letter from Judge Augusto Banzali, the alleged person to have
solemnized the alleged marriage that he has not solemnized such alleged marriage. Exhibit "2"
through "18" consist among others of Transfer Certificate of Title issued in the name of
Roberto L. Chua married to Antonietta Garcia, and a resident of Davao City; Residence
Certificates from 1988 and 1989 issued at Davao City indicating that he was married and was
born in Cotabato City; Income Tax Returns for 1990 and 1991 filed in Davao City where the
status of the decedent was stated as married; passport of the decedent specifying that he was
married and his residence was Davao City. Petitioner through counsels, objected to the
admission in evidence of Exhibits "2" through "18" if the purpose is to establish the truth of
the alleged marriage between the decedent and Antonietta Garcia. The best evidence they
said is the marriage contract. They do not object to the admission of said exhibit if the
purpose is to show that Davao City was the business residence of the decedent.

Petitioner through counsels, presented Exhibit "A" through "K" to support her allegation that
the decedent was a resident of Cotabato City; that he died a bachelor; that he begot two
illegitimate children with the petitioner as mother. Among these exhibits are Income Tax
Returns filed in Cotabato City from 1968 through 1979 indicating therein that he was single;
birth certificates of the alleged two illegitimate children of the decedent; Resident Certificates
of the decedent issued in Cotabato City; Registration Certificate of Vehicle of the decedent
showing that his residence is Cotabato City.

It is clear from the foregoing that the movant failed to establish the truth of her allegation
that she was the lawful wife of the decedent. The best evidence is a valid marriage contract
which the movant failed to produce. Transfer Certificates of Title, Residence Certificates,
passports and other similar documents cannot prove marriage especially so when the
petitioner has submitted a certification from the Local Civil Registrar concerned that the
alleged marriage was not registered and a letter from the judge alleged to have solemnized
the marriage that he has not solemnized said alleged marriage. Consequently, she has no
personality to file the subject motion to dismiss.

On the issue of the residence of the decedent at the time of his death, the decedent as a
businessman has many business residences from different parts of the country where he
usually stays to supervise and pursue his business ventures. Davao City is one of them. It
cannot be denied that Cotabato City is his actual residence where his alleged illegitimate
children also reside.

The place of residence of the deceased in settlement of estates, probate of will, and issuance
of letters of administration does not constitute an element of jurisdiction over the subject
matter. It is merely constitutive of venue (Fule vs. CA, L-40502, November 29, 1976). Even
assuming that there is concurrent venue among the Regional Trial Courts of the places where
the decedent has residences, the Regional Trial Court first taking cognizance of the settlement
of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts
(Section 1, Rule 73). It was this Court which first took cognizance of the case when the petition
was filed on July 2, 1992, docketed as Special Proceeding No. 331 and an order of publication
issued by this Court on July 13, 1992.

372
 WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied for lack of merit.

On 31 August 1992, upon motion of private respondent, the trial court issued an order appointing
Romulo Lim Uy, a first cousin of the deceased, as special administrator of the decedent's estate.8

On the same day, the trial court, likewise, issued an Order appointing Florita Vallejo as guardian over
the persons and properties of the two minor children.9

Thereafter, petitioner filed a Motion dated 25 October 199310 praying that the letters of
administration issued to Vallejo be recalled and that new letters of administration be issued to her.
She, likewise, filed a Motion dated 5 November 199311 to declare the proceedings a mistrial. Both
motions were denied by the trial court in its Order dated 22 November 1993. 12 Petitioner's motion for
reconsideration of the order was denied by the trial court in an Order dated 13 December 1993.13

Assailing the last two orders of the trial court, petitioner filed a petition for certiorari and prohibition
(Rule 65) with the respondent Court of Appeals, docketed as CA G.R. No. Sp. 33101, alleging that the
trial court acted with grave abuse of discretion in:

(1) unilaterally and summarily converting, if not treating, the guardianship proceedings into an
intestate proceeding;

(2) summarily hearing the intestate proceedings without jurisdiction and without any notice
to herein petitioner whatsoever; and

(3) issuing the questioned order (sic) on the alleged pretension that herein petitioner has no
personality to intervene in SPL Proc. No. 331 questioning the highly anomalous orders
precipitately issued ex-parte by the public respondent R.T.C. without notice to the petitioners.

Petitioner in the main argued that private respondent herself admitted in her opposition to
petitioner's motion to dismiss filed in the trial court and in open court that the original petition she
filed is one for guardianship; hence, the trial court acted beyond its jurisdiction when it issued letters
of administration over the estate of Roberto L. Chua, thereby converting the petition into an intestate
proceeding, without the amended petition being published in a newspaper of general circulation as
required by Section 3, Rule 79.

The Court of Appeals, in its decision promulgated on 19 April 1994, 14 denied the petition ratiocinating
that the original petition filed was one for guardianship of the illegitimate children of the deceased as
well as for administration of his intestate estate. While private respondent may have alleged in her
opposition to the motion to dismiss that petition was for guardianship, the fact remains that the very
allegations of the original petition unmistakably showed a twin purpose: (1) guardianship; and (2)
issuance of letters of administration. As such, it was unnecessary for her to republish the notice of
hearing through a newspaper of general circulation in the province. The amended petition was filed
for the only reason stated in the motion for leave: so that the "case title can properly and
appropriately capture or capsulize in clear terms the material averments in the body of the pleadings;
thus avoiding any confusion or misconception of the nature and real intent and purpose of this
petition," which was for guardianship over the persons and properties of her minor children and for
the settlement of the intestate estate of the decedent who was their father. In other words, there
being no change in the material allegations between the original and amended petitions, the
publication of the first in a newspaper of general circulation sufficed for purposes of compliance with
the legal requirements of notice.

Moreover, the appellate court ruled that the petitioner's remedy is appeal from the orders
complained of under Section 1(f), Rule 109 of the Rules of Court, not certiorari and prohibition.

Not satisfied with the decision of the Court of Appeals, petitioner comes to this Court contending that
the appellate court committed the following errors:

373
 THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING
THAT THE ORIGINAL PETITION (Annex F, Petition) WAS FOR A TWIN PURPOSE, TO WIT: FOR
GUARDIANSHIP AND FOR INTESTATE ESTATE PROCEEDINGS;

II

THE PUBLIC RESPONDENT COURT APPEALS SERIOUSLY ERRED IN HOLDING THAT THERE IS NO
NEED TO PUBLISH THE AMENDED PETITION FOR ADMINISTRATION OF THE INTESTATE ESTATE
THEREBY CONTRAVENING THE RULES OF COURT AND THE RULINGS OF THE SUPREME COURT.

III

THE PUBLIC RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN NOT NULLIFYING THE
ORDERS (Annex "P" to "T") PRECIPITATELY ISSUED EX-PARTE BY THE PUBLIC RESPONDENT
REGIONAL TRIAL COURT IN THE INTESTATE PROCEEDINGS WITHOUT PRIOR HEARING OR
NOTICE TO HEREIN PETITIONER THEREBY DEPRIVING THE LATTER (ANTONIETTA GARCIA VDA.
DE CHUA ) OF DUE PROCESS AND OPPORTUNITY TO BE HEARD.

IV

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SWEEPINGLY HOLDING

THAT PETITIONER'S REMEDY IS APPEAL.15

In support of her first assignment of error, petitioner submits that the Court of Appeals' conclusion
that the original petition was one for guardianship and administration of the intestate estate is
contradicted by the evidence on hand, asserting that the original petition failed to allege and state the
jurisdictional facts required by the Rules of Court in petitions for administration of a decedent's estate,
such as: (a) the last actual residence of the decedent at the time of his death; (b) names, ages and
residences of the heirs; and (c) the names and residences of the creditors of the decedent. Petitioner
also reiterates her argument regarding private respondent's alleged admission that the original
petition was one for guardianship and not for issuance of letters of administration, pointing to the
Opposition to the Motion to Dismiss dated 20 July 1992, where the private respondent alleged.

1. That this petition is for guardianship of the minor children of the petitioner who are heirs to
the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the
venue shall be at the place where the minor resides.16

as well as to the statements made by counsel for the private respondent during the 24 July 1992
hearing on the motion to dismiss:

ATTY. RENDON:

We filed our opposition to the motion to dismiss the petition because this is a petition for
guardianship of minors, not for intestate proceedings. So this is a case where the mother
wanted to be appointed as guardian because she is also the litigant here. Because whenever
there is an intestate proceedings, she has to represent the minors, and under the Rules of
Court in any guardianship proceedings, the venue is at the place where the minor is actually
residing.17

The petition is devoid of merit.

The title alone of the original petition clearly shows that the petition is one which includes the
issuance of letters of administration. The title of said petition reads:

IN RE: PETITION FOR DECLARATION OF HEIRSHIPS, GUARDIANSHIP OVER THE PERSON AND
PROPERTIES OF MINORS ROBERTO ALONZO AND RUDYARD ALONZO, all surnamed CHUA and
ISSUANCE OF LETTERS OF ADMINISTRATION.18

374
Likewise, the prayer of the petition states:

2. That Letters of Administration be issued to herein petition for the administration of the
estate of the deceased ROBERTO LIM CHUA.

The original petition also contains the jurisdictional facts required in a petition for the issuance of
letters of administration. Section 2, Rule 79 of the Rules of Court reads:

Sec. 2. Contents of petition for letters of administration — A petition for letters of

administration must be filed by an interested person and must show, so far as known to the
petitioner:

(a) jurisdictional facts;

(b) The names, ages, and residences of the heirs and the names and residences of the
creditors, of the decedent'

(c) The probative value and character of the property of the estate;.

(d) The name of the person for whom letters of administration are prayed;

But no defect in the petition shall render void the issuance of letters of administration.
(emphasis ours).

The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death
of the testator; (2) residence at the time of death in the province where the probate court is located;
and (3) if the decedent was a non-resident, the fact of being a resident of a foreign country and that
the decedent has left an estate in the province where the court is sitting.19

While paragraph 4 of the original petition stating:

(4) That Roberto Lim Chua, father of the above mentioned minors, died intestate on May 28,
1992 in Davao City.

failed to indicate the residence of the deceased at the time of his death, the omission was cured by
the amended petitions wherein the same paragraph now reads:

(4) That Roberto Lim Chua, father of the abovementioned minors is a resident of Cotabato
City and died intestate on May 28, 1992 at Davao City.20 (Emphasis in the original.)

All told the original petition alleged substantially all the facts required to be stated in the petition for
letters of administration. Consequently, there was no need to publish the amended petition as
petitioner would insist in her second assignment of errors.

Be that as it may, petitioner has no legal standing to file the motion to dismiss as she is not related to
the deceased, nor does she have any interest in his estate as creditor or otherwise. The Rules are
explicit on who may do so:

Sec. 4. Opposition to petition for administration — Any interested person, may by filing a
written opposition, contest the petition on the ground of incompetency of the person for
whom letters of administration are prayed therein, or on the ground of the contestant's own
right to the administration, and may pray that letters issue to himself, or to any competent
person or persons named in the opposition..

Only an interested person may oppose the petition for issuance of letters of administration. An
interested person is one who would be benefited by the estate such as an heir, or one who has a claim
against the estate, such as a creditor; his interest is material and direct, and not one that is only
indirect or contingent.21

375
Petitioner was not able to prove her status as the surviving wife of the decedent. The best proof of
marriage between man and wife is a marriage contract which Antonietta Chua failed to produce. The
lower court correctly disregarded the photostat copy of the marriage certificate which she presented,
this being a violation of the best evidence rule, together with other worthless pieces of evidence. The
trial court correctly ruled in its 21 August 1992 Order that:

. . . Transfer Certificates of Title, Residence Certificates, passports and other similar

documents cannot prove marriage especially so when the petitioner has submitted a
certification from the Local Civil Registrar concerned that the alleged marriage was not
registered and a letter from the judge alleged to have solemnized the marriage that he has not
solemnized said alleged marriage. . . .22

Under her third assignment of error, petitioner claims that the trial court issued its orders, Annexes
"P" to "T" without prior hearing or notice to her, thus, depriving her of due process.

The orders referred to by petitioner are: Order dated 31 August 1992 appointing Romulo Lim Uy, first
cousin of the deceased, as special administrator of the estate; Order dated 31 August 1992 appointing
private respondent as guardian over the person and property of the minors; Order dated 5 August
1993, directing the transfer of the remains of the deceased from Davao City to Cotabato City; Order
dated 6 September 1993 directing petitioner to turn over a Mitsubishi Gallant car owned by the estate
of the deceased to the special administrator; and Order dated 28 September 1993, authorizing the
sheriff to break open the deceased's house for the purpose of conducting an inventory of the
properties found therein, after the sheriff was refused entry to the house by the driver and maid of
petitioner.

Apart from the fact that petitioner was not entitled to notice of the proceedings of the trial court, not
being able to establish proof of her alleged marriage to the deceased, or of her interest in the estate
as creditor or otherwise, petitioner categorically stated in the instant petition that on 25 October 1993
she filed a motion praying for the recall of the letters of administration issued by the trial court and
another motion dated 5 August 1993 praying that the proceedings conducted by the trial court be
declared as a mistrial and the court orders relative thereto be set aside and nullified. Petitioner
further stated that her motions were denied by the trial court in its Order dated 22 November 21,
1993 and that on 30 November 1993 she filed a motion for reconsideration of the order of denial
which in turn was denied by the trial court on 13 December 1993.

Due process was designed to afford opportunity to be heard, not that an actual hearing should always
and indispensably be held.23 The essence of due process is simply an opportunity to be heard.24 Here,
even granting that the petitioner was not notified of the orders of the trial court marked as Exhibits
"P" to "T," inclusive, nonetheless, she was duly heard in her motions to recall letters of administration
and to declare the proceedings of the court as a "mistrial," which motions were denied in the Order
dated 22 November 1993.25 A motion for the reconsideration of this order of denial was also duly
heard by the trial court but was denied in its Order of 13 December 1993.26

Denial of due process cannot be successfully invoked by a party who has had the opportunity to be
heard on his motion for reconsideration.27

As to the last assignment of errors, we agree with the Court of Appeals that the proper remedy of the
petitioner in said court was an ordinary appeal and not a special civil action for certiorari; which can
be availed of if a party has no plain, speedy and adequate remedy in the ordinary course of law.
Except for her bare allegation that an ordinary appeal would be inadequate, nothing on record would
indicate that extraordinary remedy of certiorari or prohibition is warranted.

Finally, petitioner further argues as supplement to her memorandum that the ruling of the Court of
Appeals treating the Special Proceeding No. 331 as one for both guardianship and settlement of estate
is in contravention of our ruling in Gomez vs. Imperial,28 which the petitioner quotes:

376
 The distribution of the residue of the estate of the deceased is a function pertaining property
not to the guardianship proceedings, but to another proceeding which the heirs are at liberty
to initiate.

Petitioner's reliance on said case is misplaced. In the Gomez case, the action before the lower court
was merely one for guardianship. Therefore said court did not have the jurisdiction to distribute the
estate of the deceased. While in the case at bar, the petition filed before the court was both for
guardianship and settlement of estate.

IN VIEW OF THE FOREGOING, the petition of petitioner Antonietta Chua is hereby denied.

SO ORDERED.

Narvasa, C.J., Romero and Purisima, JJ., concur.

[G.R. No. 140904. October 9, 2000.]

RENE S. ONG, MAGDALENO B. ALBARRACIN, JR., PETRONIO C. AALIWIN and J. O. NERIT, Petitioners, v.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, Respondents.

DECISION

MELO, J.:

Before us is a petition for certiorari and prohibition with prayer for issuance of a writ of preliminary
injunction, wherein petitioners, Accused before the Metropolitan Trial Court (MeTC) of Makati City,
charge said court with having committed grave abuse of discretion when it denied their demurrer to
evidence.chanrob1es virtua1 1aw 1ibrary

The facts of the case are as follows:chanrob1es virtual 1aw library

On February 8, 1993, Zeny Alfonso purchased a paper bag-making machine for P362,000.00 from the
Solid Cement Corporation. When she went to the corporation’s Antipolo plant, however, no machine
could be given to her, it appearing that the machine sold had been earlier mortgaged to a creditor, who,
unfortunately, refused to release the mortgage. Herein petitioners offered to return the money paid by
Mrs. Alfonso but she refused and instead filed a criminal complaint with the City Prosecutor of Makati.

The City Prosecutor dismissed the complaint on the ground that liability, if any, would be civil and not
criminal in nature. This dismissal was, however, reversed by the Department of Justice.

On October 18, 1994, an Information for estafa and other deceit based on Article 318 of the Revised
Penal Code was filed with the MeTC of Makati City. After pre-trial, the prosecution presented as its sole
witness complainant Zeny Alfonso. The prosecution then formally offered its documentary evidence and
rested its case. The admissibility of these documents was questioned by petitioners.

The disputed documents are alleged photo copies of (1) the approval of the sale of the paper bag-
making machine supposedly signed by petitioners; (2) an official receipt of Solid Cement Corporation
evidencing payment of P362,000.00; (3) a plant gate pass from one J.P. Valencia dated February 16,
1993 for entry into the Antipolo compound and pull-out of the machine; (4) a letter from one Atty.
Maximino Robles demanding delivery of the machine to the complainant; (5) a letter of Solid Cement’s
Rene S. Ong offering to return P362,000.00 plus interest; (6) a letter from Atty. Robles informing Solid
Cement of complainant’s refusal to accept the refund of the P362,000.00; (7) a memorandum from five
officers or employees of Solid Cement Corporation recommending the sale of the paper bag-making-
machine; (8) another gate-pass dated December 3, 1992 from one Ramon Enriquez allowing the pull out
of the machine; (9) a letter from one Lorenzo P. Ligot thanking Solid Cement, through one Peter Aaliwin,
for the former’s grant of a right of first refusal; and (10) a copy of the resolution dated July 26, 1993 of

377
the Provincial Prosecutor’s Office of Rizal. The defense objected to the admission of these pieces of
evidence, claiming that the same were only unauthenticated photocopies of the originals.

On July 12, 1996, petitioners filed a motion for leave to file demurrer to evidence, attaching thereto
their demurrer. In their pleading, petitioners stressed that all the above-mentioned documents being
uncertified photocopies bearing unidentified or unauthenticated signatures are inadmissible in evidence.
Without ruling on the motion for leave to file demurrer, the MeTC, on August 19, 1996, held:chanrob1es
virtual 1aw library

WHEREFORE, the instant demurrer is hereby denied and the motion to hold departure order of all
accused Granted. Let a copy of this Order be sent to the Commissioner of Bureau of Immigration and
Deportation for proper disposition and implementation against the accused RENE ONG, MAGDALENO
ALBARRACIN, JR., PETRONIO C. AALIWIN and J.O. NERIT of Solid Cement Corporation, No. 168 Salcedo
Street, 3rd Floor, Golden Rock Building, Makati City.

(pp. 113-114, Rollo.)

In its Order denying the demurrer to evidence, MeTC Judge Felicidad Y. Navarro-Quiambao summarized
private complainant’s testimony as follows:chanrob1es virtual 1aw library

The prosecutor presented the private complainant Zeny Alfonso who testified that on February 8, 1993,
she was awarded by the accused the sale of a Paper Bag Making Machine including its spare parts. On
February 16, 1993, she paid in full the purchase price of the machine including the charges for its freight
to Cebu in the amount of P362,000.00 and as a consequence of said payment she was issued a Plant
Gate Pass for the pull out of shipment of the machine to Cebu; that the following day, she proceeded to
the plant site of the Solid Cement Corporation in Antipolo where she was told that accused Rene S. Ong
has ordered to stop and discontinue with the shipment of the machine; that on the same day, she
rushed to see Mr. Ong in Makati and she was told to wait for a week; that on March 1, 1993, she went
again to Mr. Ong who informed her to go back to the plant site for final arrangement regarding the
shipment of the paper bag machine so she proceeded to the plant only to be told that the machine
cannot be released on order of Mr. Ong; that upon the demand of her lawyer to the Solid Corporation
for its compliance with their obligation under the transaction, Mr. Ong offered a compromise which was
turned down by her.chanrob1es virtua1 1aw 1ibrary

(pp. 112-113, Rollo.)

The MeTC, in fact, found that there was a prima facie case against petitioners on the basis of the
documents submitted by the prosecution, stating:chanrob1es virtual 1aw library

The Court noted from the documentary evidence on record that the machine subject of the transaction
between the complainant and the accused is mortgaged to another creditor, who, incidentally, refused
to release the mortgage on said subject machine. Indeed, this strongly suggest (sic) the existence of a
prima facie case that would warrant a trial on the merits. Accordingly, the motion for hold departure
order is hereby Granted.

(p. 113, Rollo.)

Acting on a petition for certiorari and prohibition filed by the accused, the Regional Trial Court of Makati,
per Judge Teofilo Guadiz, Jr., reversed the above ruling in its order dated May 19, 1997,
disposing:chanrob1es virtual 1aw library

WHEREFORE, in view of the foregoing, the petition is hereby granted. The Order dated August 19, 1996
denying the Demurrer to Evidence and the Order dated September 18, 1996, insofar as it declares the
existence of cause to hold the petitioners for further trial, are hereby set aside and declared null and
void. The respondent judge is hereby ordered to dismiss Criminal Case No. 157290 entitled People of the
Philippines v. Rene Ong, Et. Al.

(p. 159, Rollo.)

378
The Guadiz resolution was raised to the Court of Appeals by the People. On April 8, 1999, the 13th’
Division thereof (Mabutas [P], Aquino, and Rivera, JJ.,) rendered a reversal decision, the dispositive
portion of which reads:chanrob1es virtual 1aw library

WHEREFORE, premises considered, the petition is hereby GRANTED — and the assailed resolution
(dated May 19, 1997) and order (dated October 16, 1997) of the respondent judge SET ASIDE. The writ
of preliminary injunction issued by this Court on June 5, 1998 is made permanent. The private
respondents herein are given the option to either present their evidence (in Criminal Case No. 157290
which is reinstated) before the trial court below (Metropolitan Trial Court) or to submit the case for
decision based solely on the prosecutor’s evidence.

(p. 71, Rollo.)

Petitioners submit that the Court of Appeals acted contrary to law and jurisprudence and committed
grave abuse of discretion in:chanrob1es virtual 1aw library

1) finding that appeal and not certiorari was the remedy that should have been availed of by petitioners;

2) finding that RTC Judge Teofilo Guadiz, Jr. erred in evaluating the prosecution’s evidence for sufficiency
and inadmissibility;

3) not finding that the RTC resolution dated May 19, 1997 was an acquittal and not applying double
jeopardy in their favor;

The petition is meritorious.

In setting aside the regional trial court’s decision which ordered the MeTC to dismiss the criminal case
filed against petitioners, the Court of Appeals held that petitioners, after the denial by the MeTC of their
demurrer to evidence, should not have filed a petition for certiorari with the regional trial court. In its
words:chanrob1es virtual 1aw library

As pointed out, the Supreme Court, in the case of Joseph v. Villaluz (89 SCRA 324), held that it would not
annul an interlocutory order denying a motion to dismiss in a criminal case. Appeal is the proper remedy
of the petitioners in order to have the findings of fact reviewed by a superior court (Manalo v. Mariano,
69 SCRA 80). Such ruling was a reiteration of an earlier one in People v. Romero (22 Phil. 565) wherein
the Highest Tribunal stressed that the question of whether or not the evidence by the prosecution is
sufficient to convince the court that the accused is guilty beyond reasonable doubt of the crime charged,
rests entirely within the sound judgment of the trial court. The error, if any is committed by the denial of
the demurrer to evidence, can only be corrected by appeal (Cruz v. People, 144 SCRA 677).

Similarly, the Supreme Court held in People v. Court of Appeals (119 SCRA 162) that it has been the long
settled rule that certiorari does not lie to challenge the trial court’s interlocutory order denying the
accused’s motion to dismiss. "The appellate courts will not review in such special civil action the
prosecution’s evidence and decide in advance that such evidence has or has not yet established the guilt
of the accused beyond reasonable doubt. The orderly procedure prescribed by the Rules of Court is for
the accused to present his evidence after which the trial court, on its own assessment of the evidence
submitted by both the prosecution and defense, will then properly render its judgment of acquittal or
conviction. If the verdict is one of acquittal, the case ends there. But if it is one of conviction, then
appeal is the proper recourse (Cruz v. People, supra).chanrob1es virtua1 1aw 1ibrary

(pp. 64-65, Rollo.)

In other words, the position of the Court of Appeals is to the effect that after the denial of their
demurrer to evidence, petitioners instead of filing a petition for certiorari with the regional trial court,
should have presented their evidence and in case of an adverse decision, appealed the same to the
regional trial court.

379
Likewise, the Court of Appeals brushed aside petitioners’ invocation of their right against double
jeopardy, stating that the order of the regional trial court dismissing the criminal case filed against
petitioners did not amount to their acquittal. Held thus the appellate court:chanrob1es virtual 1aw
library

As aptly posited by the petitioner (The People) the requisites that must concur for legal jeopardy to
attach are: (a) a valid complaint or information; (b) a court of competent jurisdiction; (c) the accused has
pleaded to the charge; and (d) the accused has been convicted or acquitted, or the case dismissed or
terminated without the express consent of the accused (People v. Gines, 197 SCRA 481, De la Rosa v.
Court of Appeals, 253 SCRA 499). The fourth requisite is lacking, because respondent court’s resolution
of May 19, 1997 is a "fruit" emerging from a grave abuse of discretion — thus it cannot ripen to an
acquittal of the private respondents, whose demurrer to evidence had been denied by the trial court
below. It is true that an accused is presumed innocent until his guilt is shown beyond reasonable doubt.
However, after the prosecution has adduced evidence, the constitutional presumption of innocence
must yield to what has been so amply and persuasively demonstrated (People v. Andal, 70 SCRA 30). The
respondent judge could not decide in the special civil action before him whether or not the evidence
adduced by the prosecution had established beyond reasonable doubt the guilt of petitioners (private
respondents herein), because factual matters are not proper for consideration in proceedings brought
either as an original action for certiorari or as an appeal by certiorari (Insular Bank of Asia and America v.
Court of Appeals, 228 SCRA 420; Navarro v. Commission on Elections, 228 SCRA 596). It is, therefore,
incumbent on the part of the accused (private respondents herein) to neutralize the evidence of the
State in order to maintain the presumption of their innocence of the crime of which they were charged.
If convicted, appeal will be their (private respondents’) proper remedy to have the findings of fact by the
trial judge reviewed by a superior court (Manalo v. Mariano, Et Al., 69 SCRA 80).

Indeed, the rule generally prevailing is that" certiorari does not lie to review a trial court’s interlocutory
order denying a motion to dismiss (or to acquit), which is equivalent to a demurrer to evidence, filed
after the prosecution had presented its evidence and rested its case. An order denying a demurrer to
evidence is interlocutory. It is not appealable. Neither can it be the subject of a petition
for certiorari (Tadeo v. People, 300 SCRA 744 [1998])."cralaw virtua1aw library

However, Tadeo itself states that" [f]rom such denial (of the demurrer to evidence), appeal in due time
is the proper remedy, not certiorari, in the absence of grave abuse of discretion or excess of jurisdiction,
or an oppressive exercise of judicial authority."cralaw virtua1aw library

Consequently, if the denial of the demurrer to evidence is attended by grave abuse of discretion, the
denial may be assailed through a petition for certiorari. This exception was explicitly recognized by the
Court in Cruz v. People (303 SCRA 533 [1999]), where we stated that:chanrob1es virtual 1aw library

The general rule that the extraordinary writ of certiorari is not available to challenge (the denial of the
demurrer to evidence) may be subject to exceptions. When the assailed interlocutory orders are
patently erroneous or issued with grave abuse of discretion, the remedy of certiorari lies.

Likewise, in Gutib v. Court of Appeals (312 SCRA 365 [1999]), we declared that "the rule is not absolute
and admits of an exception. Thus where, as in the instant case, the denial of the motion to dismiss by
the trial court was tainted with grave abuse of discretion amounting to lack or excess of jurisdiction, the
aggrieved party may assail the order of denial on certiorari."cralaw virtua1aw library

The present case presents one such exception warranting the resort to the remedy of certiorari, the trial
court judge having committed grave abuse of discretion amounting to lack or excess of jurisdiction in
denying petitioners’ demurrer to evidence. A demurrer to evidence is an objection by one of the parties
in an action, to the effect that the evidence which his adversary produced is insufficient in point of law,
whether true or not, to make out a case or sustain the issue. The party demurring challenges the
sufficiency of the whole evidence to sustain a verdict. The court, in passing upon the sufficiency of the
evidence raised in a demurrer, is merely required to ascertain whether there is competent or sufficient
evidence to sustain the indictment or to support a verdict of guilt (Gutib v. CA, supra).chanrob1es
virtua1 1aw 1ibrary

380
In the instant case, there is no competent and sufficient evidence to sustain the indictment or to
support a verdict of guilt against petitioners. As pointed out by petitioners, all documentary evidence
submitted by the private complainant were uncertified photocopies of certain documents, the
signatures on which were either unidentified or unauthenticated.

Section 20, Rule 132 of the Revised Rules of Court provides that "before any private document offered
as authentic is received in evidence, its due execution and authenticity must be proved
either:chanrob1es virtual 1aw library

(a) by anyone who saw the document executed or written; or

(b) by evidence of the genuineness of the signature or handwriting of the maker.

Thus, prior to the admission in evidence of a private writing, the identity and authenticity of the
document sought to be presented must first be reasonably established. Where there is no proof as to
the authenticity of the executor’s signature appearing in a private document, such private document
should be excluded (Paz v. Santiago, 47 Phil 334 [1925]).

The documentary evidence submitted by the complaining witness are private instruments, being
instruments executed by private persons without the intervention of a public notary or of other persons
legally authorized, by which document some disposition or agreement is proved, evidenced, or set forth
(U.S. v. Orera, 11 Phil. 596 [1907]).

Being private instruments, their due and valid execution and their genuineness and authenticity must
first be established, either by the testimony of any one who saw the writing executed or by evidence of
the genuineness of the handwriting of the maker hereof.

A painstaking perusal of the testimony of the prosecution’s sole witness reveals, however, that the due
execution and authenticity of these documents were never proved. In fact, the prosecution took no
effort to prove .he due execution and authenticity of these documents during the presentation of their
sole witness. Absent such proof, these documents are incompetent as evidence. It is elementary that
this Court cannot rightly appreciate firsthand the genuineness of an unverified and unidentified
document; much less, accord it evidentiary value (People v. Sumalpong, 284 SCRA 464 [1998]). In People
v. Gamiao (240 SCRA 254 [1995]), we declared," [p]arenthetically, appellant failed to present in evidence
the originals or the xerox copies of the documents hereinbefore discussed. The requirements for the
admission of such secondary evidence in court were not satisfied. The Rules of Court provide that
private documents require proof of their due execution and authentication before they can be received
in evidence. When there is no such proof, the substitutionary documents may be excluded."cralaw
virtua1aw library

Moreover, the documents submitted are mere photocopies of the originals. Thus, they are secondary
evidence and as such are not admissible unless there is ample proof of the loss of the originals (Section 3,
Rule 130, Revised Rules of Court). However, the loss of the originals have not been proved by the
prosecution, neither have they shown that the original is a public record in the custody of a public office
or is recorded in a public office, nor that the same is in the custody or under the control of petitioners.

The due execution and authenticity of the documentary evidence presented not having been proved,
and since these are mere photocopies, the loss of the originals of which was not previously established,
the same are clearly inadmissible in evidence. Being incompetent evidence, the only evidence the
prosecution could rely on to prove petitioners’ guilt would be the sole testimony of the private
complainant. Unsupported by any other evidence, said testimony is insufficient to sustain a finding of
culpability.

Sufficient evidence for purposes of frustrating a demurrer thereto is such evidence in character, weight
or amount as will legally justify the judicial or official action demanded according to the circumstances.
To be considered sufficient, therefore, the evidence must prove: (a) the commission of the crime, and
(b) the precise degree of participation therein by the accused. In the instant case, the prosecution
miserably failed to establish by sufficient evidence the existence of the crime of estafa and other deceit.

381
Aside from complainant’s testimony, the only evidence of petitioners’ supposed complicity in the
alleged offense is the photocopy of the approval of the sale of the paper bag-making machine, said
document containing the names of petitioners Ong, Nerit, Aaliwin, and Albarracin. As stated earlier,
however, said document is inadmissible in evidence. Thus, there is no evidence as to their participation
in the crime. In fact, among the petitioners, private complainant had personal contact only with Ong,
whom she met only after the alleged approval of the sale of the machine. Having met Ong after the sale,
Ong could not have misrepresented anything to complainant to induce her to part with her money. As to
the others, not having had personal dealings with private complainant, it boggles one’s mind to even
entertain the speculation that they could have misrepresented anything to the latter.chanrob1es virtua1
1aw 1ibrary

With our ruling that the documentary evidence submitted by the prosecution is inadmissible in evidence,
the prosecution’s evidence against petitioners is grossly and patently insufficient to support a finding of
guilt. Withal, it was grave abuse of discretion for the MeTC to consider that there was a prima facie case
against petitioners warranting a trial on the merits given the paucity of evidence against petitioners.

Had said court been more punctilious and thorough in its study and preparation of the case, it could
have fully appreciated the weakness of the state evidence against petitioners, and that it was useless,
not to say a waste of time and money, but most of all unfair to the accused, to proceed with the tedious
process of trial and direct petitioners to adduce evidence in their defense, since it was obvious from the
beginning that petitioners could not be convicted of the crime charged.

In ruling against petitioners the appellate court also held that petitioners could not avail of their
constitutional right against double jeopardy, allegedly because the regional trial court’s reversal of the
MeTC denial of their demurrer to evidence is a "fruit" emerging from grave abuse of discretion. It
declared that Judge Guadiz could not decide in the special civil action filed before him whether or not
the evidence adduced by the prosecution had established beyond reasonable doubt the guilt of
petitioners, factual matters not being proper for consideration in certiorari proceedings.

It is true that the prerogative writ of certiorari does not lie to correct every controversial interlocutory
order but is confined merely to questions of jurisdiction. Its function is to keep an inferior court within
its jurisdiction and to relieve persons from arbitrary acts, meaning acts which courts or judges have no
power or authority in law to perform. It is not designed to correct procedural errors or the court’s
erroneous findings and conclusions (De Vera v. Pineda, 213 SCRA 434 [1992]).

However, certiorari can be properly resorted to where the factual findings complained of are not
supported by the evidence on record (Congregation of the Religious of the Virgin Mary v. CA, 291 SCRA
385 [1998]). As earlier observed, with the inadmissibility of the prosecution’s documentary evidence,
the trial court’s finding of a prima facie case against petitioners is glaringly unsupported by the sole
testimony of private complainant, hence the RTC resolution reversing the MeTC’s denial of the demurrer
to evidence cannot be said to be the "fruit" of grave abuse of discretion. Since the factual findings of the
MeTC are devoid of support in the evidence on record, it was proper for the RTC to review said findings.
Moreover, in order to determine whether or not there was grave abuse of discretion in denying the
demurrer to evidence, the RTC had to inquire into the admissibility and sufficiency of the documentary
and testimonial evidence submitted by the prosecution.

With the grant by the RTC of the demurrer to evidence, the same constituted a valid acquittal and any
further prosecution of petitioners on the same charge would expose them to being put twice in
jeopardy for the same offense. A dismissal of a criminal case by the grant of a demurrer to evidence is
not appealable as the accused would thereby be placed in double jeopardy (See Regalado, Remedial Law
Compendium, p. 441).

Lastly, it has been said that a wide breadth of discretion is granted a court of justice
in certiorari proceedings. The cases in which certiorari will issue cannot be defined, because to do so
would be to destroy its comprehensiveness and usefulness. So wide is the discretion of the court that
authority is not wanting to show that certiorari is more discretionary than either prohibition or
mandamus. In the exercise of our superintending control over other courts, we are to be guided by all

382
the circumstances of each particular case "as the ends of justice may require." So it is that the writ will
be granted where necessary to prevent a substantial wrong or to do substantial justice (Gutib v. CA,
supra).

The case at bar presents one such instance calling for this appropriate remedy. As discussed elsewhere,
petitioners have satisfactorily demonstrated in their demurrer that the prosecution failed to prove the
crime charged against them, hence, there remains no reason to hold them for trial. Indeed, an accused
is always presumed innocent until the contrary is proved. Parenthetically, petitioners have the right to
be protected against hasty, malicious, and oppressive prosecution; to be secure from an open and public
accusation of a crime; and, from the trouble, expenses and anxiety of a public trial. Similarly situated is
the State, which must be shielded at all times from useless and expensive litigations that only contribute
to the clogging of court dockets and take a heavy toll on its limited time and meager resources.

WHEREFORE, premises considered, the petition is GRANTED. The decision of the Court of Appeals dated
April 8,.1999 setting aside the Regional Trial Court’s resolution dated May 19, 1997, as well as
respondent appellate court’s Resolution dated November 16, 1999 denying reconsideration of its
decision, are REVERSED and SET ASIDE. The dismissal of Criminal Case No. 157290 entitled "People of
the Philippines v. Rene S. Ong, Et. Al. is AFFIRMED, without prejudice to the filing of an appropriate civil
action.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

G.R. No. 117384 October 21, 1998

HEIRS OF TEODORO DELA CRUZ represented by EDRONEL DELA CRUZ, Petitioners, vs. COURT OF
APPEALS, PACIFICO MARQUEZ, FILOMENO and GREGORIO, both surnamed MADRID, Respondents.

ROMERO, J.:

Petitioners seek the reversal of the decision of the Court of Appeals, 1 in CA G.R. No. 25339 dated
September 27, 1994 affirming the decision of the Regional Trial Court of Isabela in Civil Case No. 19-219
dated October 9, 1989 which adjudicated lot Nos. 7036-A-10-A, 7036-A-10-B and 7036-A-10-C to herein
private respondents. 2

The following facts, concisely related in the petition, 3 are not in dispute.

On November 20, 1986, petitioners filed an action for reconveyance with damages 4 against private
respondents involving a parcel of land situated in Poblacion, San Mateo, Isabela with a total area of
3,277 square meters. In their complaint, petitioners assert that the subject land was bought by their
predecessor-in-interest from the private respondents, Madrid brothers, for P4,000.00 in a deed of sale
executed on May 18, 1959, and since then they have been in actual, physical, continuous and open
possession of the property. However, sometime in October 1986, much to their dismay and surprise,
private respondents managed to obtain a Torrens Title over the said land.

On the other hand, the Madrids denied having executed the said deed of sale and assuming that said
document exists, the same is fictitious and falsified. Moreover, while they admit petitioners' possession
of the land, they assert that this possession is in defiance of their repeated demands that the former
relinquish the same. Meanwhile, Pacifico Marquez contends that he is an innocent purchaser for value
of the property having bought the same from the Madrid brothers in 1976. 5

During the trial, petitioners were unable to present the original deed of sale since it was lost.
Consequently, they were constrained to offer, as Exhibit "A," a photo copy of the purported original
carbon copy of the deed of sale in an effort to prove the transaction.

However, in disposing of the case, the trial court ruled that Exhibit "A" was inadmissible in evidence,
thus:

383
Since at the time of the execution of Teodoro dela Cruz' affidavit or on June 14, 1966, a duplicate
original carbon copy of the alleged sale was still in his possession, the plaintiffs must have to account for
it. No proof was adduced that this remaining copy was lost or destroyed. Furthermore, no attempt was
done to produce the copies retained by the notary public although there is a possibility that the same
still exist (sic). Neither was there any proof that the copy sent to the court as required by the notarial
law is unavailable. Under these (sic) state of facts, the Court believes that the "xerox copy of a certified
true copy" of the original issued by the notary public cannot be admitted in evidence to prove the
conveyance of the land in question.

Accordingly, the trial court dismissed petitioners' complaint, the dispositive portion of the decision of
which reads:

WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered:

1. Dismissing the complaint;

2. Declaring the defendants the lawful owners of the land in question insofar as the portion thereof
falling or found in their respective titles are concerned; and

3. Ordering the plaintiffs, their agents, representatives or any person or persons deriving their title,
ownership or possession from the plaintiffs, to vacate the portions of Lots 7036-A-10-A, 70360A-10-B
and 7036-A-10-C, occupied by them and to deliver the possession thereof to the defendants;

No pronouncement as to costs.

SO ORDERED.

Evidently aggrieved by the decision, petitioners appealed to the Court of Appeals contending that the
trial court erred in holding that: (1) Exhibit "A" was inadmissible in evidence to prove the transaction; (2)
there was no valid sale of the land in question; (3) that they (petitioners) are not entitled to the
improvements they had introduced in the land.

On September 27, 1994, the Court of Appeals rendered its judgment which ruled that Exhibit "A" was
admissible in evidence for failure of the private respondents to object when it was offered during the
trial, thus:

It is therefore evident that defendants-appellees never put in issue the inadmissible nature of Exh. "A"
as a mere secondary evidence and that the trial judge did not exclude the same when it was formally
offered, only to ultimately exclude it in its decision. It is true that the originals of Exh. "A" were never
produced or accounted for by plaintiffs. Yet, notwithstanding this omission, the defense did not object
to its not being the best evidence when it was formally offered. Had the defendant interposed an
objection to Exh. "A" on the ground of its incompetency for not complying with the best evidence rule, it
would have been properly excluded by the trial court. Defendants' omission to object on the proper
ground operated as a waiver, as this was a matter resting on their discretion.

Unfortunately, petitioners' victory was shortlived. For the Court of Appeals, while ruling that Exhibit "A"
was admissible, concluded that the sine had no probative value to support the allegation of the
petitioners that the disputed land was sold to them in 1959, viz.:

The lone fact that Atty. Tabangay asserted that he recognized his signature on the copy shown by
Teodoro when the loss of the originals was just made known to him, does not render Exh. "A"
trustworthly as to the actual execution of the alleged deed of sale. Exh. "A" does not even contain a
reproduction of the alleged signatures of the Madrid brothers for comparison purposes. The surviving
witness to the alleged execution, Constantino Balmoja was not presented to corroborate Atty.
Tabangay's testimony, hinged as the latter was on secondary evidence.

Hence, the Court of Appeals affirmed the trial court's decision, the dispositive portion of which reads:

384
WHEREFORE, IN VIEW OF THE FOREGOING, the decision of the trial court dated October 9, 1989 is
hereby AFFIRMED with the modification that the case be remanded to the court a quo to conduct the
proper proceedings to determine the value of the useful improvements introduced by appellants for
reimbursement by appellees.

SO ORDERED.

Failing in their bid to reconsider the decision, the petitioners have filed the present petition.

Petitioners maintain that even if Exhibit "A" were a mere photo copy of the original carbon copy, they
had presented other substantial evidence during the trial to prove the existence of the sale. 6 First, the
testimony of the notary public, Atty. Tabangay, who acknowledged the due execution of the deed of
sale. Second, their long possession of the land in question, bolstered by the construction of various
improvements gives rise to the disputable presumption of ownership.

While we concur with the Court of Appeals' finding that Exhibit "A" does not prove that the sale of the
land indeed occurred, still we are constrained to reverse its decision in view of the circumstances
present in this case.

To begin with, Atty. Sevillano Tabangay, the notary public who notarized the deed of sale, testified that
the document has about five (5) copies. 7 Hence, it is imperative that all the originals must be accounted
for before secondary evidence can be presented. 8 These petitioners failed to do. Moreover, records
show that none of these five copies was even presented during the trial. Petitioners' explanation that
these copies were lost or could not be found in the National Archives was not even supported by any
certification from the said office.

It is a well-settled principle that before secondary evidence can be presented, all duplicates and/or
counterparts must be accounted for, and no excuse for the non-production of the original document
itself can be regarded as established until all its parts are unavailable. 9

Notwithstanding this procedural lapse, when Exhibit "A" was presented private respondents failed, not
only to object, but even to cross-examine the notary public, Atty. Tabangay, regarding its
execution. 10 Forthwith, upon private respondents' failure to object to Exhibit "A" when it was presented,
the same becomes primary evidence. 11 To be sure, even if Exhibit "A" is admitted in evidence, we agree
with the Court of Appeals that its probative value must still meet the various tests by which its reliability
is to be determined. Its tendency to convince and persuade must be considered for admissibility of
evidence should not be confused with its probative value. 12

As earlier stated, Exhibit "A" was merely a photocopy lifted from the carbon copy of the alleged deed of
sale. 13 A cursory glance will immediately reveal that it was unsigned by any of the parties and undated
as to when it was executed. Worse, when Atty. Tabangay typed Exhibit "A," the contents were based on
an alleged carbon original which petitioners' predecessor-in-interest presented to him, without
bothering to check his own files to verify the correctness of the contents of the document he was
copying. In other words, Atty. Tabangay's failure to determine the accuracy of the carbon copy
requested by the petitioners' predecessor-in-interest renders Exhibit "A" unreliable.

However, despite our prescinding discussion, all is not lost for the petitioner.

The records show that the disputed petitioners since 1959. They have since been introducing several
improvements on the land which certainly could not have escaped the attention of the Madrids.
Furthermore, during all this time, the land was enclosed, thus signifying petitioners' exclusive claim of
ownership. The construction of various infrastructure on the land - rice mill, storage house, garage,
pavements and other buildings - was undoubtedly a clear exercise of ownership which the Madrids
could not ignore. Oddly, not one of them protested.

We cannot accept the Madrids' explanation that they did not demand the petitioners to vacate the land
due to the unexplained killings within the area. 14 Not a single shred of evidence was presented to show
that these killings were perpetrated by the petitioners. All told, their remonstration and fears are

385
nothing but pure speculation. To make matters worse, the record is bereft of any documentary evidence
that the Madrids sent a written demand to the petitioners ordering them to vacate the land. Their
failure to raise a restraining arm or a shout of dissent to the petitioners' possession of the subject land in
a span of almost thirty (30) years is simply contrary to their of ownership.

Next, the Madrids argue that neither prescription nor laches can operate against them because their
title to the property is registered under the Torrens system and therefore imprescriptable. 15 The
principle raised, while admittedly correct, are not without exception. The fact that the Madrids were
able to secure TCT No. 167250, and Marquez, TCT Nos. 167220 and 167256, did not operate to vest
upon them ownership of the property. The Torrens system does not create or vest title. It has never
been recognized as a mode of acquiring ownership, 16 especially considering the fact that both the
Madrids and Marquezes obtained their respective TCT's only in October 1986, twenty-seven long (27)
years after petitioners first took possession of the land. If the Madrids and Marquezes wished to assert
their ownership, they should have filed a judicial action for recovery of possession and not merely to
have the land registered under their respective names. For as earlier mentioned, Certificates of Title do
not establish ownership. 17

Even if we were to rule that the Certificates of Title to the private respondents would ripen into
ownership of the land, and therefore, the defense of prescription would be unavailing, still, the
petitioners would have acquired title to it by virtue of the equitable principle of laches. The Madrids'
long inaction or passivity in asserting their rights over disputed property will preclude them from
recovering the same. 18

The above ruling was stressed in the following cases:

Miguel v. Catalino 19 declared:

Notwithstanding the errors aforementioned in the appealed decision, we are of the opinion that the
judgment in favor of defendant-appellee Florencio Catalino must be sustained. For despite the invalidity
of his sale to Catalino Agyapao, father of defendant-appellee, the vendor Bacaquio suffered the latter to
enter, possess and enjoy the land in question without protest, from 1928 to 1943, when the seller died;
and the appellants, in turn, while succeeding the deceased, also remained inactive, without taking any
step to reinvindicate the lot from 1944 to 1962, when the present suit was commenced in court. Even
granting appellants' proposition that no prescription lies against their father's recorded title, their
passivity and inaction for more than 34 years (1928-1962) justifies the defendant-appellee in setting up
the equitable defense of laches in his own behalf. As a result, the action of plaintiffs-appellants must be
considered barred and the Court below correctly so held. Courts can not look with favor at parties who,
by their silence, delay and inaction, knowingly induce another to spend time, effort and expense in
cultivating the land, paying taxes and making improvements thereon for 30 long years, only to spring
from ambush and claim title when the possessor's efforts and the rise of land values offer an
opportunity to make easy profit at his expense. . . . .

Pabalete v. Echarri 20 stated:

Upon a careful consideration of the facts and circumstances, we are constrained to find, however, that
while no legal defense to the action lies, an equitable one lies in favor of the defendant and that is, the
equitable defense of laches. We hold that the defense of prescription or adverse possession in
derogation of the title of the registered owner Domingo Mejia does not lie, but that of the equitable
defense of laches. Otherwise stated, we hold that while defendant may not be considered as having
acquired title by virtue of his and his predecessor's long continued possession for 37 years, the original
owner's right to recover back the possession of the property and the title thereto from the defendant
has, by the long period of 37 years and by patentee's inaction and neglect been converted into a stale
demand. (Quoting Mejia de Lucas v. Gamponia, 100 Phil. 277).

xxx xxx xxx

This defense is an equitable one and does not concern itself with the character of the defendant's title,
but only with whether or not by reason of the plaintiff's long inaction or inexcusable neglect he should

386
be barred from asserting this claim at all, because to allow him to do so would be inequitable and unjust
to the defendant. . . .

Lastly, Marquez' claim that he is a purchaser in good faith and for value does not inspire any merit. In his
testimony, he admitted that he knew the land in question. 21 Curiously, in his Answer 22 to the complaint
filed by the petitioners, he stated that he has been aware that the former were in possession of the land
since 1959. Where a purchaser was fully aware of another person's possession of the lot he purchased,
he cannot successfully pretend later to be an innocent purchaser for value. 23 Moreover, one who buys
without checking the vendor's title takes all the risks and losses consequent to such failure. 24

In fact, it would have been expected that in the normal course of daily life, both the Madrids and
Marquezes talked about the status of the property. This being so, it would be difficult to imagine that
the latter were not made aware of the petitioner's possession of the land. Armed with such information,
they should have acted with the diligence of a prudent man in determining the circumstances
surrounding the property. Otherwise, the law does not give him the benefit afforded to an innocent
purchaser for value. 25

WHEREFORE, in view of the foregoing, the decision of the Court of Appeals dated September 24, 1994 in
CA-G.R. No. 25339 is hereby REVERSED and SET ASIDE. Instead, petitioners are hereby declared as the
legal owners of the subject land. No costs.

SO ORDERED.

Narvasa, C.J., Kapunan, Purisima and Pardo, JJ., concur.

G.R. No. 109172 August 19, 1994

TRANS-PACIFIC INDUSTRIAL SUPPLIES, INC., petitioner,

vs.
The COURT OF APPEALS and ASSOCIATED BANK, respondents.

Gancayco Law Offices for petitioners.

Jose A. Soluta, Jr. & Associates for private respondent.

BIDIN, J.:

In this petition for review on certiorari, petitioner Trans-Pacific Industrial Supplies, Inc. seeks the
reversal of the decision of respondent court, the decretal portion of which reads:

WHEREFORE, the decision of June 11, 1991 is SET ASIDE and NULLIFIED; the complaint is
dismissed, and on the counterclaim, Transpacific is ordered to pay Associated attorney's
fees of P15,000.00.

Costs against Transpacific.

SO ORDERED. (Rollo, p. 47)

Sometime in 1979, petitioner applied for and was granted several financial accommodations amounting
to P1,300,000.00 by respondent Associated Bank. The loans were evidenced and secured by four (4)
promissory notes, a real estate mortgage covering three parcels of land and a chattel mortgage over
petitioner's stock and inventories.

Unable to settle its obligation in full, petitioner requested for, and was granted by respondent bank, a
restructuring of the remaining indebtedness which then amounted to P1,057,500.00, as all the previous
payments made were applied to penalties and interests.

387
To secure the re-structured loan of P1,213,400.00, three new promissory notes were executed by Trans-
Pacific as follows: (1) Promissory Note No. TL-9077-82 for the amount of P1,050,000.00 denominated as
working capital; (2) Promissory Note No. TL-9078-82 for the amount of P121,166.00 denominated as
restructured interest; (3) Promissory Note No. TL-9079-82 for the amount of P42,234.00 denominated
similarly as restructured interest (Rollo. pp. 113-115).

The mortgaged parcels of land were substituted by another mortgage covering two other parcels of land
and a chattel mortgage on petitioner's stock inventory. The released parcels of land were then sold and
the proceeds amounting to P1,386,614.20, according to petitioner, were turned over to the bank and
applied to Trans-Pacific's restructured loan. Subsequently, respondent bank returned the duplicate
original copies of the three promissory notes to Trans-Pacific with the word "PAID" stamped thereon.

Despite the return of the notes, or on December 12, 1985, Associated Bank demanded from Trans-
Pacific payment of the amount of P492,100.00 representing accrued interest on PN No. TL-9077-82.
According to the bank, the promissory notes were erroneously released.

Initially, Trans-Pacific expressed its willingness to pay the amount demanded by respondent bank. Later,
it had a change of heart and instead initiated an action before the Regional Trial Court of Makati, Br. 146,
for specific performance and damages. There it prayed that the mortgage over the two parcels of land
be released and its stock inventory be lifted and that its obligation to the bank be declared as having
been fully paid.

After trial, the court a quo rendered judgment in favor of Trans-Pacific, to wit:

WHEREFORE, premises considered and upon a clear preponderance of evidence in

support of the stated causes of action, the Court finds for the plaintiffs and against
defendant, and

(a) declares plaintiff's obligations to defendant to have been already

fully paid;

(b) orders defendant to execute and deliver to plaintiffs a release on

the i September 11, 1981 mortgage over TCT (50858)
S-10086 and TCT (50859) S-109087, and ii December 20, 1983 chattel
mortgage, within fifteen (15) days from the finality hereof;

(c) orders defendant to pay plaintiffs Romeo Javier and Romana

Bataclan-Javier the sum of P50,000.00 as and for moral damages; and

(d) orders defendant to pay plaintiffs the sum of P30,000.00 as

attorney's fees, plus expenses of the suit.

Defendant's counterclaims are dismissed for lack of merit.

With costs against defendant.

SO ORDERED. (Rollo, p. 101)

Respondent bank elevated the case to the appellate court which, as aforesaid, reversed the decision of
the trial court. In this appeal, petitioner raises four errors allegedly committed by the respondent court,
namely:

RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT THE ACCRUED INTEREST IN

THE AMOUNT OF 492,100.00 HAS NOT BEEN PAID WHEN ARTICLE 1176 OF THE CIVIL
CODE PROVIDES THAT SUCH CLAIM FOR INTEREST UPON RECEIPT OF PAYMENT OF THE
PRINCIPAL MUST BE RESERVED OTHERWISE IT IS DEEMED PAID.

388
 II

RESPONDENT APPELLATE COURT ERRED IN HOLDING THAT WITH THE DELIVERY OF THE
DOCUMENTS EVIDENCING THE PRINCIPAL OBLIGATION, THE ANCILLARY OBLIGATION OF
PAYING INTEREST WAS NOT RENOUNCED CONTRARY TO THE PROVISIONS OF ART. 1273
OF THE CIVIL CODE AND THE UNDISPUTED EVIDENCE ON RECORD.

III

RESPONDENT APPELLATE COURT ERRED IN NOT HOLDING THAT PETITIONER HAS FULLY
PAID ITS OBLIGATION CONFORMABLY WITH ARTICLE 1234 OF THE CIVIL CODE.

IV

RESPONDENT APPELLATE COURT ERRED IN AWARDING ATTORNEY'S FEES IN FAVOR OF

ASSOCIATED BANK (Rollo, p. 15).

The first three assigned errors will be treated jointly since their resolution border on the common issue,
i.e., whether or not petitioner has indeed paid in full its obligation to respondent bank.

Applying the legal presumption provided by Art. 1271 of the Civil Code, the trial court ruled that
petitioner has fully discharged its obligation by virtue of its possession of the documents (stamped
"PAID") evidencing its indebtedness. Respondent court disagreed and held, among others, that the
documents found in possession of Trans-Pacific are mere duplicates and cannot be the basis of
petitioner's claim that its obligation has been fully paid. Accordingly, since the promissory notes
submitted by petitioner were duplicates and not the originals, the delivery thereof by respondent bank
to the petitioner does not merit the application of Article 1271 (1st par.) of the Civil Code which reads:

Art. 1271. The delivery of a private document evidencing a credit, made voluntarily by
the creditor to the debtor, implies the renunciation of the action which the former had
against the latter.

Respondent court is of the view that the above provision must be construed to mean the original copy
of the document evidencing the credit and not its duplicate, thus:

. . . [W]hen the law speaks of the delivery of the private document evidencing a credit, it
must be construed as referring to the original. In this case, appellees (Trans-Pacific)
presented, not the originals but the duplicates of the three promissory notes." (Rollo, p.
42)

The above pronouncement of respondent court is manifestly groundless. It is undisputed that the
documents presented were duplicate originals and are therefore admissible as evidence. Further, it
must be noted that respondent bank itself did not bother to challenge the authenticity of the duplicate
copies submitted by petitioner. In People vs. Tan, (105 Phil. 1242 [1959]), we said:

When carbon sheets are inserted between two or more sheets of writing paper so that
the writing of a contract upon the outside sheet, including the signature of the party to
be charged thereby, produces a facsimile upon the sheets beneath, such signature being
thus reproduced by the same stroke of pen which made the surface or exposed
impression, all of the sheets so written on are regarded as duplicate originals and either
of them may be introduced in evidence as such without accounting for the
nonproduction of the others.

A duplicate copy of the original may be admitted in evidence when the original is in the possession of
the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice
(Sec. 2[b], Rule 130), as in the case of respondent bank.

389
This notwithstanding, we find no reversible error committed by the respondent court in disposing of the
appealed decision. As gleaned from the decision of the court a quo, judgment was rendered in favor of
petitioner on the basis of presumptions, to wit:

The surrender and return to plaintiffs of the promissory notes evidencing the
consolidated obligation as restructured, produces a legal presumption that Associated
had thereby renounced its actionable claim against plaintiffs (Art. 1271, NCC). The
presumption is fortified by a showing that said promissory notes all bear the stamp
"PAID", and has not been otherwise overcome. Upon a clear perception that
Associated's record keeping has been less than exemplary . . ., a proffer of bank copies
of the promissory notes without the "PAID" stamps thereon does not impress the Court
as sufficient to overcome presumed remission of the obligation vis-a-vis the return of
said promissory notes. Indeed, applicable law is supportive of a finding that in interest
bearing obligations-as is the case here, payment of principal (sic) shall not be deemed to
have been made until the interests have been covered (Art. 1253, NCC). Conversely,
competent showing that the principal has been paid, militates against postured
entitlement to unpaid interests.

In fine. the Court is satisfied that plaintiffs must be found to have settled their
obligations in full.

As corollary, a finding is accordingly compelled that plaintiffs (sic) accessory obligations

under the real estate mortgage over two (2) substituted lots as well as the chattel
mortgage, have been extinguished by the renunciation of the principal debt (Art. 1273,
NCC), following the time-honored axiom that the accessory follows the principal. There
is, therefore, compelling warrant (sic) to find in favor of plaintiffs insofar as specific
performance for the release of the mortgages on the substituted lots and chattel is
concerned. (Rollo, p. 100)

premised by:

Records show that Associated's Salvador M. Mesina is on record as having testified that
all three (3) December 8, 1990 promissory notes for the consolidated principal
obligation, interest and penalties had been fully paid (TSN, July 18, 1990, p. 18). It is,
moreover, admitted that said promissory notes were accordingly returned to Romeo
Javier. (Ibid.)

The above disquisition finds no factual support, however, per review of the records. The presumption
created by the Art. 1271 of the Civil Code is not conclusive but merely prima facie. If there be no
evidence to the contrary, the presumption stands. Conversely, the presumption loses its legal efficacy in
the face of proof or evidence to the contrary. In the case before us, we find sufficient justification to
overthrow the presumption of payment generated by the delivery of the documents evidencing
petitioners indebtedness.

It may not be amiss to add that Article 1271 of the Civil Code raises a presumption, not of payment, but
of the renunciation of the credit where more convincing evidence would be required than what
normally would be called for to prove payment. The rationale for allowing the presumption of
renunciation in the delivery of a private instrument is that, unlike that of a public instrument, there
could be just one copy of the evidence of credit. Where several originals are made out of a private
document, the intendment of the law would thus be to refer to the delivery only of the
original original rather than to the original duplicate of which the debtor would normally retain a copy. It
would thus be absurd if Article 1271 were to be applied differently.

While it has been consistently held that findings of facts are not reviewable by this Court, this rule does
not find application where both the trial and the appellate courts differ thereon (Asia Brewery, Inc. v. CA,
224 SCRA 437 [1993]).

390
Petitioner maintains that the findings of the trial court should be sustained because of its advantage in
observing the demeanor of the witnesses while testifying (citing Crisostomo v. Court of Appeals, 197
SCRA 833) more so where it is supported by the records (Roman Catholic Bishop of Malolos v. Court of
Appeals, 192 SCRA 169).

This case, however, does not concern itself with the demeanor of witnesses. As for the records, there is
actually none submitted by petitioner to prove that the contested amount, i.e., the interest, has been
paid in full. In civil cases, the party that alleges a fact has the burden of proving it (Imperial Victory
Shipping Agency v. NLRC 200 SCRA 178 [1991]). Petitioner could have easily adduced the receipts
corresponding to the amounts paid inclusive of the interest to prove that it has fully discharged its
obligation but it did not.

There is likewise nothing on the records relied upon by the trial court to support its claim, by empirical
evidence, that the amount corresponding to the interest has indeed been paid. The trial court totally
relied on a disputable presumption that the obligation of petitioner as regards interest has been fully
liquidated by the respondent's act of delivering the instrument evidencing the principal obligation.
Rebuttable as they are, the court a quo chose to ignore an earlier testimony of Mr. Mesina anent the
outstanding balance pertaining to interest, as follows:

Court:

Q Notwithstanding, let us go now specifically to promissory note No.

9077-82 in the amount of consolidated principal of P1,050,000.00. Does
the Court get it correctly that this consolidated balance has been fully
paid?

A Yes, the principal, yes, sir.

Q Fully settled?

A Fully settled, but the interest of that promissory note has not been
paid, Your Honor.

Q In other words, you are saying, fully settled but not truly fully settled?

A The interest was not paid.

Q Not fully settled?

A The interest was not paid, but the principal obligation was removed
from our books, Your Honor.

Q And you returned the promissory note?

A We returned the promissory note. (TSN, July 18, 1990, p. 22)

That petitioner has not fully liquidated its financial obligation to the Associated Bank finds more than
ample confirmation and self-defeating posture in its letter dated December 16, 1985, addressed to
respondent bank, viz.:

. . . that because of the prevailing unhealthy economic conditions, the business is unable
to generate sufficient resources for debt servicing.

Fundamentally on account of this, we propose that you permit us to fully liquidate the
remaining obligations to you of P492,100 through a payment in kind (dacion en pago)
arrangement by way of the equipments (sic) and spare parts under chattel mortgage to
you to the extent of their latest appraised values." (Rollo, pp. 153-154; Emphasis
supplied)

391
 Followed by its August 20, 1986 letter which reads:

We have had a series of communications with your bank regarding our proposal for the
eventual settlement of our remaining obligations . . .

As you may be able to glean from these letters and from your credit files, we have
always been conscious of our obligation to you which had not been faithfully serviced on
account of unfortunate business reverses. Notwithstanding these however, total
payments thus far remitted to you already exceede (sic) the original principal amount of
our obligation. But because of interest and other charges, we find ourselves still
obligated to you by P492,100.00. . . .

. . . We continue to find ourselves in a very fluid (sic) situation in as much as the overall
outlook of the industry has not substantially improved. Principally for this reason, we
had proposed to settle our remaining obligations to you by way of dacion en pago of the
equipments (sic) and spare parts mortgaged to you to (the) extent of their applicable
loan values. (Rollo, p. 155; Emphasis supplied)

Petitioner claims that the above offer of settlement or compromise is not an admission that anything is
due and is inadmissible against the party making the offer (Sec. 24, Rule 130, Rules of Court).
Unfortunately, this is not an iron-clad rule.

To determine the admissibility or non-admissibility of an offer to compromise, the circumstances of the

case and the intent of the party making the offer should be considered. Thus, if a party denies the
existence of a debt but offers to pay the same for the purpose of buying peace and avoiding litigation,
the offer of settlement is inadmissible. If in the course thereof, the party making the offer admits the
existence of an indebtedness combined with a proposal to settle the claim amicably, then, the admission
is admissible to prove such indebtedness (Moran, Comments on the Rules of Court, Vol. 5, p. 233 [1980
ed.); Francisco, Rules of Court, Vol. VII, p. 325 [1973 ed.] citing McNiel v. Holbrook, 12 Pac. (US) 84, 9
L.ed. 1009). Indeed, an offer of settlement is an effective admission of a borrower's loan balance (L.M.
Handicraft Manufacturing Corp. v. Court of Appeals, 186 SCRA 640 [1990]). Exactly, this is what
petitioner did in the case before us for review.

Finally, respondent court is faulted in awarding attorney's fees in favor of Associated Bank. True,
attorney's fees may be awarded in a case of clearly unfounded civil action (Art. 2208 [4], CC). However,
petitioner claims that it was compelled to file the suit for damages in the honest belief that it has fully
discharged its obligations in favor of respondent bank and therefore not unfounded.

We believe otherwise. As petitioner would rather vehemently deny, undisputed is the fact of its
admission regarding the unpaid balance of P492,100.00 representing interests. It cannot also be denied
that petitioner opted to sue for specific performance and damages after consultation with a lawyer
(Rollo, p. 99) who advised that not even the claim for interests could be recovered; hence, petitioner's
attempt to seek refuge under Art. 1271 (CC). As previously discussed, the presumption generated by Art.
1271 is not conclusive and was successfully rebutted by private respondent. Under the circumstances,
i.e., outright and honest letters of admission vis-a-vis counsel-induced recalcitrance, there could hardly
be honest belief. In this regard, we quote with approval respondent court's observation:

The countervailing evidence against the claim of full payment emanated from
Transpacific itself. It cannot profess ignorance of the existence of the two letters, Exhs. 3
& 4, or of the import of what they contain. Notwithstanding the letters, Transpacific
opted to file suit and insist(ed) that its liabilities had already been paid. There was thus
an
ill-advised attempt on the part of Transpacific to capitalize on the delivery of the
duplicates of the promissory notes, in complete disregard of what its own records show.
In the circumstances, Art. 2208 (4) and (11) justify the award of attorney's fees. The sum
of P15,000.00 is fair and equitable. (Rollo, pp. 46-47)

WHEREFORE, the petition is DENIED for lack of merit. Costs against petitioner.

392
SO ORDERED.

Feliciano, Romero, Melo and Vitug, JJ., concur.

[G.R. Nos. 64129-31. November 18, 1991.]

FERMINA RAMOS, Petitioner, v. THE COURT OF APPEALS AND THE PEOPLE OF THE
PHILIPPINES, Respondents.

Simeon N. Millan, Jr. for Petitioner.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FACTUAL FINDINGS OF TRIAL COURT AND COURT OF APPEALS; RULE. —
Well-settled is the rule that factual findings made by the trial court, as well as those of the Court of
Appeals, are entitled to great weight and respect.

2. ID.; ID.; AUDIT WORKSHEETS AND XEROX COPIES OF DISHONORED CHECKS; MAY BE CONSIDERED AS
BEST EVIDENCE; CASE AT BAR. — We see no error on the part of the trial judge in admitting the
testimony of the bank auditor Elrey Ramos based on the worksheets he prepared in the process of his
investigation regarding the unauthorized DAUD extended by the petitioner to her co-accused. These
worksheets, as correctly pointed out by the Solicitor General, are organized data culled from the
pertinent bank documents which are not intended to supplant the probative value of said documents.
But together with the other evidence presented such as the account ledgers of petitioner’s co-accused,
a number of inter-office correspondence between the petitioner and her superiors as well as the xerox
copies of the uncleared checks deposited to the FSB and the checks issued by the latter corresponding
to the withdrawals against said uncleared checks, they present indubitable proof that DAUD was
allowed by petitioner even after that practice was prohibited. Besides, these documents and the
testimony of another prosecution witness Francisco Juele, Jr., an employee of the FSB, Tagum Branch,
corroborate with each other. From the material dates, the amount involved, the check numbers and the
names of the different depository banks, to the signatures of the parties involved, especially that of the
signature of the herein petitioner as the approving officer, the authenticity of these documents is
apparent. Moreover, the entries in the account ledgers of the depositors which are on file on the bank
may be regarded as originals under paragraph c, Section 4, Rule 130 of the Rules of Court.

3. CRIMINAL LAW; ESTAFA WITH UNFAITHFULNESS OR ABUSE OF CONFIDENCE; ESTABLISHED IN CASE

AT BAR. — As correctly ruled by the respondent court, the Regional Trial Court erred in convicting the
petitioner under Article 365 (criminal negligence) in connection with Article 315, of the Revised Penal
Code, instead of under Article 315, solely, as co-principal. The pertinent portion of the respondent
court’s decision reads: "The crime committed by the accused was estafa with unfaithfulness or abuse of
confidence under Article 315 subparagraph 1(b) of the Revised Penal Code, in that she conspired and
cooperated with her co-accused to defraud the bank by allowing them to withdraw funds of the bank
against their worthless check deposits. Her cooperation was intentional, deliberate and malicious, not
unwitting or merely negligent."cralaw virtua1aw library

4. ID.; CONSPIRACY; NEED NOT BE SHOWN BY DIRECT PROOF. — It is well-settled that direct proof is not
essential to show conspiracy. It need not be shown that the parties actually came together and agreed
in expressed terms to enter in and pursue a common design. The existence of the assent of minds which
is involved in a conspiracy may be, and, from the secrecy of the crime, usually must be, inferred by the
court from proof of facts and circumstances which, taken together, apparently indicate that they are
merely parts of some complete whole.

DECISION

393
MEDIALDEA, J.:

This is a petition for review on certiorari of the November 9, 1982 decision of the Court of Appeals in CA-
G.R. Nos. 23626-CR; 23627-CR; and 23628-CR entitled "People of the Philippines v. Fermina Ramos,
Lourdes Orpiano and Mariano Barreto;" "People of the Philippines v. Fermina Ramos, Lourdes Gonzales,
Francisco Gonzales and Mariano Barreto;" and "People of the Philippines v. Fermina Ramos, Lourdes
Gonzales, Francisco Gonzales, alias ‘E. Rivera’ and John Doe," respectively, which affirmed with
modifications the judgments of the Court of First Instance (now Regional Trial Court) of Tagum, Davao,
Branch IX, presided by Judge Felix L. Moya, by finding her guilty as co-principal of the crime of estafa
with unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) of the Revised Penal
Code instead of estafa thru reckless negligence. The dispositive portion of the Court of Appeals’ decision
reads as follows:jgc:chanrobles.com.ph

"WHEREFORE, the judgments of the trial court in Crim. Cases Nos. 3349, 3350 and 3351 finding the
accused Fermina Ramos guilty beyond reasonable doubt, as principal, in the commission of the crime of
estafa is hereby affirmed, but with modification of the penalties imposed upon her as
follows:jgc:chanrobles.com.ph

"In Criminal Case No. 3349, she is hereby sentenced to suffer an indeterminate penalty of imprisonment
ranging from five (5) years of prision correcional maximum, as minimum, to eight (8) years of prision
mayor, as maximum, with the accessory penalties provided by law, and to pay the costs."cralaw
virtua1aw library

"In Criminal Cases Nos. 3350 and 3351, she is sentenced to suffer in each case an indeterminate penalty
of imprisonment ranging from two (2) years of prision correcional minimum, as minimum, to five (5)
years of prison correcional maximum, as maximum, with the accessory penalties provided by law, and to
pay the costs.chanrobles virtual lawlibrary

"SO ORDERED." (Rollo, pp. 37-33)

The three (3) informations under which the herein petitioner was prosecuted and later on found
criminally liable read as follows:chanrob1es virtual 1aw library

Criminal Case No. 3349:jgc:chanrobles.com.ph

"x x x

"That on or about May 19, 1976, in the Municipality of Tagum, Davao, Philippines, and within the
jurisdiction of this Court, the herein accused, conspiring, confederating and helping one another,
intentionally, feloniously and criminally, with deceit and intent to defraud the Family Savings Bank,
Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of the offended bank (Family
Savings Bank), authorized one of her co-accused, LOURDES ORPIANO, to withdraw and was paid right
there and then on May 19, 1976, in RCBC Check (Tagum) No. 85297, the payee of the same is the
accused LOURDES ORPIANO, which she subsequently endorsed it to her co-accused Mariano Barretto, in
the sum of TWENTY-EIGHT THOUSAND (P28,000.00) PESOS, against her uncollected and uncleared check
deposit, whose drawer is Lourdes Orpiano, PCIB DVO Check No. 77946 in the sum of TWENTY-EIGHT
THOUSAND (P28,000.00) PESOS, and when said PCIB DVO Check was presented by the Family Savings
Bank thru their Depository Bank for clearing, the same was dishonored by the Drawee Bank, to the
damage and prejudice of the Family Savings Bank in the aforestated sum.

"Contrary to law.

Criminal Case No. 3350:cralawnad

"x x x

"That on or about May 19, 1976, in the Municipality of Tagum, Davao, Philippines, and within the

394
jurisdiction of this Court, the herein accused, conspiring, confederating and helping one another,
intentionally, feloniously and criminally, with deceit and with intent to defraud the Family Savings Bank,
Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of the offended bank (Family
Savings Bank), allowed one of her co-accused, LOURDES GONZALES, to withdraw and was paid right then
and there on May 19, 1976, in BPI TAG Check No. 85325 in the amount of P20,440.00, the payee of the
same is ‘Cash,’ which was subsequently deposited in the Rizal Commercial Banking Corporation, Tagum
Branch, Tagum, Davao, in the savings account of accused MARIANO BARRETTO No. 6838, against her
uncollected and uncleared check deposit (Joint Savings Account of accused-spouses Francisco Gonzales
and Lourdes Gonzales), whose drawer is LOURDES GONZALES, BPI TAG Check No. 100190 in the sum of
THIRTY EIGHT THOUSAND FOUR HUNDRED (P38,400.00) PESOS, and when said BPI TAG Check was
presented by the Family Savings Bank thru their Depository Bank for clearing, the same was dishonored
by the Drawee Bank, to the damage and prejudice of the Family Savings Bank in the aforestated sum.

"Contrary to law."cralaw virtua1aw library

Criminal Case No. 3351:jgc:chanrobles.com.ph

"x x x

"That on or about May 19, 1976, in the Municipality of Tagum, Davao, Philippines, and within the
jurisdiction of this Court, the herein accused, conspiring, confederating and helping one another,
intentionally, feloniously and criminally, with deceit and with intent to defraud the Family Savings Bank,
Tagum Branch, Tagum, Davao, FERMINA RAMOS, the then Manager of the offended bank (Family
Savings Bank), allowed one of her co-accused, LOURDES GONZALES, to withdraw and was paid right then
and there on May 19, 1976, in BPI TAG Check No. 241132 in the amount of P18,560.00, the payee of the
same is ‘Cash,’ which was subsequently deposited in the Rizal Commercial Banking Corporation, Tagum
Branch, Tagun, Davao, in the savings account of accused FERMINA RAMOS No. 6835, against her
uncollected and uncleared check deposit (Joint Savings Account of accused-spouses Francisco Gonzales
and Lourdes Gonzales), whose drawer is alias "E. RIVERA," RCBC CAG Check No. 1868051 in the sum of
THIRTY-NINE THOUSAND (P39,000.00) PESOS, and when said RCBC CAG Check was presented by the
Family Savings Bank thru their Depository Bank for clearing, the same was dishonored by the Drawee
Bank, to the damage and prejudice of the Family Savings Bank in the aforestated sum.

"Contrary to law."cralaw virtua1aw library

The foregoing criminal charges were among the twenty-three (23) criminal charges filed by the
Provincial Fiscal of Davao against the petitioner and her other co-accused, four (4) of which were
dismissed for lack of basis, six (6) were dismissed for insufficiency of evidence, and ten (10) were
dismissed with the trial court finding that the Family Savings Bank (FSB) had no cause to complain
because the acts complained of were found to have been done with the knowledge and consent of the
higher ranking bank officials.

In three separate decisions, the trial court convicted petitioner Ramos not of the charges alleged in the
complaint but of three (3) counts of Estafa Thru Reckless Imprudence, thus:chanrob1es virtual 1aw
library

Criminal Case No. 3349:jgc:chanrobles.com.ph

"WHEREFORE, finding accused FERMINA RAMOS GUILTY beyond reasonable doubt of the crime of Estafa
Thru Reckless Imprudence under Art. 365 of the Revised Penal Code, in conjunction with Art. 615 (1st) of
the same Code, she is ordered to serve an indeterminate sentence of SIX (6) MONTHS, maximum period
of arresto mayor, as minimum penalty, to ONE (1) YEAR and ONE (1) DAY, minimum period of prision
correccional, as maximum penalty; to suffer all the accessory penalties provided by law; and to pay the
costs of this suit.chanrobles.com:cralaw:red

"Since a separate civil action is pending, the court shall not order civil restitution."cralaw virtua1aw
library

395
"SO ORDERED."cralaw virtua1aw library

Criminal Case No. 3350:jgc:chanrobles.com.ph

"WHEREFORE, finding accused FERMINA RAMOS GUILTY beyond reasonable doubt of the crime of Estafa
Thru Reckless Imprudence under Art. 365 (1st) of the same code, she is ordered to serve an
indeterminate sentence of SIX (6) MONTHS, maximum period of arresto mayor, as minimum penalty, to
ONE (1) YEAR and ONE (1) DAY, minimum period of prision correccional, as maximum penalty; to suffer
all the accessory penalties provided by law; and to pay the costs of this suit.

"Since a separate civil action is pending, the court shall not order civil restitution.

"SO ORDERED."cralaw virtua1aw library

Criminal Case No. 3351:jgc:chanrobles.com.ph

"WHEREFORE, finding, Accused FERMINA RAMOS GUILTY beyond reasonable doubt of the crime of
Estafa Thru Reckless Imprudence under Art. 365 of the Revised Penal Code in conjunction with Art. 315
(1st) of the same code, she is ordered to serve an indeterminate sentence of SIX (6) MONTHS, maximum
period of arresto mayor, as minimum penalty, to ONE (1) YEAR and ONE (1) DAY, minimum period of
prision correccional, as maximum penalty; to suffer all the accessory penalties provided by law; and to
pay the costs of this suit.

"Since a separate civil action is pending, the court shall not order civil restitution.

"SO ORDERED."cralaw virtua1aw library

From the records, the facts are as follows:chanrob1es virtual 1aw library

On January 27, 1976, petitioner Fermina Ramos was designated Acting Branch Manager of the FSB in
Tagum, Davao due to the transfer of the then branch manager, Mr. Johnny Cuan, to another branch. She
was appointed branch manager effective February 16, 1976 which position she held until the middle of
June of the same year. During the term of her predecessor Mr. Cuan, as branch manager of Tagum, the
latter was authorized by the bank’s Assistant Vice President Gerry Ramirez of the FSB, Cebu City to allow
the drawing against uncleared check deposits (DAUD) to certain clients of the bank. Apparently, this
practice was in violation of the bank’s operation manual (O.M.S. No. 2:07), the pertinent provisions of
which provide:jgc:chanrobles.com.ph

"All withdrawals must be approved and signed by the authorized officer of every branch designated by
the Board of Directors. Authority to approve withdrawals below P200 may be given by the VP in charge.

"The officer in charge of approving the withdrawal should verify that:jgc:chanrobles.com.ph

"1) The amount being withdrawn is ‘available’ for withdrawal. This means that the balance of the
account is sufficient and is not against a check deposit which is not yet cleared.

"In case it is against a check which is presumed to be cleared having been deposited for more than three
(3) commercial banking days and with no notice of return, inorder (sic) to exercise more care, further
verification may be made from depository bank and our check registry as to date of deposit, clearance,
etc. in order to be doubly sure that the check deposited was good." (Records, Exhibit D).

"x x x."cralaw virtua1aw library

During the term of the herein petitioner, she received an order to stop DAUD which brought about the
following quoted telegram sent by her on March 30, 1976 to AVP Ramirez:jgc:chanrobles.com.ph

"AVP GERRY RAMIREZ

396
FAMILY SAVINGS BANK

CEBU CITY

"I HAVE FOLLOWED YOUR ORDER TO STOP DAUD. BUT MANY CANNOT COVER-UP THEIR OD AS OF NOW.
WHICH WOULD BE BETTER TO ISSUE PN AS PER LILIAN’S (DE LEON) ADVICE OR TO CONTINUE GIVING
ACCOMMODATION UNTIL CLIENT CAN LIQUIDATE SIR, THE GIVING OF ACCOMMODATION AS YOU
KNOW IS NOT MY DOING, MINE IS ONLY A CONTINUATION OF THE PAST MANAGEMENT AND NOW
THAT I TRIED TO STOP THIS IS THE EFFECT, IN CASE OFFICERS WILL BE THE ONE TO ANSWER FOR THIS
I’LL ANSWER ONLY THOSE ACCOMMODATION WHICH ORIGINATED ON MY TERM OF MANAGEMENT.
THANK YOU." (Records, Exhibit 4)

On April 1, 1976, petitioner received VP Ramirez’ response, to wit:jgc:chanrobles.com.ph

"REUR TELEGRAM DATED MARCH 31 I AGREE WITH YOU WITH REGARDS TO THE RESPONSIBILITY OF THE
PAST MANAGEMENT BECAUSE I HAVE THE IMPRESSION THAT ALL THESE PRACTICES HAD BEEN
DISCONTINUED BEFORE YOUR ASSUMPTION AS MANAGER PLEASE FOLLOW AS INSTRUCTED BY LILIAN I
SHALL BE THERE BEFORE APRIL 9." (Records, Exhibit 5)

It appears that the accused, in violation of the bank’s policy and without authority from either Ramirez
or De Leon, not only continued to grant DAUD accommodations to old depositors who had enjoyed such
privilege under her predecessors, but also extended the same privilege to new clients of the bank.
Among those new clients were Lourdes Orpiano, her co-accused in Crim. Case No. 3349, and the
spouses Lourdes and Francisco Gonzales, her co-accused in Crim. Cases Nos. 3350 and 3351.chanrobles
virtual lawlibrary

Hereunder are the events chronicled by both the trial and the respondent appellate courts which led to
the filing of the aforesaid criminal charges:jgc:chanrobles.com.ph

"1. Crim. Case No. 3349 — People v. Fermina Ramos, Lourdes Orpiano and Mariano Barreto.

"With the approval of the accused Fermina Ramos, Savings Account No. 1531006558 of Lourdes Orpiano
was opened on January 31, 1976 with an initial deposit of P2,800 (Exh. F).

"Fermina Ramos approved ten (10) withdrawals against uncleared check deposits of Lourdes Orpiano,
on the following dates:jgc:chanrobles.com.ph

"March 23, 1976, the deposit and withdrawal of P52,000, resulting in the filing of Criminal Case No. 3337
with Branch VIII;

"April 8, 1976, the deposit and withdrawal of P35,000.00, resulting in the filing of Criminal Case No.
3331 with this Branch;

"April 10, 1976, the deposit and withdrawal of P35,000.00, resulting in the filing of Criminal Case No.
3333 with this branch;

"April 12, 1976, the deposit and withdrawal of P35,000.00, resulting in the filing of Criminal Case No.
3334 with this branch;

"April 26, 1976, the deposit and withdrawal of P29,000.00, resulting in the filing of Criminal Case No.
3339 with Branch VIII;

"May 5, 1976, the deposit and withdrawal of P29,000.00 resulting in the filing of Criminal Case No. 3343
with this branch;

"May 6, 1976, the deposit and withdrawal of P10,000.00, resulting in the filing of Criminal Case No. 3345
with this branch; and

397
"May 17, 1976, the deposit and withdrawal of P29,000.00, resulting in the filing of Criminal Case No.
3347 with branch VIII.

"On May 19, 1976, PCIB DVO Check No. 77946, (Exh.’A-1-3349B’), for P28,000.00 drawn by Lourdes
Orpiano was deposited by her in her savings account at the FSB Tagum, Branch (Exh. F-5). At that time,
her account balance was only P234.34,

"As a result of that ‘deposit’ her account balance went up to P28,234.34.

On the same date, without waiting for the clearance of Orpiano’s check, the Branch Manager, Fermina
Ramos allowed her said coaccused to withdraw from her account the amount of P28,000.00 (Exh.’A-1-
3349-A’), the very amount which she deposited that day with an uncleared check. Thus her balance
returned to the original amount of P234.34. The withdrawal was paid to Orpiano by FSB in the form of
RCBC Tagum Check No. 85297 for P28,000 drawn by FSB on its account at the Rizal Commercial Banking
Corporation in Tagum (Exh. A-1-3349-A). The check was payable to Orpiano who indorsed it to Mariano
Barretto. When Orpiano’s PCIB DVO Check was presented by FSB thru its depository bank for clearing, it
was dishonored by the drawee bank for having been drawn against insufficient funds (Exh. A-1-3349-F).

"2. Crim. Case No. 3350 — People v. Fermina Ramos, Lourdes Gonzales, Francisco Gonzales and Mariano
Barretto.

"3. Crim. Case No. 3351 — People v. Fermina Ramos, Lourdes Gonzales, Francisco Gonzales, E. Rivera
and John Doe, (pp. 30-31, Rollo)

"The joint savings account no. 1504010272 of the spouses Francisco Gonzales and Lourdes Gonzales was
opened on March 4, 1976 with the FSB Tagum Branch, with the approval of the accused Fermina Ramos.
Their initial deposit was only P500 (Exh. E-3).chanrobles law library

"Four withdrawals against uncleared check deposits were made by Francisco Gonzales and/or Lourdes
Gonzales on the following dates, with the approval of the branch manager Fermina Ramos;

"April 23, 1976 — drawing against uncleared check deposit of P39,000 resulting in the filing of Criminal
Case No. 3336 in this Branch IX.

"April 27, 1976 — drawing against uncleared check deposit of P39,000 resulting in the filing of Criminal
Case No. 3352 in Branch VIII.

"May 19, 1976 — drawing against uncleared check deposit of P39,000 resulting in the filing of Criminal
Case No. 3351 in Branch IX.

"May 19, 1976 — drawing against uncleared check deposit of P38,400 resulting in the filing of this
Criminal Case No. 3350 in Branch IX also.

"On May 19, 1976 the standing balance in the ledger of the joint savings account of Francisco and
Lourdes Gonzales was only P3.25. On that day, an uncleared RCBC Check No. 186851 (sic) (Exh. C-13351)
for P39,000 drawn by a certain E. Rivera on the Rizal Commercial Banking Corporation, Cagayan de Oro
City, was deposited by the Gonzales spouses in their joint savings account, thus raising their account
balance to P39,003.25.

"On the same day, another uncleared check, BPI Tagum No. 100190 for P38,400 drawn by Lourdes
Gonzales on her account at the Bank of the Philippine Islands, Tagum Branch (Exh. C-1-3350-D), was
deposited by her in her and her husband’s joint savings account at the FSB, Tagum (Exh. E-2), further
raising their account balance to P77,403.25.

"Later on the same day, May 19, 1976, Francisco Gonzales and Lourdes Gonzales made two withdrawals
from their joint savings account, with the approval of the accused Fermina Ramos.

"The first was for P18,560.00 (Exh. C-1-3351-A) which was paid to them in the form of a ‘cash’ check, BPI

398
Tag Check No. 241132, drawn by the FSB on its account in the Bank of the Philippine Islands in Tagum
(Exh. C-1-3351-A). This check later found its way into Fermina Ramos’ Savings Account No. 6835 in the
Rizal Commercial Banking Corporation in Tagum (Exh. C-1-3351-B). This transaction is the subject of Crim.
Case No. 3351.

"The second withdrawal was paid to Lourdes Gonzales in the form of a BPI Tag Check No. 35325 in the
amount of P20,440, payable to ‘cash,’ drawn by the FSB Tagum branch on its account in the Bank of the
Philippine Islands in Tagum (Exh. C-1-3350-C). It was later deposited in the Savings Account No. 6838 of
Mariano Barretto in the Rizal Commercial Banking Corporation, Tagum, Branch. This transaction is the
subject of Crim. Case No. 3350.

"Both Rivera’s RCBC Check No. 1868051 and Lourdes Gonzales’ BPI Check No. 100190 were dishonored
by the drawee banks (Exh. E-2).

"x x x

"In June 1976, the deluge of bouncing checks deposited in the FSB Tagum branch and withdrawn
without prior clearance, pursuant to the DAUD accommodations granted by the accused became
unmanageable. Even the checks issued by the FSB Tagum branch were no longer being honored by its
depository banks. In her letter of May 30, 1976 to Mercedes Gotianum, FSB Executive Vice-President,
the accused disclosed that ‘we no longer could withdraw against uncleared deposits. Out-of-town
checks are to be credited to our account upon clearing only.’ (Exh. 8-A).

"An audit of the Tagum branch was ordered by the FSB central office. It resulted in the filing of twenty-
three (23) criminal complaints for estafa against the depositors and Fermina Ramos. Ten (10) of them
were assigned to Branch VIII and thirteen (13) were assigned to Branch IX, the sala of Judge Felix Moya
(Rollo, pp. 30-33).

As the other accused remained at large, petitioner was tried separately. Thereafter, Judge Felix L. Moya
convicted her of estafa through reckless negligence in three (3) of the thirteen (13) cases assigned to his
sala and acquitted her in all the rest. These three (3) cases are the subject matter of this petition. The
other cases assigned to Branch VIII of the same Regional Trial Court were also dismissed.

Petitioner appealed to the Court of Appeals which modified the trial court’s decision and convicted the
accused of estafa with unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) of the
Revised Penal Code. Accordingly, the penalties imposed by the trial court based on Article 365 were set
aside by the respondent Court which imposed the penalty prescribed under Article 315.chanrobles
virtual lawlibrary

In this petition for review, petitioner raised the following errors allegedly committed by the Court of
Appeals:chanrob1es virtual 1aw library

1. Finding that there was evidence adduced in 3351 — regardless of whether it was competent and
adequate or not;

2. Finding that in 3349 and 3350 the evidence adduced was competent and adequate for conviction;

3. Finding that the acts complained of constitute estafa under Art. 315 of the Revised Penal Code; and

4. Finding that there was conspiracy between the several accused and so, where there was defraudation,
there was deliberate defraudation and not just defraudation made possible by negligence of the
petitioner Fermina Ramos. (Petitioner’s Brief, p. 54, Rollo).

After a review of the records, the Court finds that the first two (2) assignments of error made by the
petitioner are untenable. Well-settled is the rule that factual findings made by the trial court, as well as
those of the Court of Appeals, are entitled to great weight and respect. But even after a careful review
of the said factual findings contained in the records, this Court is not persuaded by the petitioner’s
contention that all the evidence presented are incompetent and inadequate for conviction in the cases

399
at bar.

Petitioner contends that the audit worksheets of Elrey Ramos and xerox copies of the dishonored checks
and check return slip in Crim. No. Case 3349 are inadmissible because they do not constitute the best
evidence.

We see no error on the part of the trial judge in admitting the testimony of the bank auditor Elrey
Ramos based on the worksheets he prepared in the process of his investigation regarding the
unauthorized DAUD extended by the petitioner to her co-accused. These worksheets, as correctly
pointed out by the Solicitor General, are organized data culled from the pertinent bank documents
which are not intended to supplant the probative value of said documents. But together with the other
evidence presented such as the account ledgers of petitioner’s co-accused, a number of inter-office
correspondence between the petitioner and her superiors as well as the xerox copies of the uncleared
checks deposited to the FSB and the checks issued by the latter corresponding to the withdrawals
against said uncleared checks, they present indubitable proof that DAUD was allowed by petitioner even
after that practice was prohibited. Besides, these documents and the testimony of another prosecution
witness Francisco Juele, Jr., an employee of the FSB, Tagum Branch, corroborate with each other. From
the material dates, the amounts involved, the check numbers and the names of the different depository
banks, to the signatures of the parties involved, especially that of the signature of the herein petitioner
as the approving officer, the authenticity of these documents is apparent.

In Commissioner of Internal Revenue v. Fireman’s Fund Ins., Co., G.R. No. L-30644, March 9, 1987, 148
SCRA 315, 323, it was held that the court is not precluded from admitting documents other than the
best evidence to prove a party’s allegations, thus:jgc:chanrobles.com.ph

"There is no argument to petitioner’s contention that the insurance policies with the corresponding
documentary stamps affixed are the best evidence to prove payment of said documentary stamp tax.
This rule however does not preclude the admissibility of other proofs which are uncontradicted and of
considerable weight, such as: copies of the applications for manager’s checks, copies of the manager’s
check vouchers of the bank showing the purchases of documentary stamps corresponding to the various
insurance policies issued during the years 1952-1958 duly and properly identified by the witnesses for
respondent company during the hearing and admitted by the respondent Court of Tax Appeals."cralaw
virtua1aw library

Moreover, the entries in the account ledgers of the depositors which are on file on the bank may be
regarded as originals under paragraph c, Section 4, Rule 130 of the Rules of Court, the pertinent
provision of which reads:jgc:chanrobles.com.ph

"Section 4(c). When an entry is repeated in the regular course of business, one being copied from
another at or near the time of the transaction, all the entries are likewise equally regarded as originals.

The above-cited provision alone is sufficient to reject petitioner’s contention that the documents
admitted by the trial court which were among the bases of her conviction do not constitute the best
evidence.chanrobles virtual lawlibrary

We agree with respondent court that the cases-subject matter of this petition do not involve violations
of B.P. 22 or estafa under paragraph 2(d) of Article 315 of the Revised Penal Code but rather, estafa with
unfaithfulness or abuse of confidence under Article 315 subparagraph 1(b) of the same code, in that the
herein petitioner conspired and cooperated with her co-accused to defraud the bank by allowing them
to withdraw funds of the bank against their worthless check deposits.

As correctly ruled by the respondent court, the Regional Trial Court erred in convicting the petitioner
under Article 365 (criminal negligence) in connection with Article 315 of the Revised Penal Code, instead
of under Article 315, solely, as co-principal. The pertinent portion of the respondent court’s decision
reads:jgc:chanrobles.com.ph

"The crime committed by the accused was estafa with unfaithfulness or abuse of confidence under
Article 315 subparagraph 1 (b) of the Revised Penal Code, in that she conspired and cooperated with her

400
co-accused to defraud the bank by allowing them to withdraw funds of the bank against their worthless
check deposits. Her cooperation was intentional, deliberate and malicious, not unwitting or merely
negligent. Consequently, as correctly pointed out by the Solicitor General, the trial court erred in
penalizing her under Article 365, instead of under Article 315, of the Revised Penal Code which
provides:chanrob1es virtual 1aw library

‘ARTICLE 315. Swindling (estafa). — Any person who shall defraud another by any of the means
mentioned hereinbelow shall be punished by:chanrob1es virtual 1aw library

‘1st. The penalty of prision correccional in its maximum period to prision mayor in its minimum period, if
the amount of the fraud is over P12,000 pesos but does not exceed P22,000 pesos, and if such amount
exceeds the latter sum, the penalty provided in this paragraph shall be imposed in its maximum period,
adding one year for each additional 10,000 pesos; but the total penalty which may be imposed shall not
exceed twenty years. In such cases, and in connection with the accessory penalties which may be
imposed and for the purpose of the other provisions of this code, the penalty shall be termed prision
mayor or reclusion temporal, as the case may be.

‘1. with unfaithfulness or abuse of confidence, namely:chanrob1es virtual 1aw library

x x x

‘(b) by misappropriating or converting, to the prejudice of another, money, goods, or other personal
property received by the offender in trust or on commission, or for administration, or under any other
obligation involving the duty to make delivery of or to return the same, even though such obligation be
totally or partially guaranteed by a bond, or by denying having received such money, goods, or other
property.’" (pp. 36-37, Rollo)

It is not, however, sufficient to hold that petitioner conspired with her co-accused to defraud the hank
on the basis of a showing that the checks deposited to the bank indeed bounced. There is still a need to
prove conspiracy which, on the other hand, can be shown by circumstantial evidence. It is well-settled
that direct proof is not essential to show conspiracy. It need not be shown that the parties actually came
together and agreed in expressed terms to enter in and pursue a common design. The existence of the
assent of minds which is involved in a conspiracy may be, and, from the secrecy of the crime, usually
must be, inferred by the court from proof of facts and circumstances which, taken together, apparently
indicate that they are merely parts of some complete whole.

In resume, it is clear from the evidence that petitioner allowed withdrawals on uncleared checks
deposited into the accounts of her co-accused, i.e., four (4) withdrawals for the spouses Francisco and
Lourdes Gonzales and ten (10) withdrawals on the accounts of Lourdes Orpiano. These, by themselves,
are irregular and suspicious acts. Firstly, they were contrary to specific bank’s policies and procedures
(Exh. "D"). Petitioner’s justification that she was merely following her predececsor’s practice, is belied by
the fact that her co-accused were not included in the list of depositors allowed DAUD accommodations
as said co-accused opened their accounts only when the manager of the FSB was already the petitioner.
Furthermore, it was admitted by the petitioner herself that she was repeatedly ordered by her superiors
to stop giving DAUD accommodations. Notwithstanding the specific instructions, petitioner repeatedly
granted accommodations in at least fourteen (14) instances and despite her knowledge that prior checks
deposited by her co-accused turned out to be unfunded. See these clearly indicate that she acted
maliciously or in bad faith by assuming to dispose the money of the bank as if it were her own, thereby
committing conversion and a clear breach of trust. She performed an indispensable act necessary to
enable her and her co-accused to accomplish the criminal purpose they had in mind. Apart from the
foregoing, conspiracy was further strengthened by the testimonial evidence given by one of the
employees of the bank, Mr. Francisco Juele who testified as follows:chanrobles virtual lawlibrary

"Fiscal Isagani Fuentes:chanrob1es virtual 1aw library

Q Could you remember what other transaction transpired in the bank when this depositor made
transaction there?

401
A She instructed us that whenever this depositor comes, she has to attend to her transaction personally.

Q With Mrs. Gonzales?

A Yes, Sir. (TSN, March 1, 1978, p. 14).

x x x

Q And again, will you please tell us if there was anything that the accused Mrs. Ramos have instructed
the bank about this particular depositor?

A The instruction was, she has to attend to the transaction personally.

Q And aside from these transactions made by the accused Lourdes Orpiano, was there any other
transactions with the bank aside from these?

A None, Sir. (Ibid, pp. 18-19)

x x x

Q And will you please tell this Honorable Court what instructions did you receive with respect to the
transaction made by Segundina Orpiano?

A The instruction was, she has to attend to it personally. (Ibid, p. 21)

x x x

Q And will you please tell us again if any instruction was given to you or to the bank regarding these
transactions of Mr. Barreto in the bank?

A The instruction was, she has to attend personally to the transaction of the depositor. (Ibid, pp. 23-24)

What is even more alarming is the fact that there was one check (BPI Tag Check No. 241132, drawn by
the FSB on its account in the Bank of P.I. in Tagum, Exh. C-1-3351-A), proceeds of a withdrawal, which
went into the personal account of petitioner Fermina Ramos. This is a clear proof of her evident
intention to benefit from these transactions. And despite this very disturbing evidence, petitioner made
no effort to justify the same.

ACCORDINGLY, the petition is hereby DENIED and the assailed decision of the respondent Court of
Appeals is AFFIRMED.cralawnad

SO ORDERED.

Narvasa, Cruz and Feliciano, JJ., concur.

G.R. No. 135216 August 19, 1999

TOMASA VDA. DE JACOB, as Special Administratrix of the Intestate Estate of Deceased Alfredo E.
Jacob, petitioner,
vs.
COURT OF APPEALS, PEDRO PILAPIL, THE REGISTER OF DEEDS for the Province of Camarines Sur, and
JUAN F. TRIVINO as publisher of "Balalong," respondents.

PANGANIBAN, J.:

402
The contents of a document may be proven by competent evidence other than the document itself,
provided that the offeror establishes its due execution and its subsequent loss or destruction.
Accordingly, the fact of marriage may be shown by extrinsic evidence other than the marriage contract.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the Decision of the Court
of Appeals1 (CA) dated January 15, 1998, and its Resolution dated August 24, 1998, denying petitioner’s
Motion for Reconsideration.

The dispositive part of the CA Decision reads:

WHEREFORE, finding no reversible error in the decision appealed from it being more consistent
with the facts and the applicable law, the challenged Decision dated 05 April 1994 of the RTC, Br.
30, Tigaon, Camarines Sur is AFFIRMED in toto.2

The decretal portion of the trial court Decision3 is as follows:

WHEREFORE, premises considered, decision is hereby rendered in favor of [herein Respondent]

Pedro Pilapil, and against [herein Petitioner] Tomasa Guison as follows:

a) Declaring Exh. B, the so called "reconstructed marriage contract" excluded under the
best evidence rule, and therefore declaring said Exh. B spurious and non-existent.

b) Declaring Exh. 3 Order dated July 18, 1961, and the signature of the issuing Judge
JOSE L. MOYA (Exh. 34) to be genuine.

c) Permanently setting aside and lifting the provisional writ of injunction earlier issued;
and

d) To pay attorney's fees of P50,000.

And costs against [herein petitioner.]

The Facts

The Court of Appeals narrates the facts thus:

Plaintiff-appellant [petitioner herein] claimed to be the surviving spouse of deceased Dr. Alfredo
E. Jacob and was appointed Special Administratix for the various estates of the deceased by
virtue of a reconstructed Marriage Contract between herself and the deceased.

Defendant-appellee on the other hand, claimed to be the legally-adopted son of Alfredo. In

support of his claim, he presented an Order dated 18 July 1961 issued by then Presiding Judge
Jose L. Moya, CFI, Camarines Sur, granting the petition for adoption filed by deceased Alfredo in
favor of Pedro Pilapil.1âwphi1.nêt

During the proceeding for the settlement of the estate of the deceased Alfredo in Case No. T-46
(entitled "Tomasa vda. de Jacob v. Jose Centenera, et al) herein defendant-appellee Pedro
sought to intervene therein claiming his share of the deceased’s estate as Alfredo's adopted son
and as his sole surviving heir. Pedro questioned the validity of the marriage between appellant
Tomasa and his adoptive father Alfredo.

Appellant Tomasa opposed the Motion for Intervention and filed a complaint for injunction with
damages (Civil Case No. T-83) questioning appellee's claim as the legal heir of Alfredo.

The following issues were raised in the court a quo:

403
 a) Whether the marriage between the plaintiff-appellant and deceased Alfredo Jacob
was valid;

b) Whether the defendant-appellee is the legally adopted son of deceased Jacob.

On the first issue, appellant claims that the marriage between her and Alfredo was solemnized
by one Msgr. Florencio C. Yllana, CBCP, Intramuros, Manila sometime in 1975. She could not
however present the original copy of the Marriage Contract stating that the original document
was lost when Msgr. Yllana allegedly gave it to Mr. Jose Centenera for registration. In lieu of the
original, Tomasa presented as secondary evidence a reconstructed Marriage Contract issued in
1978.

During the trial, the court a quo observed the following irregularities in the execution of the
reconstructed Marriage Contract, to wit:

1. No copy of the Marriage Contract was sent to the local civil registrar by the
solemnizing officer thus giving the implication that there was no copy of the marriage
contract sent to, nor a record existing in the civil registry of Manila;

2. In signing the Marriage Contract, the late Alfredo Jacob merely placed his
"thumbmark" on said contract purportedly on 16 September 1975 (date of the
marriage). However, on a Sworn Affidavit executed between appellant Tomasa and
Alfredo a day before the alleged date of marriage or on 15 September 1975 attesting
that both of them lived together as husband and wife for five (5) years, Alfredo [af]fixed
his customary signature. Thus the trial court concluded that the "thumbmark" was
logically "not genuine". In other words, not of Alfredo Jacob’s;

3. Contrary to appellant’s claim, in his Affidavit stating the circumstances of the loss of
the Marriage Contract, the affiant Msgr. Yllana never mentioned that he allegedly "gave
the copies of the Marriage Contract to Mr. Jose Centenera for registration". And as
admitted by appellant at the trial, Jose Centenera (who allegedly acted as padrino) was
not present at the date of the marriage since he was then in Australia. In fact, on the
face of the reconstructed Marriage Contract, it was one "Benjamin Molina" who signed
on top of the typewritten name of Jose Centenera. This belies the claim that Msgr.
Yllana allegedly gave the copies of the Marriage Contract to Mr. Jose Centenera;

4. Appellant admitted that there was no record of the purported marriage entered in
the book of records in San Agustin Church where the marriage was allegedly solemnized.

Anent the second issue, appellee presented the Order dated 18 July 1961 in Special Proceedings
No. 192 issued by then Presiding Judge Moya granting the petition for adoption filed by
deceased Alfredo which declared therein Pedro Pilapil as the legally adopted son of Alfredo.

Appellant Tomasa however questioned the authenticity of the signature of Judge Moya.

In an effort to disprove the genuineness and authenticity of Judge Moya's signature in the Order
granting the petition for adoption, the deposition of Judge Moya was taken at his residence on
01 October 1990.

In his deposition, Judge Moya attested that he could no longer remember the facts in judicial
proceedings taken about twenty-nine (29) years ago when he was then presiding judge since he
was already 79 years old and was suffering from "glaucoma".

The trial court then consulted two (2) handwriting experts to test the authenticity and
genuineness of Judge Moya's signature.

A handwriting examination was conducted by Binevenido C. Albacea, NBI Document Examiner.

Examiner Albacea used thirteen (13) specimen signatures of Judge Moya and compared it with

404
 the questioned signature. He pointed out irregularities and "significant fundamental differences
in handwriting characteristics/habits existing between the questioned and the "standard"
signature" and concluded that the questioned and the standard signatures "JOSE L. MOYA" were
NOT written by one and the same person.

On the other hand, to prove the genuineness of Judge Moya's signature, appellee presented the
comparative findings of the handwriting examination made by a former NBI Chief Document
Examiner Atty. Desiderio A. Pagui who examined thirty-two (32) specimen signatures of Judge
Moya inclusive of the thirteen (13) signatures examined by Examiner Albacea. In his report, Atty.
Pagui noted the existence of significant similarities of unconscious habitual pattern within
allowable variation of writing characteristics between the standard and the questioned
signatures and concluded that the signature of Judge Moya appearing in the Order dated 18 July
1961 granting the petition for adoption was indeed genuine.

Confronted with two (2) conflicting reports, the trial court sustained the findings of Atty. Pagui
declaring the signature of Judge Moya in the challenged Order as genuine and authentic.

Based on the evidence presented, the trial court ruled for defendant-appellee sustaining his
claim as the legally adopted child and sole heir of deceased Alfredo and declaring the
reconstructed Marriage Contract as spurious and non-existent."4 (citations omitted, emphasis in
the original)

Ruling of the Court of Appeals

In affirming the Decision of the trial court, the Court of Appeals ruled in this wise:

Dealing with the issue of validity of the reconstructed Marriage Contract, Article 6, par. 1 of the
Family Code provides that the declaration of the contracting parties that they take each other as
husband and wife "shall be set forth in an instrument signed by the parties as well as by their
witnesses and the person solemnizing the marriage." Accordingly, the primary evidence of a
marriage must be an authentic copy of the marriage contract.

And if the authentic copy could not be produced, Section 3 in relation to Section 5, Rule 130 of
the Revised Rules of Court provides:

Sec. 3. Original document must be produced; exceptions. — When the subject of inquiry
is the contents of a document, no evidence shall be admissible other than the original
document itself, except in the following cases:

(a) When the original has been lost or destroyed, or cannot be produced in court
without bad faith on the part of the offeror;

xxx xxx xxx

Sec. 5. When the original document is unavailable. — When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy. Or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.

As required by the Rules, before the terms of a transaction in reality may be established by
secondary evidence, it is necessary that the due execution of the document and subsequent loss
of the original instrument evidencing the transaction be proved. For it is the due execution of
the document and subsequent loss that would constitute the foundation for the introduction of
secondary evidence to prove the contents of such document.

In the case at bench, proof of due execution besides the loss of the three (3) copies of the
marriage contract has not been shown for the introduction of secondary evidence of the

405
 contents of the reconstructed contract. Also, appellant failed to sufficiently establish the
circumstances of the loss of the original document.

With regard to the trial court's finding that the signature of then Judge Moya in the questioned
Order granting the petition for adoption in favor of Pedro Pilapil was genuine, suffice it to state
that, in the absence of clear and convincing proof to the contrary, the presumption applies that
Judge Moya in issuing the order acted in the performance of his regular duties.

Furthermore, since the signature appearing in the challenged Order was subjected to a rigid
examination of two (2) handwriting experts, this negates the possibility of forgery of Judge
Moya's signature. The value of the opinion of a handwriting expert depends not upon his mere
statement of whether a writing is genuine or false, but upon the assistance he may afford in
pointing out distinguishing marks, characteristics, and discrepancies in and between genuine
and false specimens of writing of which would ordinarily escape notice or dete[c]tion from an
unpracticed observer. And in the final analysis, the assessment of the credibility of such expert
witnesses rests largely in the discretion of the trial court, and the test of qualification is
necessarily a relative one, depending upon the subject under investigation and the fitness of the
particular witness. Except in extraordinary cases, an appellate court will not reverse on account
of a mistake of judgment on the part of the trial court in determining qualifications of this case.

Jurisprudence is settled that the trial court's findings of fact when ably supported by substantial
evidence on record are accorded with great weight and respect by the Court. Thus, upon review,
We find that no material facts were overlooked or ignored by the court below which if
considered might vary the outcome of this case nor there exist cogent reasons that would
warrant reversal of the findings below. Factual findings of the trial court are entitled to great
weight and respect on appeal especially when established by unrebutted testimony and
documentary evidence.5 (citations omitted, emphasis in the original)

Disagreeing with the above, petitioner lodged her Petition for Review before this Court.6

The Issues

In her Memorandum petitioner presents the following issues for the resolution of this Court:

a) Whether or not the marriage between the plaintiff Tomasa Vda. De Jacob and deceased
Alfredo E. Jacob was valid; and

b) Whether defendant Pedro Pilapil is the legally adopted son of Alfredo E. Jacob.7

The Court's Ruling

The Petition is meritorious. Petitioner's marriage is valid, but respondent’s adoption has not been
sufficiently established.

First Issue:

Validity of Marriage

Doctrinally, a void marriage may be subjected to collateral attack, while a voidable one may be assailed
only in a direct proceeding.8 Aware of this fundamental distinction, Respondent Pilapil contends that the
marriage between Dr. Alfredo Jacob and petitioner was void ab initio, because there was neither a
marriage license nor a marriage ceremony.9 We cannot sustain this contention.

To start with, Respondent Pedro Pilapil argues that the marriage was void because the parties had no
marriage license. This argument is misplaced, because it has been established that Dr. Jacob and
petitioner lived together as husband and wife for at least five years.10 An affidavit to this effect was
executed by Dr. Jacob and petitioner.11 Clearly then, the marriage was exceptional in character and did
not require a marriage license under Article 76 of the Civil Code.12 The Civil Code governs this case,

406
because the questioned marriage and the assailed adoption took place prior the effectivity of the Family
Code.

When Is Secondary Evidence Allowed?

"It is settled that if the original writing has been lost or destroyed or cannot be produced in court, upon
proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy or
a recital of its contents in some authentic document, or by recollection of witnesses."13 Upon a showing
that the document was duly executed and subsequently lost, without any bad faith on the part of the
offeror, secondary evidence may be adduced to prove its contents.14

The trial court and the Court of Appeals committed reversible error when they (1) excluded the
testimonies of petitioner, Adela Pilapil and Msgr. Florencio Yllana and (2) disregarded the following: (a)
photographs of the wedding ceremony; (b) documentary evidence, such as the letter of Monsignor
Yllana stating that he had solemnized the marriage between Dr. Jacob and petitioner, informed the
Archbishop of Manila that the wedding had not been recorded in the Book of Marriages, and at the
same time requested the list of parties to the marriage; (c) the subsequent authorization issued by the
Archbishop — through his vicar general and chancellor, Msgr. Benjamin L. Marino — ordaining that the
union between Dr. Jacob and petitioner be reflected through a corresponding entry in the Book of
Marriages; and (d) the Affidavit of Monsignor Yllana stating the circumstances of the loss of the
marriage certificate.

It should be stressed that the due execution and the loss of the marriage contract, both constituting
the conditio sine qua non for the introduction of secondary evidence of its contents, were shown by the
very evidence they have disregarded. They have thus confused the evidence to show due execution and
loss as "secondary" evidence of the marriage. In Hernaez v. Mcgrath,15 the Court clarified this
misconception thus:

. . . [T]he court below was entirely mistaken in holding that parol evidence of the execution of
the instrument was barred. The court confounded the execution and the contents of the
document. It is the contents, . . . which may not be prove[n] by secondary evidence when the
instrument itself is accessible. Proofs of the execution are not dependent on the existence or
non-existence of the document, and, as a matter of fact, such proofs precede proofs of the
contents: due execution, besides the loss, has to be shown as foundation for the introduction of
secondary evidence of the contents.

xxx xxx xxx

Evidence of the execution of a document is, in the last analysis, necessarily collateral or
primary. It generally consists of parol testimony or extrinsic papers. Even when the document is
actually produced, its authenticity is not necessarily, if at all, determined from its face or recital
of its contents but by parol evidence. At the most, failure to produce the document, when
available, to establish its execution may affect the weight of the evidence presented but not the
admissibility of such evidence. (emphasis ours)

The Court of Appeals, as well as the trial court, tried to justify its stand on this issue by relying on Lim
Tanhu v. Ramolete.16 But even there, we said that "marriage may be prove[n] by other competent
evidence."17

Truly, the execution of a document may be proven by the parties themselves, by the swearing officer, by
witnesses who saw and recognized the signatures of the parties; or even by those to whom the parties
have previously narrated the execution thereof.18 The Court has also held that "[t]he loss may be shown
by any person who [knows] the fact of its loss, or by any one who ha[s] made, in the judgment of the
court, a sufficient examination in the place or places where the document or papers of similar character
are usually kept by the person in whose custody the document lost was, and has been unable to find it;
or who has made any other investigation which is sufficient to satisfy the court that the instrument [has]
indeed [been] lost."19

407
In the present case, due execution was established by the testimonies of Adela Pilapil, who was present
during the marriage ceremony, and of petitioner herself as a party to the event. The subsequent loss
was shown by the testimony and the affidavit of the officiating priest, Monsignor Yllana, as well as by
petitioner's own declaration in court. These are relevant, competent and admissible evidence. Since the
due execution and the loss of the marriage contract were clearly shown by the evidence presented,
secondary evidence — testimonial and documentary — may be admitted to prove the fact of marriage.

The trial court pointed out that on the face of the reconstructed marriage contract were certain
irregularities suggesting that it had fraudulently been obtained.20 Even if we were to agree with the trial
court and to disregard the reconstructed marriage contract, we must emphasize that this certificate is
not the only proof of the union between Dr. Jacob and petitioner.

Proof of Marriage

As early as Pugeda v. Trias, 21 we have held that marriage may be proven by any competent and relevant
evidence. In that case, we said:

Testimony by one of the parties to the marriage, or by one of the witnesses to the marriage, has
been held to be admissible to prove the fact of marriage. The person who officiated at the
solemnization is also competent to testify as an eyewitness to the fact of marriage.22 (emphasis
supplied)

In Balogbog v. CA,23 we similarly held:

[A]lthough a marriage contract is considered primary evidence of marriage, the failure to

present it is not proof that no marriage took place. Other evidence may be presented to prove
marriage. (emphasis supplied, footnote ommitted)

In both cases, we allowed testimonial evidence to prove the fact of marriage. We reiterated this
principle in Trinidad v. CA,24 in which, because of the destruction of the marriage contract, we accepted
testimonial evidence in its place.25

Respondent Pedro Pilapil misplaces emphasis on the absence of an entry pertaining to 1975 in the Books
of Marriage of the Local Civil Registrar of Manila and in the National Census and Statistics Office
(NCSO).26 He finds it quite "bizarre" for petitioner to have waited three years before registering their
marriage.27 On both counts, he proceeds from the wrong premise. In the first place, failure to send a
copy of a marriage certificate for record purposes does not invalidate the marriage.28 In the second
place, it was not the petitioner’s duty to send a copy of the marriage certificate to the civil registrar.
Instead, this charge fell upon the solemnizing officer.29

Presumption in Favor of Marriage

Likewise, we have held:

The basis of human society throughout the civilized world is . . . of marriage. Marriage in this
jurisdiction is not only a civil contract, but it is a new relation, an institution in the maintenance
of which the public is deeply interested. Consequently, every intendment of the law leans
toward legalizing matrimony. Persons dwelling together in apparent matrimony are presumed,
in the absence of any counterpresumption or evidence special to the case, to be in fact married.
The reason is that such is the common order of society, and if the parties were not what they
thus hold themselves out as being, they would be living in the constant violation of decency and
of law. A presumption established by our Code of Civil Procedure is "that a man and woman
deporting themselves as husband and wife have entered into a lawful contract of
marriage." Semper praesumitur pro matrimonio — Always presume marriage.30 (emphasis
supplied)

This jurisprudential attitude31 towards marriage is based on the prima facie presumption that a man and
a woman deporting themselves as husband and wife have entered into a lawful contract of

408
marriage.32 Given the undisputed, even accepted,33 fact that Dr. Jacob and petitioner lived together as
husband and wife,34 we find that the presumption of marriage was not rebutted in this case.

Second Issue:

Validity of Adoption Order

In ruling that Respondent Pedro Pilapil was adopted by Dr. Jacob and that the signature of Judge Moya
appearing on the Adoption Order was valid, the Court of Appeals relied on the presumption that the
judge had acted in the regular performance of his duties. The appellate court also gave credence to the
testimony of respondent’s handwriting expert, for "the assessment of the credibility of such expert
witness rests largely on the discretion of the trial court . . . "35

We disagree. As a rule, the factual findings of the trial court are accorded great weight and respect by
appellate courts, because it had the opportunity to observe the demeanor of witnesses and to note
telltale signs indicating the truth or the falsity of a testimony. The rule, however, is not applicable to the
present case, because it was Judge Augusto O. Cledera, not the ponente, who heard the testimonies of
the two expert witnesses. Thus, the Court examined the records and found that the Court of Appeals
and the trial court "failed to notice certain relevant facts which, if properly considered, will justify a
different conclusion."36 Hence, the present case is an exception to the general rule that only questions
of law may be reviewed in petitions under Rule 45.37

Central to the present question is the authenticity of Judge Moya's signature on the questioned Order of
Adoption. To enlighten the trial court on this matter, two expert witnesses were presented, one for
petitioner and one for Respondent Pilapil. The trial court relied mainly on respondent’s expert and
brushed aside the Deposition of Judge Moya himself.38 Respondent Pilapil justifies the trial judge’s
action by arguing that the Deposition was ambiguous. He contends that Judge Moya could not
remember whether the signature on the Order was his and cites the following portion as proof:39

Q. What was you[r] response, sir?

A: I said I do not remember.

Respondent Pilapil's argument is misleading, because it took the judge's testimony out of its context.
Considered with the rest of the Deposition, Judge Moya's statements contained no ambiguity. He was
clear when he answered the queries in the following manner:

Atty. Benito P. Fabie

Q. What else did she tell you[?]

A. And she ask[ed] me if I remembered having issued the order.

Q. What was your response sir[?]

A. I said I do not remember.40

The answer "I do not remember" did not suggest that Judge Moya was unsure of what he was declaring.
In fact, he was emphatic and categorical in the subsequent exchanges during the Deposition:

Atty. Benito P. Fabie

Q. I am showing to you this Order, Exh. "A" deposition[;] will you please recall whether you
issued this Order and whether the facsimile of the signature appearing thereon is your signature.

A. As I said, I do not remember having issued such an order and the signature reading Jose[;] I
can’t make out clearly what comes after the name[;] Jose Moya is not my signature.41

409
Clearly, Judge Moya could not recall having ever issued the Order of Adoption. More importantly, when
shown the signature over his name, he positively declared that it was not his.

The fact that he had glaucoma when his Deposition was taken does not discredit his statements. At the
time, he could with medication still read the newspapers; upon the request of the defense counsel, he
even read a document shown to him.42 Indeed, we find no reason – and the respondent has not
presented any – to disregard the Deposition of Judge Moya.

Judge Moya's declaration was supported by the expert testimony of NBI Document Examiner Bienvenido
Albacea, who declared:

Atty. Paraiso

Q And were you able to determine [w]hat purpose you had in your examination of this
document?

A Yes sir, [based on] my conclusion, [I] stated that the questioned and the standard signature
Jose L. Moya were not written by one and the same person. On the basis of my findings that I
would point out in detail, the difference in the writing characteristics [was] in the structural
pattern of letters which is very apparent as shown in the photograph as the capital letter "J".43

It is noteworthy that Mr. Albacea is a disinterested party, his services having been sought without any
compensation. Moreover, his competence was recognized even by Respondent Pilapil’s expert witness,
Atty. Desiderio Pagui.44

Other considerations also cast doubt on the claim of respondent. The alleged Order was purportedly
made in open court. In his Deposition, however, Judge Moya declared that he did not dictate decisions
in adoption cases. The only decisions he made in open court were criminal cases, in which the accused
pleaded guilty.45 Moreover, Judge Moya insisted that the branch where he was assigned was always
indicated in his decisions and orders; yet the questioned Order did not contain this information.
Furthermore, Pilapil’s conduct gave no indication that he recognized his own alleged adoption, as shown
by the documents that he signed and other acts that he performed thereafter.46 In the same vein, no
proof was presented that Dr. Jacob had treated him as an adopted child. Likewise, both the Bureau of
Records Management47 in Manila and the Office of the Local Civil Registrar of Tigaon, Camarines
Sur,48 issued Certifications that there was no record that Pedro Pilapil had been adopted by Dr. Jacob.
Taken together, these circumstances inexorably negate the alleged adoption of respondent.49

The burden of proof in establishing adoption is upon the person claiming such relationship.50 This
Respondent Pilapil failed to do. Moreover, the evidence presented by petitioner shows that the alleged
adoption is a sham.

WHEREFORE, the Petition is GRANTED and the assailed Decision of the Court of Appeals is REVERSED
and SET ASIDE. The marriage between Petitioner Tomasa Vda. de Jacob and the deceased Alfredo E.
Jacob is hereby recognized and declared VALID and the claimed adoption of Respondent Pedro Pilapil is
DECLARED NONEXISTENT. No pronouncement as to costs.1âwphi1.nêt

SO ORDERED.

Melo, Vitug, Purisima and Gonzaga-Reyes, JJ., concur.

[G.R. No. 150905. September 23, 2003.]

CITIBANK, N.A. MASTERCARD, Petitioner, v. EFREN S. TEODORO, Respondent.

DECISION

410
PANGANIBAN, J.:

Before secondary evidence may be admitted to prove the contents of original documents, the offeror
must prove the due execution and the subsequent loss or unavailability of the original.chanrob1es
virtua1 1aw 1ibrary

The Case

The Petition for Review 1 before us assails the July 31, 2001 Decision 2 and the November 22, 2001
Resolution 3 of the Court of Appeals (CA) in CA-GR SP No. 62891. The dispositive portion of the
challenged Decision reads as follows:jgc:chanrobles.com.ph

"WHEREFORE, premises considered, the Petition is GRANTED; and the Decisions of the trial courts are
hereby REVERSED and SET ASIDE. No costs." 4

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

Petitioner operates a credit card system through which it extends credit accommodations to its
cardholders for the purchase of goods and services from its member establishments. The purchases are
later on paid for by cardholders upon receipt of the billings or statements of account from the company.
Respondent Efren S. Teodoro was one such cardholder. On December 14, 1990, he applied for
membership with petitioner. After his application was approved, he was issued Citibank, N.A.
Mastercard No. 5423-3920-4457-7009.

Under the terms and conditions governing the use of the Citibank credit card, the cardholder undertakes
to pay all the purchases made using the card within the period indicated on the statement of account or
within thirty (30) days from the date or dates of its use. Charges that remain unpaid within the period
fixed in the monthly statement of account shall earn interest at the rate of 3.5 percent per month plus a
penalty fee equivalent to 5 percent of the amount due for every month or even a fraction of a month’s
delay.

Respondent made various purchases through his credit card. Accordingly, he was billed by petitioner for
those purchases, for which he tendered various payments.

Petitioner claims that as of January 20, 1995, the obligations of respondent stood at P191,693.25,
inclusive of interest and service charges. Several times it demanded payment from him, but he refused
to pay, claiming that the amount demanded did not correspond to his actual obligations. His refusal
prompted petitioner to file a Complaint for collection on January 25, 1996 before the Regional Trial
Court (RTC) of Makati City. The case was docketed as Civil Case No. 96-092 and raffled to Branch 133.

The RTC, in an Order dated April 23, 1996, dismissed the Complaint for lack of jurisdiction over the
amount involved. The case was then transferred to the Metropolitan Trial Court (MTC) of Makati City,
where it was docketed as Civil Case No. 51586 and raffled to Branch 66.

During the trial, petitioner presented several sales invoices or charge slips, which added up to only
P24,388.36. Although mere photocopies of the originals, the invoices were marked in evidence as
Exhibits "F" to "F-4." Because all these copies appeared to bear the signatures of respondent, the trial
court deemed them sufficient proof of his purchases with the use of the credit card. Accordingly, the
MTC in its July 25, 2000 Decision 5 ordered him to pay petitioner the amount of P24,388.36 plus interest
and penalty fee. The material portion of the Decision reads:jgc:chanrobles.com.ph

" [Petitioner] is claiming that [respondent] made use of its credit card. And as of January 20, 1995,
[respondent’s] obligation to [petitioner] ballooned to the sum of P191,693.25.

411
"This is clear according to [petitioner] as shown by the Statement of Accounts.

"To the mind of this Court, the Statement of Account alone will not prove that [respondent] has an
outstanding obligation to [petitioner] in the amount of P191,693.95. This must be substantiated by the
Sales Invoices which unearthed the purchases made by [respondent] when he availed himself of the
credit card of [petitioner].

"While it is true that [petitioner] has offered the Sales Invoices (Exhibits ‘F’, ‘F-1’, ‘F-4’) to show the
purchases made by [respondent], it is equally true also that adding all the amount in said invoices, the
sum of P191,693.95 which according to [petitioner] is the outstanding obligation of [respondent], is
hardly met. [Petitioner] even admitted that it could not produce all the invoices. Without the other Sales
Invoices, there is a cloud of doubt hovering over the claim of [petitioner] to [respondent].

"In fact, summing up all the amount[s] indicated in the aforesaid Sales Invoices the fact that the
[respondent] has incurred to [petitioner] an obligation in the amount of P24,388.36 as a result of the
former’s availment of the credit card of the latter.

"It is elementary procedure that [petitioner] must prove [its] case with preponderance of evidence.
Without all the other Sales Invoices to uncover the purchases made by [respondent] when he used the
credit card of [petitioner], it is undeniable . . . that [petitioner] is caught in the web of doubt with
respect to the accuracy of its claim to the [respondent].

"WHEREFORE, premises considered, this Court hereby renders judgment as

follows:jgc:chanrobles.com.ph

"1. Ordering [respondent] to pay [petitioner] P24,388.36 with an interest of 3.5% and a penalty fee
equivalent to another 5% of the amount due for every month due or a fraction of a month’s delay
starting February 21, 1995 until the entire obligation is fully paid;

"2. Ordering [respondent] to pay [petitioner] 25% of any and all amounts due and payable as agreed
attorney’s fees plus cost of suit. 6

Thereafter, respondent appealed the MTC judgment to the RTC of Makati City, where the appeal was
docketed as Civil Case No. 00-1051 and raffled to Branch 146. In its October 30, 2000 Decision, 7 the RTC
affirmed the MTC Decision in toto.chanrob1es virtua1 1aw 1ibrary

Ruling of the Court of Appeals

The focal issue of the case according to the CA was whether the photocopies of the sales invoices or
charge slips, marked as Exhibits "F" to "F-4," were competent proofs of the obligations of Respondent.
These were the only evidence presented by petitioner that could prove the actual amount of obligation
he had incurred in favor of the former. In reversing the trial courts, the CA ruled that this evidence was
insufficient to prove any liability on respondent’s part.

According to Sections 3 and 5 of Rule 130 of the Rules of Court, whenever the subject of inquiry is the
content of a document, its original must be produced, as it is the best evidence to prove such content.
Secondary evidence, like the subject photocopies, is inadmissible. It will be admissible only if the offeror
proves (a) any of the exceptions enumerated in Section 3 and (b) the conditions for its admissibility set
forth in Section 5 of Rule 130. For secondary evidence to be admissible, there must be satisfactory proof
of (1) the due execution of the original; (2) the original’s loss, destruction or unavailability that is not due
to the offeror’s bad faith; and (3) reasonable diligence and good faith in the search for or attempt to
produce the original.

Although petitioner was able to prove the existence of the original sales invoices, it failed to prove their
due execution or to account for their loss or unavailability.

Hence, this Petition. 8

412
Issues

Petitioner raises the following issues for our consideration:jgc:chanrobles.com.ph

"I. Whether or not the Court of Appeals erred in reversing and setting aside the decision of the trial
courts for insufficiency of evidence to support its findings.

"II. Whether or not the Court of Appeals erred in holding that petitioner failed to prove the due
execution and the cause of the unavailability and non-production of the charge slips marked in evidence
as Exhibits ‘F’ to ‘F’-4.’" 9

In brief, the main issue boils down to whether the photocopies of the sales invoices or charge slips
marked during trial as Exhibits "F" to "F-4" are admissible in evidence.cralaw : red

The Court’s Ruling

The Petition has no merit.

Main Issue:chanrob1es virtual 1aw library

Admissibility of Photocopies

Petitioner contends that the testimony 10 of its principal witness — Mark Hernando, assistant manager
of Citibank, N.A. Mastercard — proves the following:chanrob1es virtual 1aw library

a) the existence or due execution of the original sales invoices which sufficiently proved respondent’s
liability of P24,388.36;

b) the loss or unavailability of the original sales invoices; and

c) petitioner’s reasonable diligence and good faith in the search for or attempt to produce the originals.

It further argues that Hernando competently identified the signatures of respondent on the sales
invoices, having recognized them as identical to the signature on the latter’s credit card application form.

On the other hand, respondent maintains that petitioner failed to prove the due execution of the sales
invoices. According to him, Hernando was not privy to such execution and could not have properly or
competently declared that the signatures on the invoices and on the application form belonged to the
former. The latter was not the person before whom the application form was signed, executed or
acknowledged; he was not even present then. As to the sales invoices and respondent’s alleged
signatures thereon, he saw them only after the Complaint had been filed in court or long after those
invoices had been executed. He was therefore not competent to identify the signatures.

Because Hernandez had not actually witnessed the execution of the sales invoices and the application
form, respondent concludes that petitioner failed to observe Section 5 of Rule 130 of the Rules of Court,
which provides that the contents of the original may be proven by the testimony of witnesses.

Finally, respondent contends that the alleged loss or unavailability of the original sales invoices was not
sufficiently established. Allegedly, Hernandez had requested the originals from Equitable Credit Card
Network, Inc., but failed to show in court that he had followed up his request as advised by another
witness, Zen Hipolito. Therefore, the requirement of reasonable diligence and good faith in the search
for or attempt to produce the originals was not satisfied, because he had shown no proof of having
followed up the request.

The burden of proof rests upon petitioner, as plaintiff, to establish its case based on a preponderance of
evidence. It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it. 11
Petitioner failed to prove that respondent had an obligation in the principal amount of P24,388.36,

413
because the photocopies of the original sales invoices it had presented in court were inadmissible in
evidence. Moreover, had they been admissible, they would still have had little probative value. 12

The original copies of the sales invoices are the best evidence to prove the alleged obligation.
Photocopies thereof are mere secondary evidence. As such, they are inadmissible because petitioner, as
the offeror, failed to prove any of the exceptions provided under Section 3 13 of Rule 130 of the Rules of
Court, as well as the conditions of their admissibility. Because of the inadmissibility of the photocopies in
the absence of the originals, respondent’s obligation was not established.

Section 5 of Rule 130 of the Rules of Court states:jgc:chanrobles.com.ph

"SEC. 5. When original document is unavailable. — When the original document has been lost or
destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the
cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital
of its contents in some authentic document, or by the testimony of witnesses in the order
stated."cralaw virtua1aw library

Applying the above Rule to the present case, before a party is allowed to adduce secondary evidence to
prove the contents of the original sales invoices, the offeror must prove the following: (1) the existence
or due execution of the original; (2) the loss and destruction of the original or the reason for its
nonproduction in court; and (3) on the part of the offeror, the absence of bad faith to which the
unavailability of the original can be attributed. 14 The correct order of proof is as follows: existence,
execution, loss, and contents. At the sound discretion of the court, this order may be changed if
necessary. 15

In the present case, the existence of the original sales invoices was established by the photocopies and
the testimony of Hernandez. Petitioner, however, failed to prove that the originals had been lost or
could not be produced in court after reasonable diligence and good faith in searching for
them.chanrob1es virtua1 1aw 1ibrary

Indeed, the loss of the originals and reasonable diligence in the search for them were conditions that
were not met, because the sales invoices might have been found by Equitable. Hernandez, testifying
that he had requested the originals from Equitable, failed to show that he had subsequently followed up
the request. 16

Finally, when more than one original copy exists, it must appear that all of them have been lost,
destroyed, or cannot be produced in court before secondary evidence can be given of any one. A
photocopy may not be used without accounting for the other originals. 17

In Santos v. Santos 18 the Court upheld the pronouncement of the CA that before the appellees therein
could be allowed to adduce secondary evidence to prove the contents of the original, they had to prove
— with the requisite quantum of evidence — the loss, the destruction or the unavailability of all original
copies of the document.

In the present case, triplicates were produced, although the cardholder signed the sales invoice only
once. 19 During the trial, Hernandez explained that an original copy had gone to respondent, another to
the merchant, and still another to petitioner. 20

Each of these three copies is regarded as an original in accordance with Section 4 (b) of Rule 130 of the
Rules of Court. 21 Petitioner failed to show that all three original copies were unavailable, and that due
diligence had been exercised in the search for them.

WHEREFORE, the Petition is DENIED. Costs against petitioner.chanrob1es virtua1 1aw 1ibrary

SO ORDERED.

Puno, Sandoval-Gutierrez, Corona and Carpio-Morales, JJ., concur.

414
[G.R. No. 83377. February 9, 1993.]

BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by
GLICERIA PAPA-FRANCISCO, Et Al., Petitioners, v. SPOUSES MARIANO AGUILAR and LEONA V.
AGUILAR, Respondents.

Pablo M. Gancayco, for Petitioners.

De Mesa, Villarica & Associates for Respondents.

SYLLABUS

1. REMEDIAL LAW; SECONDARY EVIDENCE WHEN ORIGINAL IS LOST OR DESTROYED; WHEN ADMISSIBLE.
— Secondary evidence is admissible when the original documents were actually lost or destroyed. But
prior to the introduction of such secondary evidence, the proponent must establish the former
existence of the instrument. The correct order of proof is as follows: Existence; execution loss; contents
although this order may be changed if necessary in the discretion of the court. The sufficiency of proof
offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the
trial court under all the circumstances of the particular case. In establishing the execution of a document
the same may be established by the person or persons who executed it, by the person before whom its
execution was acknowledged, or by any person who was present and saw it executed or who, after its
execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument
had previously confessed the execution thereof. After the due execution of the document has been
established, it must next be proved that said document has been lost or destroyed. The destruction of
the instrument may be proved by any person knowing the fact. The loss may be shown by any person
who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient
examination in the place or places where the document or papers of similar character are usually kept
by the person in whose custody the document lost was, and has been unable to find it; or who has made
any other investigation which is sufficient to satisfy the court that the instrument is indeed lost.

2. ALL DUPLICATES OR COUNTERPARTS MUST BE ACCOUNTED FOR BEFORE USING COPIES. — However,
all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or
multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing
itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained
by the opponent or by a third person or the like). In the case at bar, Atty. Emiliano Ibasco, Jr., notary
public who notarized the document testified that the alleged deed of sale has about four or five original
copies. Hence, all originals must be accounted for before secondary evidence can be given of any one.
This petitioners failed to do. Records show that petitioners merely accounted for three out of four or
five original copies.

DECISION

CAMPOS, JR., J.:

This is a petition for review on certiorari of the decision ** of the Court of Appeals dated November 27,
1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia
de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de Vera-Torres, represented
by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-
appellants", which reversed the decision *** of the Regional Trial Court of Bulacan, Third Judicial Region,
Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all
its duplicate original copies.

415
The undisputed facts are as follows:chanrob1es virtual 1aw library

Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona,
married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who
died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated at
Camalig, Meycauayan, Bulacan, with an are of 4,195 square meters, designated as Cadastral Lot NO.
3621, Cad. 337, Case No. 4, Meycauayan Cadastre.

The disputed property was mortgaged by respondents Basilio and Felipe de Vera to a certain Atty.
Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from
Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of
absolute sale dated February 11, 1956.

On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan
resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of
another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying
taxes on the land.

On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which
Original Certificate of Title No. P-1356 (M) was issued in his name.

On September 1, 1980, the respondents wrote to the respondents claiming that as children of Marcosa
Bernabe, they were co-owners of the property and demanded partition thereof on threats that the
respondents would be charged with perjury and/or falsification. The petitioners also claimed that the
respondents had resold the property to Marcosa Bernabe on April 28, 1959.

On September 27, 1980, the respondents wrote in reply to the respondents that they were the sole
owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe.

True to respondents’ threat, they filed a falsification case against the respondents. However, on March
31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the
charge of falsification of public document against the respondents for lack of a prima facie case.

On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of
Title No. P-1356 (M).

On July 31, 1985, the trial court rendered its decision **** the dispositive portion of which reads as
follows:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered ordering defendants:chanrob1es virtual 1aw library

1. To reconvey the property in question to the plaintiffs;

2. To pay plaintiffs P10,000.00 as litigation expenses;

3. To pay plaintiffs P5,000.00 as exemplary damages;

4. To pay P10,000.00 as attorney’s fees.

SO ORDERED." 1

In ruling in favor of the respondents, the trial court admitted, over the objection of the respondents,
Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the
respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for
and in consideration of P1,500.00.

Not contented with the decision, respondents appealed to the Court of Appeals contending that they
never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended

416
that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28,
1959, the same was not the best evidence of the alleged sale hence it should have been excluded and
should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that
the existence of the document of sale dated April 28, 1959 had been duly established by the testimony
of the notary public before whom it was acknowledged and by Luis de Vera who was present during its
execution and that the loss of the original document had been proven by the testimony of the
representatives of the offices of the National Archives and the Provincial Assessor of Bulacan.

On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court’s decision. It
found that the loss or destruction of the original deed of sale has not been duly proven by the
petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of
sale is inadmissible.

Hence this petition.

The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original
deed of sale so as to allow the presentation of the xeroxed copy of the same.

We rule in the negative.

Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence
states:jgc:chanrobles.com.ph

"Sec. 4. Secondary evidence when original is lost or destroyed. — When the original writing has been
lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or
unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic
document, or by the recollection of witnesses."cralaw virtua1aw library

Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior
to the introduction of such secondary evidence, the proponent must establish the former existence of
the instrument. The correct order of proof is as follows: Existence; execution loss; contents although this
order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a
predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court
under all the circumstances of the particular case. 2

A reading of the decision of the trial court shows that it merely ruled on the existence and due execution
of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances
surrounding the loss or destruction of the original copies of the alleged deed of sale.

In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of
a xeroxed copy of the alleged deed of absolute sale.

In establishing the execution of a document the same may be established by the person or persons who
executed it, by the person before whom its execution was acknowledged, or by any person who was
present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a
person to whom the parties to the instrument had previously confessed the execution thereof. 3

We agree with the trial court’s findings that petitioners have sufficiently established the due execution
of the alleged deed of sale through the testimony of the notary public to wit:jgc:chanrobles.com.ph

"Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty.
Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the spouses
and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified the
document." 4

After the due execution of the document has been established, it must next be proved that said
document has been lost or destroyed. The destruction of the instrument may be proved by any person
knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who

417
had made, in the judgment of the court, a sufficient examination in the place or places where the
document or papers of similar character are usually kept by the person in whose custody the document
lost was, and has been unable to find it; or who has made any other investigation which is sufficient to
satisfy the court that the instrument is indeed lost. 5

However, all duplicates or counterparts must be accounted for before using copies. For, since all the
duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of
the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e.
lost, retained by the opponent or by a third person or the like). 6

In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the
alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted for
before secondary evidence can be given of any one. This petitioners failed to do. Records show that
petitioners merely accounted for three out of four or five original copies.

In reversing the trial court, the respondent Court of Appeals considered the following
points:jgc:chanrobles.com.ph

"Asked on the witness stand where the original of the document (Exhibit A) was plaintiff-appellee Luis
de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees
reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno. Tecson). The same
question propounded to the same witness at the next hearing, he replied that in the early part of 1976
his sister Maria borrowed from him the original document and a certified true copy thereof and brought
them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that
when she returned she told him that the original copy of the document was submitted to that office
"and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8,
tsn., December 10, 1981, Steno. Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno. Vallarta).

Indeed, upon the appellees’ own evidence the original of the deed of sale in question, a purported xerox
copy and certified true copy of which are marked Exhibits A and B, has not been lost or destroyed. It was
submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore,
should have asked that office to produce it in court and it if could not be produced for one reason or
another should have called the Register of Deeds or his representative to explain why. That they failed
to do. The loss or destruction of the original of the document in question has not, therefore, been
established. Hence, secondary evidence of it is inadmissible . . . .

Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the
deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was
gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno. Crisostomo) establish the loss or
destruction of the original document in question. What was lost or destroyed in the custody of Atty.
Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito
Timoteo, representative of the Assessor’s Office of Bulacan, to the effect that he failed to see the deed
of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982,
Steno. Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no
copy of the document in question because the notary public might not have submitted a copy thereof;
or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were
destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno. Tecson), prove loss or destruction of the
original and of all the duplicate original copies of the document in question." 8

We find no cogent reason to rule otherwise.

WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby AFFIRMED.

SO ORDERED.

Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur.

[G.R. NO. 166899 : August 10, 2006]

418
HEIRS OF PASTORA LOZANO, represented by their Attorney-in-Fact, EDUARDO
LOZANO, Petitioner, v. THE REGISTER OF DEEDS, LINGAYEN, PANGASINAN, and REPUBLIC OF THE
PHILIPPINES, Respondents.

DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court seeking to
reverse the Decision 1 of the Court of Appeals (CA) 2 in CA-G.R. CV No. 66632, which annulled and set
aside the ruling 3 of the Regional Trial Court (RTC) of Villasis, Pangasinan, Branch 50 in Petition No. V-
0036 (Cad. Lot No. 196, T.C.T. No. 17100), as well as the resolution denying the motion for
reconsideration thereof.

On August 7, 1998, Pastora R. Lozano filed a petition with the RTC of Villasis, Pangasinan, for the
reconstitution of the original copy of Transfer Certificate of Title (TCT) No. 17100 covering Lot No. 196 of
the Cadastral Survey of Villasis, Pangasinan. She prayed that, after due notice, publication, and hearing,
an order be issued directing the Register of Deeds of Lingayen, Pangasinan to reconstitute the office file
of the title to be based on the technical description embodied in the owner's duplicate copy itself, upon
payment of the required legal fees.4

On August 12, 1998, the RTC issued an Order 5 setting the initial hearing of the petition at 8:30 a.m. on
December 2, 1998. During the hearing, petitioner did not appear. Neither was there any opposition to
the petition, although the Assistant Provincial Prosecutor entered his special appearance for the
Republic of the Philippines. The hearing was reset at 8:30 a.m. on January 27, 1999.6 However, on
January 11, 1999, the trial court learned that its August 12, 1998 Order had not been published in a
newspaper of general circulation in Pangasinan, or in the Official Gazette, as mandated by law. The
hearing set on January 27, 1999 was cancelled.7

Also, on January 11, 1999, the RTC issued an Order 8 stating that the petition, being sufficient in form
and substance, set for initial hearing at 8:30 a.m. on July 8, 1999, and all interested persons were
enjoined to appear and show cause why the same should not be granted.

On March 27, 1999, petitioner died intestate and was survived by her heirs.9 Thereafter, the heirs
prayed that they be substituted as petitioners, 10 attaching thereto a Special Power of Attorney
appointing German R. Lozano as representative in the case.

During the July 8, 1999 hearing, petitioners failed to prove that the January 11, 1999 Order of the court
was posted at the main entrance of the Provincial Capitol, the Office of the Register of Deeds, and at the
Municipal Hall of Villasis, Pangasinan. Despite the foregoing, the trial court issued on July 8, 1999 an
Order of General Default, declaring that petitioners were able to establish the jurisdictional
requirements for the court to take cognizance of the petition.11

During the hearing on October 19, 1999, German R. Lozano testified. However, petitioners reserved
their right to submit as evidence the deed executed by Sixto Dominguez covering the property in favor
of the spouses Marciano Racadio and Emiliana Galima.12 The deed was not adduced in evidence, and in
lieu thereof, petitioners offered a Certificate issued by the Acting Register of Deeds that the original file
copy of the Deed of Conveyance in favor of said spouses could not be located and "is presumed lost or
destroyed as a consequence of the lost record." 13

Petitioners adduced the following testimonial and documentary evidence: the spouses Marciano
Racadio and Emiliana Galima were the registered owners of the property located at San Andres Street,
Zone IV, Villasis, Pangasinan, with an area of 1,352 square meters covered by TCT No. 17100. Upon the
demise of the spouses Racadio, they were survived by their daughter, Pastora Lozano, as sole
heir.14 Sometime in 1957, Pastora Lozano left Pangasinan and was employed in Manila. She entrusted
the owner's duplicate of TCT No. 17100 15 to German R. Lozano who, since then had been in possession
of said certificate of title.16 They were not aware how the spouses Marciano Racadio and Emiliana

419
Galima acquired the property, but Pastora Lozano used to tell German Lozano that it was acquired from
Sixto Dominguez.17 The property was declared for taxation purposes in 1998 under the name of
Marciano Racadio as owner, under Tax Declaration No. 004-00250, 18 and that the realty taxes on the
property were paid for 1998-1999.19 Petitioners had a technical description of the property issued by a
surveyor of the Local Management Office on July 9, 1999.20

On cross-examination, German Lozano admitted that the owner's duplicate of TCT No. 17100 does not
contain the signature of the Register of Deeds, and that the number of the title is
handwritten.21 Petitioners formally offered their documentary evidence which the court admitted "for
whatever they might be worth." 22

On January 26, 2000, the RTC rendered judgment granting the petition. The fallo of the decision reads:

WHEREFORE, the court, finding the documentary and parole evidence adduced to be adequate and
sufficiently persuasive to warrant the reconstitution of Transfer Certificate of Title No. 17100, and
pursuant to Section 110, PD 1529 and Sections 2(a) and 15 of R.A. 26, hereby directs the Register of
Deeds of Lingayen, Pangasinan to reconstitute the office file copy of Transfer Certificate of Title No.
17100 covering the subject lot in the name of the registered owner-spouses Marciano Racadio and
Emiliana Galima as appearing in the owner's duplicate copy of TCT No. 17100, without prejudice to the
annotation of subsisting rights or interests not duly noted in these proceedings, if any, and the right of
the Administrator, Land Registration Authority, as provided for in Section 16, Land Registration
Commission (now NALDTRA) Circular No. 35 dated June 13, 1983.

SO ORDERED.23

The Republic of the Philippines, through the Office of the Solicitor General (OSG), as appellant, appealed
the decision to the CA.

In its Appellant's Brief, the OSG assigned the lone error that the trial court erred in ordering the Register
of Deeds of Lingayen, Pangasinan to reconstitute the office file copy of TCT No. 17100 on the basis of an
unauthenticated owner's duplicate copy.24

It averred that petitioners failed to adduce in evidence the owner's duplicate of TCT No. 17100 which
bears the signature of the Register of Deeds. Since petitioners failed to establish the genuineness and
due execution of the owner's duplicate copy of the title certificate, the trial court erred in granting the
petition.25

For their part, the heirs of Pastora Lozano alleged that since the owner's duplicate of TCT No. 17100 26 is
the duplicate original of TCT No. 17100 within the context of Rule 130, Section 4 of the Revised Rules of
Evidence, proof of the execution and genuineness of the owner's duplicate copy is no longer necessary.
Besides, the owner's duplicate of said title is in the nature of a public document, hence, admissible in
evidence without further proof of due execution or genuineness. Moreover, no private parties opposed
the petition. It behooved the oppositor to prove that the owner's duplicate of TCT No.
17100 27 presented was not a duplicate copy thereof.

On August 27, 2004, the CA rendered judgment granting the appeal, holding as follows:

After a thorough consideration of both parties' contentions, [w]e are convinced that the instant appeal
is impressed with merit.

We give utmost consideration to the fact that the owner's duplicate copy presented by appellee was not
duly signed by the Register of Deeds. This defect was neither clarified nor justified by appellee both
before the lower court and before Us on appeal. Appellee merely explained that what was presented
before the court was a duplicate original, and thus, need not be authenticated. Such explanation,
however, does not change the fact that the owner's duplicate does not contain the Register of Deeds'
signature, making the title inherently flawed.

Under Section 41, Act No. 496, it is provided that:

420
"Immediately upon the entry of the decree of registration the clerk shall send a certified copy thereof,
under the seal of the court to the register of deeds for the province, or provinces or city in which the
land lies, and the register of deeds shall transcribe the decree in a book to be called the "Registration
Book," in which a leaf, or leaves, in consecutive order, shall be devoted exclusively to each title. The
entry made by the register of deeds in this book in each case shall be the original certificate of title, and
shall be signed by him and sealed with the seal of the court. All certificates of title shall be numbered
consecutively, beginning with number one. The register of deeds in each case make an exact duplicate
of the original certificate, including the seal, but putting on it the words "owner's duplicate certificate,"
and deliver the same to the owner or to his attorney duly authorized. In case of a variance between the
owner's duplicate certificate and the original certificate, the original shall prevail. The certified copy of
the decree of registration shall be filed and numbered by the register of deeds with a reference noted
on it to the place of record of the original certificate of title: Provided, however, That when an
application includes land lying in more than one province or one province and the city of Manila, the
court shall cause the part lying in each province or in the city of Manila to be described separately by
metes and bounds in the decree of registration, and the clerk shall send to the register of deeds of each
province, or the city of Manila, as the case may be, a copy of the decree containing a description of the
land within that province or city, and the register of deeds shall register the same and issue an owner's
duplicate therefor, and thereafter for all matters pertaining to registration under this Act the portion in
each province or city shall be treated as a separate parcel of land." (Emphasis supplied)cralawlibrary

Without the signature of the Register of Deeds, the owner's duplicate copy presented by appellee as
basis for the reconstitution could definitely be categorized as spurious and of dubious origin. It would be
very difficult to support and uphold the validity of a public document which does not bear the signature
of the official in charge of the office which issued such document. In all candidness, the trial court
should have been more circumspect in appraising the value of the document presented before it.
Although no person came forward to contest the reconstitution of the subject title even after the
requirements of posting and publication have been complied with, the duplicate copy presented by
appellee, on its face, is apparently flawed. In addition, the manner the title number was written should
have also alarmed the trial court as it was obviously different from the other entries in the title.28

Petitioners filed a motion for reconsideration, which the appellate court resolved to deny on September
28, 2004.29

Thus, the instant Petition for Review on Certiorari, where petitioners assail the appellate court's ruling
and contend that the RTC did not err when it ordered the Register of Deeds of Lingayen, Pangasinan, to
reconstitute the office file copy of TCT No. 17100 on the basis of the unauthenticated duplicate
copy.30 Petitioners assert that, even if the duplicate original submitted by them is unsigned, this should
not militate against their petition as they are not at fault. The lack of signature of the Register of Deeds
is merely an irregularity that does not render the owner's duplicate void. Besides, the issue of the
validity of a Torrens title may be raised only in an action specifically brought to impugn or annul said
title.

In its Comment on the petition, the OSG made the following averments:

3. It is respectfully submitted that the issue submitted for resolution by petitioner as ground for the
review of the assailed Court of Appeals' Decision is totally irrelevant and immaterial to the sole and
primordial issue in cases of reconstitution of the original copy of certificates of title on file with the
Registry of Deeds, i.e., whether or not petitioner presented a competent source for the reconstitution of
the certificate of title.

4. It is respectfully submitted that the Court of Appeals did not err when it declared that petitioner's
owner's duplicate copy is not a competent source for the reconstitution of the original copy of Transfer
Certificate of Title No. 17100, the same being not duly signed by the issuing Register of Deeds and its
number being handwritten. Petitioner failed to explain such defect/irregularity.

While public documents, e.g., owner's duplicate copy of certificate of title, are admissible in evidence
without further proof of their due execution or genuineness (Antillon v. Barcelon, 37 Phil. 148 [1917]),
the rule does not apply where, on its face, such documents are not authenticated by the official

421
signature and seal which they are supposed to bear. Thus, while petitioner may argue that the subject
property is covered by a certificate of title which was lost/destroyed, she is also duty-bound to present a
competent source for its reconstitution. This, petitioner failed to do. Thus, no error may be attributed to
the Court of Appeals when it reversed and set aside the RTC Decision dated January 26, 2000.31

The sole issue is whether or not the owner's duplicate which does not bear the signature of the Register
of Deeds is a competent source on which a reconstitution of a title certificate may be based.

The petition is denied for lack of merit.

Petitioners seek the reconstitution of the original copy of TCT No. 17100 in the custody of the Register of
Deeds of Lingayen, Pangasinan. Section 10 of Republic Act (Rep. Act) No. 26 provides that the court
before which a petition for the reconstitution of a TCT is filed shall cause a notice of the petition to be
posted on the main entrance of the Provincial Capitol Building and of the municipal building of the
municipality where the property is located, at least 30 days prior to the date of hearing, as provided in
Section 9, which reads:

Sec. 9. A registered owner desiring to have his reconstituted certificate of title freed from the
encumbrance mentioned in section seven of this Act, may file a petition to that end with the proper
Court of First Instance, giving his reason or reasons therefor. A similar petition may, likewise, be filed by
a mortgagee, lessee or other lien holder whose interest is annotated in the reconstituted certificate of
title. Thereupon, the court shall cause a notice of the petition to be published, at the expense of the
petitioner, twice in successive issues of the Official Gazette, and to be posted on the main entrance of
the provincial building and of the municipal building of the municipality or city in which the land lies, at
least thirty days prior to the date of hearing, and after hearing, shall determine the petition and render
such judgment as justice and equity may require. The notice shall specify, among other things, the
number of the certificate of title, the name of the registered owner, the names of the interested parties
appearing in the reconstituted certificate of title, the location of the property, and the date on which all
persons having an interest in the property must appear and file such claim as they may have. The
petitioner shall, at the hearing, submit proof of the publication and posting of the notice. (Emphasis
supplied)cralawlibrary

Sec. 10. Nothing hereinbefore provided shall prevent any registered owner or person in interest from
filing the petition mentioned in Section five of this Act directly with the proper Court of First Instance,
based on sources enumerated in Sections 2(a), 2(b), 3(a), 3(b) and/or 4(a) of this Act: Provided, however,
That the Court shall cause a notice of the petition, before hearing and granting the same, to be
published in the manner stated in Section nine hereof: And, provided, further, That certificates of title
reconstituted pursuant to this section shall not be subject to the encumbrance referred to in Section
seven of this Act.

In a catena of cases, 32 the Court has ruled that the requirements under Rep. Act No. 26 are
indispensable and must be strictly complied with.33 In this case, petitioners failed to cause the posting of
the trial court's Order dated January 11, 1999 at the main entrance of the Provincial Capitol of Lingayen
and at the Municipal Hall of Villasis; consequently, the trial court did not acquire any jurisdiction over
the petition for reconstitution.

In Director of Lands v. Court of Appeals, 34 the Court ruled that the requirements of Rep. Act No. 26 must
be interpreted strictly and must be applied vigorously with exactness and precision to safeguard against
spurious, unfounded land ownership claims.35

It appears that the petitioners offered in evidence, as Exhibit "B," the Return of Sheriff Rodolfo Alcantara,
Jr. for the purpose of proving, as the certification states, that he caused the posting of the petition, as
well as the Order of the court dated January 11, 1999, in four (4) conspicuous places.36 The Sheriff's
Return adverted to by petitioners appears on page 9 of the RTC records and reads:

SHERIFF'S RETURN

422
In compliance with the Order of this Court dated August 12, 1998, issued by the Honorable Court in the
above-entitled case, the undersigned has caused the posting of the copies of Order and Petition and its
Annexes in the following places:

1. Bulletin Board, RTC-Br. 50, Villasis, Pangasinan.

2. Provincial Capitol, Lingayen, Pangasinan.

3. The Registry of Deeds, Lingayen, Pangasinan.

4. Municipal Hall, Villasis, Pangasinan.

Villasis, Pangasinan, this 20th day of August, 1998.

Signature

RODOLFO A. ALCANTARA, JR.

Sheriff IV 37

Patently, the Order referred to in the Sheriff's Return is the August 12, 1998 Order of the court and not
its January 11, 1999 Order. In the August 12, 1998 Order of the trial court, the hearing of the petition
was set on December 2, 1998. However, the initial hearing on said date was cancelled and reset to July 8,
1999 at 8:30 a.m., per order of the court on January 11, 1999. In fine, the Sheriff failed to post the trial
court's January 11, 1999 Order.

Under Section 3 of Rep. Act No. 26, petitioners were burdened to adduce in evidence the documents in
the order stated therein as sources of the deed to be reconstituted, namely:

(a) The owner's duplicate of the certificate of title;

(b) The co-owner's, mortgagee's, or lessee's duplicate of the certificate of title;

(c) A certified copy of the certificate of title, previously issued by the register of deeds or by a legal
custodian thereof;

(d) The deed of transfer or other document, on file in the Register of Deeds, containing the description
of the property, or an authenticated copy thereof, showing that its original had been registered, and
pursuant to which the lost or destroyed transfer certificate of title was issued;

(e) A document, on file in the Register of Deeds by which the property, the description of which is given
in said document, is mortgaged, leased or encumbered, or an authenticated copy of said document
showing that its original had been registered; andcralawlibrary

(f) Any other document which, in the judgment of the court, is sufficient and proper basis for
reconstituting the lost or destroyed certificate of title.

Petitioners were burdened to prove the execution or existence of the original copy of TCT No. 17100
which is the copy on file in the Office of the Register of Deeds, and the contents thereof.38

Clearly, petitioners failed to discharge their burden. Inexplicably, they even also failed to prove the due
execution of the original copy of TCT No. 17100, and failed to present any person before whom its
execution was authorized, and who was present when it was executed; or the person who, after its
execution saw it and recognized the signature of the Register of Deeds; or by a person to whom the
Register of Deeds authorized to oversee such execution.

The reconstitution of the title or deed is simply the re-issuance of the copy of the certificate of title
allegedly lost or destroyed in its original form and condition.39 The purpose of the reconstitution of title

423
or any document is to have the same reproduced, after observing the procedure provided by law, in the
same form they were when the loss or destruction occurred.40

Section 41, second paragraph of Act No. 496 reads:

"Immediately upon the entry of the decree of registration the clerk shall send a certified copy thereof,
under the seal of the court to the register of deeds for the province, or provinces or city in which the
land lies, and the register of deeds shall transcribe the decree in a book to be called the "Registration
Book," in which a leaf, or leaves, in consecutive order, shall be devoted exclusively toe ach title. The
entry made by the register of deeds in this book in each case shall be the original certificate of title, and
shall be signed by him and sealed with the seal of the court. All certificates of title shall be numbered
consecutively, beginning with number one. The register of deeds in each case make an exact duplicate
of the original certificate, including the seal, but putting on it the words "owner's duplicate certificate,"
and deliver the same to the owner or to his attorney duly authorized. In case of a variance between the
owner's duplicate certificate and the original certificate the original shall prevail. The certified copy of
the decree of registration shall be filed and numbered by the register of deeds with a reference noted
on it to the place of record of the original certificate of title: Provided, however, That when an
application includes land lying in more than one province or one province and the city of Manila, the
court shall cause the part lying in each province or in the city of Manila to be described separately by
metes and bounds in the decree of registration, and the clerk shall send to the register of deeds of each
province, or the city of Manila, as the case may be, a copy of the decree containing a description of the
land within that province or city, and the register of deeds shall register the same and issue an owner's
duplicate therefore, and thereafter for all matters pertaining to registration under this Act the portion in
each province or city shall be treated as a separate parcel of land." (Emphasis supplied)cralawlibrary

Any title issued by the Register of Deeds, including the original copy on file in the Office of the Register
of Deeds or the owner's duplicate of said

title, must bear the signature of the Register of Deeds. Hence, the owner's duplicate copy of title relied
upon by the petitioner must be authentic and not spurious. In this case, the owner's duplicate of TCT No.
17100 which petitioners adduced in evidence is not signed by the Register of Deeds, and does not even
contain the number of the title certificate. After the words "Certifico de Transferencio De Titulo No." is a
blank space where the number of the title is supposed to be typewritten. The petitioners failed to
explain why the owner's duplicate of TCT No. 17100 does not contain such signature. Thus, the ruling of
the CA that the owner's duplicate presented by the petitioners is spurious is correct.

It appears that TCT No. 17100 was issued on October 3, 1940 in the names of the spouses Racadio.
However, the property was not declared for taxation purposes since then. It was only in 1998, long after
the demise of the spouses, that the property was declared for taxation purposes under their names and
the realty taxes due thereon were paid.41

German Lozano surmised that his grandparents, the spouses Racadio, acquired the property from Sixto
Dominguez.42 From the face of the owner's duplicate of TCT No. 17100, it was issued in 1940. Assuming
that the claim of petitioners that the spouses Racadio had acquired the property from Sixto Dominguez
as early as 1940, they nevertheless still failed to explain why the technical description of the property
prepared by the Land Management Office under the Department of Environment and Natural Resources
on July 9, 1998, is still in the name of Sixto Dominguez.43 When asked if he scrutinized the technical
description of the property before submitting it to the court, German Lozano admitted that he failed to
do so.

Q Do you know a person b y the name of Sixto Dominguez?cralawlibrary

A My mother was saying before that she bought that from Sixto Dominguez.

Q In fact, this Sixto Dominguez was the one who caused the survey of this lot as indicated here in the
certification?cralawlibrary

A I don't know if he was the one who caused the survey, Sir.

424
Q And who secured this Exh. "U" which is the technical description?cralawlibrary

A I was the one who secured it from San Fernando, La Union, Sir.

Q You did not scrutinize this certification anymore when you received this certification from the DENR,
San Fernando, La Union?cralawlibrary

A I did not scrutinize it, Sir, because my purpose is only to get the technical description of the lot.44

Petitioners even failed to adduce in evidence a certified true copy of TCT No. 17009-P as proof that such
title exists and is in the name of Sixto Dominguez. Indeed, there is no evidence on record that the
spouses Racadio acquired the property from Sixto Dominguez.

Obviously, the trial court failed to scrutinize and verify carefully the owner's duplicate offered by
petitioners and the accompanying documents of the petition for reconstitution. Once again, the Court
reiterates its warning in Tahanan Development Corporation v. Court of Appeals: 45

Time and again, the integrity and inviolability of Torrens titles issued pursuant to the Land Registration
Act (Act 496) and Presidential Decree No. 1529 have been shaken by the very courts whose unwavering
duty should be to protect the rights and interests of title holders but instead have favored claimants
under the guise of reconstitution filed after a long lapse of time after the Japanese occupation, alleging
the existence of original and duplicate certificates of title issued pursuant to a court decree but have
subsequently been lost or destroyed including the records of the land registration case on account of
the war and lay claim and title to valuable parcels of land previously titled and registered under the
Torrens registration system and are even able to dispose these properties to unsuspecting homelot
buyers and speculating land developers. The courts must be cautious and careful in granting
reconstitution of lost or destroyed certificates of title, both original and duplicate owner's, based on
documents and decrees made to appear authentic from mere xerox copies and certifications of officials
supposedly signed with the seals of their office affixed thereon, considering the ease and facility with
which documents are made to appear as official and authentic. It is the duty of the court to scrutinize
and verify carefully all supporting documents, deeds and certifications. Each and every fact,
circumstance or incident which corroborates or relates to the existence and loss of the title should be
examined.46

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED for lack of merit. The assailed Decision and
Resolution of the Court of Appeals are AFFIRMED.

SO ORDERED.

[G.R. NO. 152881 : August 17, 2004]

ENGR. BAYANI MAGDAYAO, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

Before us is a Petition for Review on Certiorari filed by petitioner Engr. Bayani Magdayao of the
Decision1 of the Court of Appeals in CA-G.R. CR No. 20549 affirming the Decision2 of the Regional Trial
Court, Dipolog City, Branch 8, convicting the petitioner of violation of Batas Pambansa (B.P.) Blg. 22.

The Antecedents

An Information was filed charging petitioner with violation of B.P. Blg. 22 on September 16, 1993, the
accusatory portion of which reads:

On or about September 30, 1991, at Dipolog City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, knowing fully well that he did not have sufficient funds in

425
or credit with the drawee bank, Philippine National Bank, Dipolog Branch, did then and there willfully,
unlawfully and feloniously make, draw, issue and deliver to one RICKY OLVIS, in payment of his
obligation to the latter, PNB Check No. 399967 dated September 30, 1991 in the amount of SIX
HUNDRED THOUSAND PESOS (P600,000.00), Philippine Currency, which check, however, when
presented for payment with PNB-Dipolog Branch, was dishonored and refused payment for the reason
that it was drawn against insufficient funds, and despite repeated demands made by the private
complainant on the accused, the latter, failed to make good the check's value, to the damage and
prejudice of RICKY OLVIS in the aforestated amount.

CONTRARY TO LAW.3

When arraigned, the petitioner, assisted by counsel, entered a plea of not guilty.

When the case for trial was called on June 7, 1995 for the prosecution to adduce its evidence, the
petitioner and his counsel were absent. On motion of the prosecution, the court allowed it to adduce
evidence. The prosecution presented the private complainant, Ricky Olvis, who testified on direct
examination that on September 30, 1991, the petitioner drew and issued to him Philippine National
Bank (PNB) Check No. 399967 dated September 30, 1991 in the amount of P600,000.00. The said check
was drawn against the latter's account with the PNB, Dipolog City Branch, and issued in payment of the
petitioner's obligation with Olvis. The latter deposited the check on October 1, 1991 in his account with
the BPI-Family Bank, Dipolog City Branch, but the drawee bank dishonored the check for the reason
"Drawn Against Insufficient Funds" stamped on the dorsal portion of the check. Olvis testified that when
informed that his check was dishonored, the petitioner pleaded for time to pay the amount thereof, but
reneged on his promise. Olvis then filed a criminal complaint against the petitioner for violation of B.P.
Blg. 22 on September 4, 1992, docketed as I.S. No. 92-368. The petitioner again offered to repay Olvis
the amount of the obligation by retrieving the dishonored check and replacing the same with two other
checks: one for P400,000.00 and another for P200,000.00 payable to Olvis. Taking pity on the petitioner,
he agreed. He then returned the original copy of the check to the petitioner, but the latter again failed
to make good on his promise and failed to pay the P600,000.00.

The prosecution wanted Olvis to identify the petitioner as the drawer of the check, but because of the
latter's absence and that of his counsel, the direct examination on the witness could not be terminated.
The prosecution moved that such direct examination of Olvis be continued on another date, and that
the petitioner be ordered to appear before the court so that he could be identified as the drawer of the
subject check. The trial court granted the motion and set the continuation of the trial on June 13, 1997.
In the meantime, the prosecution marked a photocopy of PNB Check No. 399967 as Exhibit "A," and the
dorsal portion thereof as Exhibit "A-1."

After several postponements at the instance of the petitioner, he and his counsel failed to appear
before the court for continuation of trial. They again failed to appear when the case was called for
continuation of trial on November 21, 1995. The prosecution offered in evidence the photocopy of PNB
Check No. 399967, which the court admitted. The trial court, thereafter, issued an Order declaring the
case submitted for decision.4 The petitioner filed a motion for a reconsideration of the Order, which the
trial court denied on January 26, 1996.

The petitioner then filed an Omnibus Supplemental Motion and to Allow Him to Adduce Evidence
alleging, inter alia, that:

h) Despite the absence of the original, with only a xerox copy of the PNB Check worth P600,000.00, and
further stressing that the same was paid, the prosecutor insisted, against the vigorous objection of
accused, in filing the case in Court. Plenty of water passed under the bridge since then;5

In its Opposition to the said motion, the prosecution averred that it dispensed with the presentation of
the original of the dishonored check because the same had been returned to the petitioner. It also
pointed out that the petitioner failed to object to the presentation of the photocopy of the dishonored
check.

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In a Special Manifestation, the petitioner insisted that the photocopy of the subject check was
inadmissible in evidence because of the prosecution's failure to produce the original thereof. On July 8,
1996, the trial court issued an Order denying the petitioner's motion. The petitioner's motion for
reconsideration thereon was, likewise, denied by the trial court.

On January 29, 1996, the trial court rendered judgment convicting the petitioner of the crime charged.
The fallo of the decision reads:

WHEREFORE, finding the guilt of the accused established beyond reasonable doubt, the herein accused,
Engr. Bayani Magdayao is convicted of the crime charged against him for Violation of Batas Pambansa
Bilang 22, as principal by direct participation, and pursuant to Section 1 thereof sentenced to suffer the
penalty of imprisonment for a period of six (6) months of arresto mayor and to pay the costs. The
accused is further ordered to pay the private complainant the sum of P600,000.00 corresponding to his
obligation due to the private offended party.

SO ORDERED.6

On appeal to the Court of Appeals, the petitioner assigned the following errors:

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED SOLELY ON THE
BASIS OF THE FOLLOWING EVIDENCE:

A. MACHINE OR PHOTOSTATIC COPY OF PNB CHECK NO. 399967 DATED SEPTEMBER 30, 1991;

B. WORD "DAIF" AT THE BACK OF THE PHOTOSTATIC COPY OF SAID CHECK;

C. UNCORROBORATED ORAL TESTIMONY OF PRIVATE COMPLAINANT.

II

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED WITHOUT HIM BEING POSITIVELY IDENTIFIED
BY THE COMPLAINANT OR OTHER WITNESS.

III

THE LOWER COURT ERRED WHEN IT RENDERED THE DECISION WITH ALLEGED FINDINGS OF FACTS NOT
SUFFICIENTLY SUPPORTED BY EVIDENCE.

IV

THE LOWER COURT ERRED IN AWARDING CIVIL INDEMNITY TO PRIVATE COMPLAINANT IN THE
AMOUNT OF SIX HUNDRED THOUSAND PESOS.7

On December 21, 2001, the CA rendered judgment affirming the decision of the trial court. The
appellate court also denied the petitioner's motion for reconsideration.

In his petition at bar, the petitioner merely reiterates the errors he ascribed to the RTC in his appeal
before the CA, and prays that the decisions of the trial and appellate courts be set aside.

The Ruling of the Court

The petition has no merit.

On the first three assignments of error, the petitioner avers that the prosecution failed to prove his guilt
beyond reasonable doubt of the crime charged because of the following: (a) the photocopy of PNB
Check No. 399967, adduced in evidence by the prosecution, is inadmissible in evidence under Rule 129,

427
Section 1 of the Revised Rules of Evidence; hence, has no probative weight; b) the prosecution failed to
present the BPI-Family Bank teller to testify on the presentment of PNB Check No. 399967 and the
dishonor thereof; and (c) the prosecution failed to prove that it was he who drew and delivered the
dishonored check to the private complainant, and that he was properly notified of the dishonor of the
said check. The petitioner also asserts that there was no legal basis for the award of the amount
of P6,000.00 as civil indemnity.

We rule against the petitioner.

Section 1 of B.P. Blg. 22 for which the petitioner was charged, reads:

Section 1. Checks without sufficient funds.' Any person who makes or draws and issues any check to
apply on account or for value, knowing at the time of issue that he does not have sufficient funds in or
credit with the drawee bank for the payment of such in full upon presentment, which check is
subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have been
dishonored for the same reason had not the drawer without any valid reason, ordered the bank to stop
payment, shall be punished by imprisonment of not less than thirty (30) days but not more than one (1)
year or by a fine of not less than but not more than double the amount of the check which fine shall in
no case exceed Two Hundred Thousand Pesos, or both such fine and imprisonment at the discretion of
the court.

To warrant the petitioner's conviction of the crime charged, the prosecution was burdened to prove the
following essential elements thereof:

(1) The making, drawing and issuance of any check to apply for account or for value;

(2) The knowledge of the maker, drawer, or issuer that at the time of issue he does not have sufficient
funds in or credit with the drawee bank for the payment of such check in full upon its presentment;
andcralawlibrary

(3) The subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit or
dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop
payment.8

The gravamen of the offense is the act of making or issuing a worthless check or a check that is
dishonored upon presentment for payment.9 As to the second element, knowledge on the part of the
maker or drawer of the check of the insufficiency of the funds in or credit with the bank to cover the
check upon its presentment refers to the state of mind of the drawer; hence, it is difficult for the
prosecution to prove. The law creates a prima facie knowledge on the insufficiency of funds or credit,
coincidental with the attendance of the two other elements. As such, Section 2 provides:

SEC. 2. Evidence of knowledge of insufficient funds. - The making, drawing and issuance of a check
payment of which is refused by the drawee because of insufficient funds in or credit with such bank,
when presented within ninety (90) days from the date of the check, shall be prima facie evidence of
knowledge of such insufficiency of funds or credit unless such maker or drawer pays the holder thereof
the amount due thereon, or makes arrangements for payment in full by the drawee of such check within
five (5) banking days after receiving notice that such check has not been paid by the drawee.

We agree with the petitioner that it was incumbent upon the prosecution to adduce in evidence the
original copy of PNB Check No. 399967 to prove the contents thereof, more specifically the names of the
drawer and endorsee, the date and amount and the dishonor thereof, as well as the reason for such
dishonor. Section 3, Rule 129 of the Revised Rules on Evidence specifically provides that when the
subject of inquiry is the contents of the document, no evidence shall be admissible other than the
original thereof. The purpose of the rule requiring the production by the offeror of the best evidence is
the prevention of fraud, because if a party is in possession of such evidence and withholds it and
presents inferior or secondary evidence in its place, the presumption is that the latter evidence is
withheld from the court and the adverse party for a fraudulent or devious purpose which its production
would expose and defeat.10 As long as the original evidence can be had, the court should not receive in

428
evidence that which is substitutionary in nature, such as photocopies, in the absence of any clear
showing that the original writing has been lost or destroyed or cannot be produced in court. Such
photocopies must be disregarded, being inadmissible evidence and barren of probative weight.11

Furthermore, under Section 3(b), Rule 130 of the said Rules, secondary evidence of a writing may be
admitted when the original is in the custody or under the control of the party against whom the
evidence is offered, and the latter fails to produce it after reasonable notice. To warrant the
admissibility of secondary evidence when the original of a writing is in the custody or control of the
adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice,
that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its
existence:

When original document is in adverse party's custody or control. - If the document is in the custody or
under the control of the adverse party, he must have reasonable notice to produce it. If after such
notice and after satisfactory proof of its existence, he fails to produce the document, secondary
evidence may be presented as in the case of its loss.

The mere fact that the original of the writing is in the custody or control of the party against whom it is
offered does not warrant the admission of secondary evidence. The offeror must prove that he has done
all in his power to secure the best evidence by giving notice to the said party to produce the
document.12 The notice may be in the form of a motion for the production of the original or made in
open court in the presence of the adverse party or via a subpoena duces tecum, provided that the party
in custody of the original has sufficient time to produce the same. When such party has the original of
the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may
be admitted.13

In this case, Olvis, the private complainant, testified that after the check was dishonored by the drawee
bank for insufficiency of funds, he returned it to the petitioner upon the latter's offer to pay the amount
of the check by drawing and issuing two checks, one for P400,000.00 and the other for P200,000.00.
However, the petitioner still failed to satisfy his obligation to Olvis:

Q Sometime in the month of May 1991, do you remember that (sic) you have any transaction with
the accused?chanroblesvirtualawlibrary

A Yes, Sir.

Q What was the transaction about?chanroblesvirtualawlibrary

A It was about our joint venture in Ipil.

Q What did the accused in this case issue to you?chanroblesvirtualawlibrary

A He issued me a check worth six hundred thousand pesos (P600,000.00).

Q If the photostatic copy of the check [would] be presented to you, would you be able to identify
it?chanroblesvirtualawlibrary

A Yes, Sir.

Q I am showing to you a photostatic copy of PNB Dipolog Branch Check # 399967 with a maturity
date on September 30, 1991 in the amount of six hundred thousand pesos (P600,000.00), is this the
check issued to you?chanroblesvirtualawlibrary

A Yes, Sir.

Q Here is a signature at the bottom corner of this check, whose signature is

this?chanroblesvirtualawlibrary

429
A Bayani Magdayao['s].

Q In other words, this check was issued for a valuable consideration in connection with the project
you have in Ipil?chanroblesvirtualawlibrary

A Yes, Sir.

Q What did you do with the check?chanroblesvirtualawlibrary

A I deposited this in BPI-Family Bank, but it was drawn against insufficient fund.

Q When did you deposit the check?chanroblesvirtualawlibrary

A Sometime in October.

Q October, what year?chanroblesvirtualawlibrary

A In 1991, Sir.

Q Within a reasonable period from the maturity date of the check, you caused it to be
deposited?chanroblesvirtualawlibrary

A Yes, Sir.

Q And this check was dishonored by the depository bank, that the account to which it was drawn
does not have sufficient fund, is that indicated in this check?chanroblesvirtualawlibrary

A Yes, Sir.

Q Where is that indication of dishonor for lack of sufficient fund?chanroblesvirtualawlibrary

A Here, Sir.

INTERPRETER: Witness pointing to the check.

ATTY. CO:

We pray, Your Honor, that the photostatic copy of the check be marked as Exhibit "A." The reason why it
was dishonored, found at the back of this check, indicated as "DAIF" meaning to say: "Drawn Against
Insufficient Fund" be marked as Exhibit "A-1."

Q After being informed that the check was dishonored by the drawee bank, what did you
do?chanroblesvirtualawlibrary

A I went to Magdayao's house and asked for payment but he refused to pay.

Q When you say Magdayao, are you referring to the accused in this case, Bayani
Magdayao?chanroblesvirtualawlibrary

A Yes, Sir.

Q It appears that this is merely a photostatic copy of the check, where is the original of the
check?chanroblesvirtualawlibrary

A Magdayao replaced the original check worth six hundred thousand pesos (P600,000.00), and he
gave me another check worth four hundred thousand pesos (P400,000.00) and two hundred thousand
pesos (P200,000.00).

430
Q At the time the accused in this case replaced this check worth six hundred thousand (P600,000.00),
was the case already pending before the City Fiscal's Office or before this Honorable
Court?chanroblesvirtualawlibrary

A Yes, Sir, it is pending.

Q Until now the amount of six hundred thousand pesos (P600,000.00) has not been paid to
you?chanroblesvirtualawlibrary

A Yes, Sir.14

In his "Motion to Suspend Proceedings" in the trial court, the petitioner admitted that he received the
original copy of the dishonored check from the private complainant15 and that he caused the non-
payment of the dishonored check.16 The petitioner cannot feign ignorance of the need for the
production of the original copy of PNB Check No. 399967, and the fact that the prosecution was able to
present in evidence only a photocopy thereof because the original was in his possession. In fact, in the
Omnibus Supplemental Motion dated February 8, 1996, and in his Special Manifestation filed on May 28,
1996, the petitioner complained of the prosecution's violation of the best evidence rule. The petitioner,
however, never produced the original of the check, much less offered to produce the same. The
petitioner deliberately withheld the original of the check as a bargaining chip for the court to grant him
an opportunity to adduce evidence in his defense, which he failed to do following his numerous
unjustified postponements as shown by the records.

There was no longer a need for the prosecution to present as witness the employee of the drawee bank
who made the notation at the dorsal portion of the dishonored check17 to testify that the same was
dishonored for having been drawn against insufficient funds. The petitioner had already been informed
of such fact of dishonor and the reason therefor when Olvis returned the original of the check to him. In
fact, as shown by the testimony of Olvis, the petitioner drew and issued two other separate checks, one
for P400,000.00 and the other for P200,000.00, to replace the dishonored check.

Because of his dilatory tactics, the petitioner failed to adduce evidence to overcome that of the
prosecution's.

The petitioner's contention that Olvis failed to identify him as the drawer of the subject check is
nettlesome. It bears stressing that Olvis was ready to identify the petitioner after his direct examination,
but the latter and his counsel inexplicably failed to appear. The direct examination of Olvis had to be
continued to enable him to point to and identify the petitioner as the drawer of the check. This is shown
by the transcript of the stenographic notes taken during the trial, viz:

ATTY. CO:

Considering that the accused is not present, Your Honor, I would like to manifest that the private
offended party be given the opportunity to identify the accused for purposes of this case.18

The trial court issued an Order on June 7, 1995, directing the petitioner, under pain of contempt, to
appear before it to enable Olvis to identify him:

After the declaration of the first and only witness for the prosecution, the private prosecutor prayed to
set the case for continuation of the trial, and ordering the defendant to appear to allow the prosecution
to establish his identity.

Set the case for continuation of the trial on June 13, 1995, ordering the accused to appear personally for
purposes of his identification in court under pain of contempt if he fails to comply unjustifiably with this
order. The defense shall be allowed to cross examine the witness for the prosecution if desired,
otherwise, his right of cross-examination shall be considered waived completely.

SO ORDERED.19

431
The petitioner defied the Order of the court and failed to appear as directed, and as gleaned from the
records -

(14) June 7, 1995 - The accused and counsel did not appear; hence, the prosecution was allowed to
present its evidence ex-parte. The private complainant was presented to testify in the direct-
examination, reserving the right of cross-examination on the part of the accused, and setting the case
for the purpose on June 13, 1995.

(15) June 13, 1995 - The accused did not appear, but the defense counsel requested for a resetting of
the cross-examination to be conducted. The request was granted over the objection of the prosecution,
and set the continuation of the trial to August 31, 1995.

(16) August 31, 1995 - As in previous occasions, the accused did not appear and defense counsel
requested for another resetting, and despite the vigorous opposition by the prosecution, the trial was
postponed to October 3, 1995, with the understanding that if the accused will not appear, it would be
taken to mean that he waived his right to cross-examination and to present evidence in his defense.

(17) October 3, 1995 - Atty. Narciso Barbaso appeared as a new counsel for the accused but requested
that he be allowed to read first the transcript of the direct testimony of the plaintiff's witness to be
cross-examined. The request was granted, and the trial was reset to November 21, 1995.

(18) November 21, 1995 - The accused and his counsel both did not appear. The prosecution formally
offered Exh. "A" in evidence, and upon its admission, the prosecution rested its case, and prayed that as
stated in the previous order of the court dated August 31, 1995, the case shall be considered submitted
for judgment, which request was granted.

(19) December 7, 1995 - The defense filed a motion for reconsideration of the order dated November 21,
1995. The court required the defense to file a supplemental motion stating the nature of its evidence to
be presented if allowed to enable the court to determine the merit of the motion for reconsideration,
but despite the lapsed (sic) of the period set by the court, the accused did not comply; hence, the denial
of the motion for reconsideration, and set the case for promulgation of the judgment on February 19,
1996.

(20) Then came the Omnibus Supplemental Motion, etc., by the accused dated February 8, 1996, and by
reason thereof, the promulgation of the judgment set on February 19, 1996, was held in abeyance.

(21) The defense counsel filed a motion to withdraw as counsel for the accused dated February 27, 1996,
and which was granted by the order of the court dated March 1, 1996.

[(22)] May 28, 1996 - A Special Manifestation dated May 21, 1996 in support of the Omnibus
Supplemental Motion filed thru another lawyer appearing as a new counsel for the accused, now under
consideration.20

Contrary to the petitioner's claim, the trial court did not award P6,000.00 as civil indemnity in favor of
Olvis; it ordered the petitioner to pay him P600,000.00, the amount of the subject check. Having failed
to pay the amount of the check, the petitioner is liable therefor and should be ordered to pay the same
to the private complainant in this case.21

On the second assigned error, the petitioner faulted the trial court for imposing a penalty of
imprisonment instead of a penalty of fine, and cites SC Circular No. 12-2000 to bolster his contention. He
suggests that since he is merely a first offender, he should be sentenced to pay a fine double the
amount of the check.

The Office of the Solicitor General, on the other hand, objects to the petitioner's plea on the ground that
when the latter drew and issued the dishonored check to the private complainant, he knew that the
residue of his funds in the drawee bank was insufficient to pay the amount thereof.

432
Considering the facts and circumstances attendant in this case, we find the petitioner's plea to be barren
of merit. Administrative Circular No. 13-2001 provides:

It is, therefore, understood that:

1. Administrative Circular 12-2000 does not remove imprisonment as an alternative penalty for
violations of BP 22;

2. The Judges concerned may, in the exercise of sound discretion, and taking into consideration the
peculiar circumstances of each case, determine whether the imposition of a fine alone would best serve
the interest of justice, or whether forbearing to impose imprisonment would depreciate the seriousness
of the offense, work violence on the social order, or otherwise be contrary to the imperatives of justice;

3. Should only a fine be imposed and the accused be unable to pay the fine, there is no legal obstacle to
the application of the Revised Penal Code on subsidiary imprisonment.22

The records show that despite the numerous opportunities given to him by the trial court, the petitioner
refused to adduce any evidence in his behalf. Moreover, the Court of Appeals found the petitioner's
appeal to be devoid of merit. Considering the factual milieu in this case, there is every reason for the
Court to reject the plea for a penalty of fine and maintain the penalty of imprisonment the trial court
imposed on the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is DENIED DUE COURSE. The assailed decision of the
Court of Appeals is AFFIRMED. Costs against the petitioner.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, TINGA, and Chico-Nazario, JJ., concur.

[G.R. NO. 158033. July 30, 2004]

RAMIL CABUGAO y SISON, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

PUNO, J.:

This is a Petition for Review of the decision1 and resolution2 of the Court of Appeals in CA-G.R. No. CR No.
24578, affirming the decision3 of the Regional Trial Court of Dagupan City, Branch 41, which found the
petitioner Ramil S. Cabugao guilty of violation of Article III, Section 15 of Republic Act No. 6425, as
amended.

The information against the petitioner Cabugao reads as follows:chanroblesvirtua1awlibrary

That on or about the 12th day of March, 1999, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, RAMIL CABUGAO y Sison, did then and
there, wil(l) fully, unlawfully and criminally, sell and deliver to a customer Shabu weighing more or
less .5 gram contained in a small plastic sachet, without authority to do so.

Contrary to Article III, Sec. 15, R.A. 6425, as amended.4 cralawred

The petitioner pleaded not guilty upon arraignment.5 cralawred

During the trial, the prosecution presented the testimonies of SPO2 Augusto P. Domingo,6 Police
Superintendent Theresa Ann B. Cid, and SPO1 Rolando Lomibao.

SPO2 Domingo testified that he has been a policeman in Dagupan City from January 25, 1999. On March
12, 1999, at around 8:40 p.m., the members of the Task Force Anti-Drug of the Dagupan City Police

433
Station conducted a buy-bust operation at M.H. Del Pilar Street in Dagupan City, against the petitioner
Cabugao after fifteen (15) days of surveillance. Fifteen (15) minutes before the buy-bust operation, he
arranged to sell shabu to the petitioner. During the operation, he approached the petitioner who was
seated on a bench in front of Caliman Lodge along M.H. Del Pilar Street. He gave the petitioner two P100
bills which he previously marked with his signature. He arrested the petitioner after the latter handed to
him a small plastic sachet of shabu. At the time of the arrest, the other members of the task force were
scattered at a distance of 3 to 5 meters away from him. The petitioner was then brought to the police
station where the incident was recorded in the police blotter.7 cralawred

SPO1 Rolando Lomibao, a member of the Dagupan City Police Stations Task Force Anti-Drug, also
testified for the prosecution. He said he has been in service as a policeman since 1987. He recalled that
in the evening of March 12, 1999, he, together with SPO2 Domingo, SPO1 Danilo Frias, SPO1 Allan Daus,
and their team leader Senior Police Inspector Romeo Caramat, went to M.H. Del Pilar Street to hold a
buy-bust operation. SPO2 Domingo acted as the poseur buyer in the operation as he was the one who
arranged with the petitioner the sale of shabu. They knew the location of petitioner Cabugao because of
their assets. When they arrived at M.H. Del Pilar Street, the petitioner was standing in front of Caliman
Lodge. SPO2 Domingo approached the petitioner and handed to him two marked P100 bills. At that time,
he was about three meters away from them. SPO2 Domingo arrested the petitioner after the latter gave
him the plastic sachet containing shabu. He helped in the apprehension of the petitioner. He bodily
searched the petitioner and found a 9-inch dagger in his possession. They turned over the petitioner to
the police station and requested for a laboratory examination of the contents of the plastic sachet.

Superintendent Wendy Garcia Rosario, the Chief of Police of the Dagupan City Police Station, sent a
letter-request8 to the Philippine National Police (PNP) Crime Laboratory of Lingayen, Pangasinan, for an
examination of the contents of the sachet handed over by the petitioner. He also reported to the
Dangerous Drugs Board the buy-bust operation.9 SPO2 Domingo and SPO1 Rolando Lomibao, as
members of the task force, executed a joint affidavit regarding the incident.10 cralawred

Theresa Ann Bugayong-Cid, a forensic chemist at the PNP Crime Laboratory of San Fernando, La Union,
testified that she examined the specimen and found it to contain methamphetamine hydrochloride
(shabu). 11 cralawred

For his part, the petitioner denied that a buy-bust operation was conducted against him by the police.
His testimony was buttressed by witnesses Teresa Azurin, Maria Luz Villamil, and Romeo Cabugao.

Teresa Azurin was a waitress of the turo-turo (eatery) at the sidewalk along M.H. Del Pilar Street where
the incident took place. She testified that on March 12, 1999 at around 8:30 in the evening, two men
came to their eatery, bought cigarettes and asked for candies. One of them said he would get his money
to pay for the candies. To her surprise, the man drew his gun and poked it to her lone customer, the
petitioner Cabugao. The two men then frisked the petitioner but found nothing from him. They
handcuffed the petitioner and forcibly took him away. She was shocked by the incident and went inside
the eskenita (alley). The following morning, the parents of the petitioner dropped by their eatery and
paid the food bill of their son. She gave them a receipt.12 cralawred

Maria Luz Villamil is the sister of the petitioners classmate Victorino Villamil. She testified that on March
12, 1999, at 8:30 in the evening, she was at a store along M.H. Del Pilar Street when she saw a man
approach the petitioner Cabugao while the latter was eating. She was about two(-) arm(s) length13 away
from the petitioner at that time. The man poked a gun at the petitioner and frisked him. Thereafter,
some men forced him to go with them. She heard the petitioner say: why, what is my fault; he also
asked if they have a search warrant. He begged to be allowed to telephone his parents but was refused.
He called on the people around him to inform his parents, telling them his address and telephone
number. She went to the address given by the petitioner and informed his parents of the
incident.14 cralawred

The petitioner Cabugao, 32 years old, testified that while he was eating at a sidewalk store at M.H. Del
Pilar Street on March 12, 1999 at around 8:30 in the evening, SPO1 Domingo suddenly poked a gun at
him and warned him Dont move or else I will shoot you. On the other hand, SPO1 Lomibao ordered him
to raise his hands. He was bodily frisked but nothing was found on him. He was handcuffed and pulled to

434
an owner-type jeep. He resisted as they did not have a warrant of arrest but to no avail. He begged to be
allowed to call his parents but was refused. He then shouted for help so the people present would know
what was happening. He was kicked while a certain SPO1 Allan Daus fired his gun. He was then brought
to the police station, specifically to Senior Inspector Romeo Caramat. He was forced to sign a blank
paper but he did not. After that, he was incarcerated in the city jail. He denied that a buy-bust operation
took place and that a sachet of shabu and a dagger were recovered from his possession. He said that
before the incident or on March 12, SPO2 Domingo and SPO1 Lomibao asked him to act as an asset in
apprehending two of his neighbors suspected to be drug pushers. He agreed, but before he could help
them, the suspects were arrested by other members of the Dagupan City Police Station. He asked for
their forgiveness but they warned him: the time will come that you (the petitioner) will have your day.

Romeo Cabugao, 63 years old, the father of the petitioner, testified that after Villamil informed them of
the March 12, 1999 incident, he, together with his wife, immediately went to M.H. Del Pilar Street. They
talked to some people in the area, including witness Azurin who related to them in detail the incident.
The next day, they paid the food bill of P30.00 incurred by the petitioner, for which an unofficial receipt
was issued by Azurin. He declared that before the incident, SPO2 Domingo and SPO1 Lomibao
frequented their house looking for his son, Ramil. The two wanted his son to act as an asset to
apprehend suspected drug pushers living at the back of their house. He advised his son to refuse as the
two police officers have questionable background. SPO1 Lomibao has been involved in drug pushing
while SPO2 Domingo has been found guilty of acts of lasciviousness and dismissed from the service.

He also testified that his son was also charged with violation of Batas Pambansa Blg. 6 or illegal
possession of deadly weapon. The charge was dismissed for the repeated failure of SPO2 Domingo and
SPO1 Lomibao to appear in court despite due notice. A certified true copy of the resolution15 of the
Summary Hearing Officer of the PNP Regional Office I imposing a one-rank demotion against SPO1
Lomibao, an authenticated copy of the decision16 of the Regional Director of the PNP Regional Office I
dismissing SPO2 Domingo from the PNP, and the order17 of the Municipal Trial Court in Cities of
Dagupan City, Branch 1, dismissing the case against the petitioner for illegal possession of deadly
weapon, were marked and submitted as exhibits for the defense. The information18 filed against the two
neighbors suspected of drug pushing, Evangeline Mendoza and Dave Doe, and the order19 of the
Regional Trial Court of Dagupan City, Branch 40, convicting Evangeline Mendoza upon her plea of guilty
for violation of Article III, Section 16 of R.A. No. 6425, as amended, were also offered as exhibits.

After trial, the trial court convicted petitioner Cabugao, to wit:chanroblesvirtua1awlibrary

WHEREFORE, the accused is found guilty beyond reasonable doubt for violation of Art. III, Section 15, RA
6425, as amended, and is hereby sentenced to suffer the penalty of six (6) months, as the minimum to
four (4) years, two (2) months and one (1) day, as the maximum, and to pay the costs.

SO ORDERED.20 cralawred

The petitioner appealed to the Court of Appeals which, however, affirmed his conviction on November
22, 2002. His motion for reconsideration was also denied.

Undaunted, the petitioner Cabugao filed this petition and submits the following assignment of errors:

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE INCONSISTENT AND INCREDIBLE STATEMENTS OF
THE PROSECUTION WITNESSES.

II

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE PROSECUTION WITNESSES ASSERTION THAT
THERE WAS A BUY-BUST OPERATION.

III

435
THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF SECTION 15,
ARTICLE III OF REPUBLIC ACT 6425, WHEN THE GUILT OF THE LATTER WAS NOT PROVEN BEYOND
REASONABLE DOUBT.

We find the petition impressed with merit.

The decisions of both courts below failed to take into account vital pieces of evidence that engender
serious doubt on the guilt of the petitioner.

First, we shall consider the documentary evidence of the defense which cannot but erode the credibility
of prosecution witnesses SPO2 Augusto Domingo and SPO1 Rolando Lomibao. We refer to: (a) the
authenticated copy of the Order of Police Chief Superintendent Velasco dated February 28, 1997
showing that SPO2 Domingo was found guilty of grave misconduct for acts of lasciviousness and ordered
dismissed from service; and (b) the certified true copy of the Resolution of Police Senior Inspector
Sotero Lucas Soriano, Jr. dated December 8, 1997 showing that SPO1 Rolando Lomibao was convicted of
grave misconduct when he was found positive of metabolite (marijuana) and demoted from the rank of
SPO1 to PO3.

The respondent, through the Office of the Solicitor General (OSG), tries to minimize the significance of
these pieces of documentary evidence. It contends that they are hearsay evidence because they are not
certified and were only identified by the petitioners father, Romeo Cabugao.21 It also argues that the
demotion of SPO1 Lomibao and the dismissal from service of SPO2 Domingo have no bearing on the
culpability of the petitioner.22 cralawred

We disagree.

The contention of the respondent that the subject documents are uncertified is erroneous. Under the
Rules of Court, when the original of a document is in the custody of a public officer or is recorded in a
public office, its contents may be proved by a certified copy issued by the public officer in custody
thereof.23 The Rules does not require that the certification should be in a particular form. The four-page
Resolution dated December 8, 1997 contains a stamped certification signed by Police Inspector David U.
Ursua of the Legal Service, PNP Regional Office I of Parian, San Fernando, La Union.24 The three-page
Decision dated February 28, 1997 has the handwritten authentication of Police Inspector Mario L. Aduan,
also from the same office, on each and every page.25 They ought to satisfy the requirement of the Rules
on certification.

Moreover, the respondent did not raise the hearsay objection when the subject documents were
offered in evidence by the defense. When the father of the petitioner was asked during direct
examination if he had proof that SPO2 Domingo was dismissed from service and that SPO1 Lomibao was
involved in drug activities, the prosecution objected on other grounds, i.e., that the line of questioning is
now irrelevant and immaterial and that (t) his is not (sic) the character of the complainant which is in
issue.26 When the subject documents were marked as exhibits, the prosecution again did not raise any
objection. When the documents were formally offered in evidence, the respondent once more did not
object on the ground of hearsay. The prosecution objected on the ground that the documents are off-
tangent to the issue in this case.27 cralawred

The Rules of Court requires that grounds for objection must be specified, whether orally or in
writing.28 The result of violating this rule has been spelled out by this Court in a number of cases.
In Krohn v. Court of Appeals,29 the counsel for the petitioner objected to the testimony of private
respondent on the ground that it was privileged but did not question the testimony as hearsay. We held
that in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to
make such objection and, consequently, the evidence offered may be admitted. In Tan Machan v. De la
Trinidad,30 the defendant assailed as error the admission of plaintiffs book of account. We rejected the
contention and ruled that an appellate court will not consider any other ground of objection not made
at the time the books were admitted in evidence. In the case at bar, the respondent did not assail in the
trial court the hearsay character of the documents in question. It is too late in the day to raise the
question on appeal.

436
At any rate, these documentary pieces of evidence cannot be cavalierly dismissed as irrelevant. They
have a material bearing on the credibility of the prosecution witnesses, SPO2 Domingo and SPO1
Lomibao. SPO2 Domingo has been dismissed from the service as of February 28, 1997. At the time of the
incident on March 12, 1999, he was no longer a policeman and yet misrepresented himself as one. On
the other hand, SPO1 Lomibao has been found guilty of drug use. Their credibility as truth tellers leaves
much to be desired.

Furthermore, the participation of SPO2 Domingo in the alleged buy-bust operation when he was no
longer a member of the police force speaks ill of the regularity of the operation. It is unusual for SPO2
Domingo to be given the role of poseur buyer when he was at the time a dismissed policeman. As a
dismissed policeman, he is not entitled to the presumption of regularity in the performance of official
duty. Yet this presumption was used as a crutch to convict the petitioner.

Second, there is a major inconsistency in the testimonies of SPO2 Domingo and SPO1 Lomibao. The
petitioner stressed that the two policemen could not agree on the reason that prompted them to
conduct the buy-bust operation. SPO1 Lomibao testified that they were tipped by their informants. In
contrast, SPO2 Domingo declared that they conducted a 15-day surveillance prior to the operation and
that he personally made a pre-arrangement with the petitioner to buy shabu 15 minutes prior to the
alleged operation. No informer was involved in the operation.

The pertinent excerpts of their testimonies follow:chanroblesvirtua1awlibrary

SPO2 Domingo:chanroblesvirtua1awlibrary

COURT:chanroblesvirtua1awlibrary

Q: Before you conducted the buy-bust, where did you made (sic) that pre-
arrangement?chanroblesvirtualawlibrary

A: I acted as poseur buyer, your Honor.

Q: But before that, where did you make that arrangement?chanroblesvirtualawlibrary

A: In that same place, your Honor.

Q: How many days before the buy-bust operation?chanroblesvirtualawlibrary

A: More or less 15 minutes, your Honor.31 cralawred

On the other hand, SPO1 Lomibao testified:chanroblesvirtua1awlibrary

Q: Arriving at M.H. del Pilar Street of (sic) March 12, 1999, what happened?chanroblesvirtualawlibrary

A: SPO3 Domingo who acted as pusher-buyer (sic) approached Ramil Cabugao, ma(a) m.

xxx

Q: You said that SPOe (sic) Augusto Domingo acted as pusher-buyer (sic), what did he actually
do?chanroblesvirtualawlibrary

A: He approached Ramil Cabugao and handed (to) him P200.00 bills, ma(a) m.

Q: What happened?chanroblesvirtualawlibrary

A: And have arrangement with Ramil Cabugao and asked Ramil Cabugao if he (Cabugao) could sell (to)
him P200.00 of shabu, ma(a) m.

437
Q: At the time SPO3 Augusto Domingo was transacted (sic) with accused Ramil Cabugao being a pusher-
buyer (sic), how far were you from the two?chanroblesvirtualawlibrary

A: I was more or less three meters away, ma(a) m.32 cralawred

During cross-examination, Lomibao testified:chanroblesvirtua1awlibrary

Q: You have no previous agreement with Ramil Cabugao that you will meet him in front of the Caliman
Lodge in (sic) that night?chanroblesvirtualawlibrary

A: None, sir.

Q: How did you know that Ramil Cabugao was there when you have no agreement with
him?chanroblesvirtualawlibrary

A: We have informants and assets that gave information with (sic) us, sir.33 cralawred

Just recently, in People v. Ong ,34 we held that it is the duty of the prosecution to present a complete
picture detailing the buy-bust operation - - - from the initial contact between the poseur buyer and the
pusher, the offer to purchase, the promise or payment of the consideration, until the consummation of
the sale by the delivery of the illegal subject of sale. Failing in this duty, the buy-bust operation will be
greeted with furrowed brows.

Second, the story of the prosecution that a dagger was found in the possession of the petitioner further
crushed the credibility of their witnesses. SPO1 Lomibao testified that he bodily searched the petitioner
and found a 9-inch dagger. In contrast, SPO2 Domingo never testified that a dagger was found from the
petitioner. Several witnesses for the defense categorically declared that no dagger was found during the
body frisk of the petitioner.

The records show that the charge for violation of Batas Pambansa Blg. 6 or illegal possession of
dangerous weapon against the petitioner was dismissed due to the repeated failure of SPO2 Domingo
and SPO1 Lomibao to appear before the court despite due notice. This repeated failure strengthens the
impression that the prosecution story about the dagger taken from the petitioner is false. The falsity is
not of little significance. A witness who manufactures that kind of a lie that could lead to the long time
incarceration of the victim does not merit credence.

Third, the documentary and testimonial evidence showing ill motive on the part of the police officers
who witnessed against the petitioner cannot be shunted aside.

The petitioner claims that SPO2 Domingo and SPO1 Lomibao had reason to frame him up for he
repeatedly refused to become their police asset for the arrest of certain neighbors believed to be drug
pushers. He alleged that because of his refusal, other police officers were able to arrest the suspects
ahead of SPO2 Domingo and SPO1 Lomibao. As result, other police officers were promoted instead of
SPO2 Domingo and SPO1 Lomibao.35 His testimony was corroborated by his father, Romeo Cabugao.

The prosecution did not rebut these allegations establishing the ill motive of SPO2 Domingo and SPO1
Lomibao. Their testimonies cannot therefore be taken hook, line and sinker.

Finally, we note that the testimonies of defense witnesses Azurin and Villamil were not given any
significance in the decisions of the courts below. In fact, they were not even discussed. Of importance is
the testimony of Azurin who witnessed the entire incident from the time the police officer approached
the petitioner up to the time he was handcuffed and carried away. Her testimony has all the earmarks of
truth. The incident took place in a small, sidewalk eatery where there was only one table. The petitioner
was then the lone customer and Azurin attended to his order. She testified that the petitioner was
merely eating and was not doing anything wrong when arrested by the policemen, viz:

Q: After the two men came and something happened(,) that is the time you
left?chanroblesvirtualawlibrary

438
A: Not yet, ma(a) m.

Q: Did you not say during direct examination that when something happened you were shocked and you
left and you went to eskenita?chanroblesvirtualawlibrary

A: After he was poked with a gun and (they) handcuffed him(.) (T) hat was the time I left, ma(a) m.

xxx

Q: Now, according to you(,) you did not see anything that they got from Ramil
Cabugao?chanroblesvirtualawlibrary

A: Yes, ma(a) m.

Q: You believed that Ramil Cabugao did not do anything wrong, is that it?chanroblesvirtualawlibrary

A: I did not say that, ma(a) m.

Q: You said that you have witnessed since the time Ramil Cabugao arrived in (sic) your store you did not
see him do anything wrong in your store?chanroblesvirtualawlibrary

A: Yes, ma(a) m.

xxx

Q: How far were you when these policemen frisked Ramil Cabugao?chanroblesvirtualawlibrary

A: I was about one and a half meter away, ma(a) m.

Q: Which took place first(,) the frisking of the body of Ramil Cabugao or the poking of the
gun?chanroblesvirtualawlibrary

A: The poking of gun, ma(a) m.

Q: And they handcuffed him?chanroblesvirtualawlibrary

A: They frisked him, ma(a) m.

Q: The poking of the gun was first made by the policemen?chanroblesvirtualawlibrary

A: Yes, ma(a) m.

Q: And then they handcuffed him?chanroblesvirtualawlibrary

A: The handcuff was the last, ma(a) m.36 cralawred

We find Azurin to be an unbiased witness. She has no relation to the petitioner. She was a waitress in
the eatery where the incident took place. She testified at the risk of inviting the ire of police officers
whose influence could very well affect their livelihood and well-being.

It is well-settled that conviction must rest upon the strength of the evidence of the prosecution and not
on the weakness of the evidence for the defense.37 The prosecutions evidence, resting mainly on the
testimonies of two police officers whose authority and credibility are highly doubtful, cannot sustain the
conviction of the petitioner.

IN VIEW WHEREOF, the petition is GRANTED. The assailed decision and resolution of the Court of
Appeals affirming the decision of the Regional Trial Court of Dagupan City, Branch 41, are REVERSED and

439
SET ASIDE. Petitioner is ACQUITTED of the crime of violation of Article III, Section 15 of Republic Act No.
6425, otherwise known as the Dangerous Drugs Act of 1972, as amended. Cost de oficio.

SO ORDERED.

Austria-Martinez, Callejo, Sr., TINGA, and Chico-Nazario, JJ., concur.

[G.R. No. 91797. August 7, 1992.]

WIDOWS & ORPHANS ASSOCIATION, INC., Petitioner, v. COURT OF APPEALS and ORTIGAS &
COMPANY LIMITED PARTNERSHIP, Respondents.

Quijano & Padilla for Petitioner.

Jose S. Songco for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; SECONDARY EVIDENCE; ADMISSIBILITY IN EVIDENCE OF CERTIFIED TRUE

COPY OF ORIGINAL CERTIFICATE OF TITLE. — After careful re-examination of the evidence of record and
applicable rules of evidence, the Court considers that the word "secondary evidence" was inaccurate.
The copy of OCT No. 351 offered by Ortigas was a certified true copy of the original thereof found in the
Registration Book of the Register of Deeds of Rizal. The admissibility of such a copy in court proceedings
is an exception to the ordinary rule on secondary evidence; such admissibility is in fact mandated by
Section 47 of Act No. 496 (The Land Registration Act). Under the Land Registration Act which was in
force at the time OCT No. 351 was issued, the original thereof found in the Registration Book of the
Register of Deeds of Rizal was an official transcript of Decree No. 1425, with respect to the land covered
by such decree situated in the Province of Rizal. Thus, OCT No. 351 constitutes direct proof of the
existence of Decree No. 1425 upon which the Ortigas TCTs (Nos. 77652 and 77653) are based.

2. ID.; ID.; JUDICIAL NOTICE; SUPREME COURT BOUND TO TAKE JUDICIAL NOTICE OF CASE LAW AND ITS
RECORDS; CASE AT BAR. — The Resolutions of the Supreme Court in the Navarro and Del Rosario cases,
disposed of those cases on their merits by affirming the pertinent decisions of the Court of Appeals.
Those Resolutions are part of the case law and the records of this Court itself of which we are bound to
take judicial notice. We are certainly not at liberty to disregard them in any case. So to disregard our
own decisions would be to inflict substantial injustice and irreparable injury upon Ortigas which would
be compelled to do all over again what it had done at least twice before — to prove it has indefeasible
title to the land covered by TCT Nos. 77652 and 77653. The resulting injustice and injury would not be
limited to Ortigas, but would engulf many thousands of present registered private owners of Transfer
Certificates of Title covering the thousands of hectares of land embraced by Decree No. 1425. The grave
social implications of permitting a cloud to arise on all those Transfer Certificates of Title by our failure
to take into account our own decisions in earlier cases, can scarcely be contemplated.

3. ID.; APPEAL; DOCTRINE IN DIOQUINO VS. IAC, 179 SCRA 163, THAT FACTUAL FINDINGS BASED ON
EVIDENCE PRESENTED EX PARTE AS APPENDICES TO MOTION FOR RECONSIDERATION REJECTED BY
SUPREME COURT NOT APPLICABLE TO CASE AT BAR. — In holding that the Court of Appeals should not
have resolved the factual issues considering the nature of certiorari jurisdiction, the Court relied on
Dioquino v. Intermediate Appellate Court. In Dioquino, this Court rejected the factual findings made by
the Court of Appeals in the course of resolving a petition for review filed under Section 22, B.P. Blg. 129,
because, inter alia, those factual findings were based on evidence Presented ex-parte as appendices to a
motion for reconsideration from the decision of the trial court. Considering that no evidence had been
presented by either party in the principal proceedings, either before the Municipal Circuit Trial Court or
before the Regional Trial Court, the Court in Dioquino concluded that the Court of Appeals’ power to
resolve issues of fact under Section 9, paragraph 2, B.P. Blg. 129, was misapplied because the opposing
party had no real opportunity to reject the evidence submitted ex parte by its opponent. Careful
examination of the Dioquino case shows that the facts there are so different from those of the present

440
case as to render our holding in Dioquino inapplicable here. Here, the Court of Appeals had conducted
hearings on four (4) occasions, during which it required both parties to present evidence to establish
their respective contentions on Ortigas’ right to a writ of preliminary injunction. At these hearings, both
parties reproduced before the Court of Appeals the same evidence they had adduced before the trial
Court during the 9-year long hearings on Ortigas’ motion to dismiss, which evidence tended to support
their respective contentions on the derivation of Ortigas’s TCTs. Thus, the acceptance of ex parte
evidence which the Court rejected in Dioquino, never occurred in the instant case. Moreover, the
determination of whether an inferior court had arbitrarily disregarded preponderant evidence of record
adduced in protracted hearings before it, is a proper subject of inquiry by an appellate court in
a certiorari proceeding.

4. ID.; EFFECT OF JUDGMENTS; MINUTE RESOLUTION OF SUPREME COURT; EFFECT; CONCLUSIVENESS

OF JUDGMENT; SUBSTANTIAL IDENTITY OF PARTIES; EXPLAINED; CASE AT BAR. — The decision of Judge
Apostol was affirmed in its entirety by Gaviola, J. of the Court of Appeals. As noted earlier, Felipe
Navarro’s petition for review of the Gaviola decision was denied by the Supreme Court for lack of merit.
The Court’s minute resolution is a judgment on the merits for the purpose of applying the principles of
bar by prior judgment and conclusiveness of judgment. . . . Under the doctrine of conclusiveness of
judgment, these factual matters established in G.R. No. 50156 are binding on Widora and can no longer
be relitigated by it in G.R. No. 91797. Both cases, to a certain extent, involve the same subject matter
(i.e., the parcels of land described in Ortigas’ TCT Nos. 77652 and 77653. Ortigas’ cause of action in G.R.
No. 50156 consisted of the fraudulent sales of its property made by Felipe Navarro in behalf of his
"owner" clients. That differs somewhat from Ortigas’ cause of action in G.R. No. 91797, which consists of
the adverse claim of ownership asserted by Widora over Ortigas’ property, manifested through the
filling of Widora’s application for land registration. But more importantly, there is a substantial identity
between Felipe Navarro (and his clients) on one hand and Widora on the other; both parties sought to
question the validity of Decree No. 1425 and its particular derivatives here involved (TCT Nos. 77652 and
77653), insofar as the Decree had adjudicated in favor of Ortigas ownership of land being claimed by
Navarro and Widora. This circumstance makes them privies in law for purposes of the operation of the
rule on conclusiveness of judgment. Furthermore, it must be observed that Widora is bound by the
ruling laid down in the Cia. Agricola case of 1906 that Ortigas (through its predecessor-in-interest) is the
registered owner of land comprising the Hacienda de Mandaloyon because the factual matters resolved
in the Navarro case show that the land covered by Widora’s application forms part of that vast tract of
land adjudicated to Ortigas’ predecessor-in-interest in the 1906 decision. . . . Once more, it is apparent
that the factual matters which Widora seeks to litigate in G.R. No. 91797 have already been resolved in
the Del Rosario case. Since the subject matter of the controversy in Del Rosario and in G.R. No. 91797
are identical (parcels of land covered by TCT Nos. 77652 and 77653), the cause of action of Widora in
G.R. No. 91797 is identical to that of the petitioners in Del Rosario, i.e., the petitioners in Del Rosario
contested Ortigas’ claim of ownership over the land from which they were being ejected, which is of
course the same claim of ownership embodied in Ortigas’ opposition to Widora’s land registration
application over the same land in the instant case. It follows that Widora in G.R. No. 91797 must also be
deemed privy in law of the petitioners in Del Rosario (for they too assailed the validity of Decree No.
1425 and its particular derivatives, TCT Nos. 77652 and 77653). Accordingly, the factual and legal
matters resolved with finality in the Del Rosario case, which are determinative of the merits of Widora’s
application for land registration in G.R. No. 91797 must be considered, as in the Navarro case, as a bar to
the grant of the Widora application under the rule on conclusiveness of judgment.

5. ID.; ID.; BAR BY PRIOR JUDGMENT; NOT EVADED BY VARYING FORM OF ACTION OR ADOPTING
DIFFERENT MODE OF PRESENTING CASE. — In the case at bar, Widora is relying upon the same
supposed Spanish title — Titulo de Propiedad No. 4136. We believe and so hold that the Resolution of
this Court in G.R. No. 69343, holding that alleged Spanish title had become bereft of any probative value
is res adjudicata in respect of the present case. Put a little differently, the principle of bar by prior
judgment precludes any reliance by Widora in the case at bar on that fantastic Spanish title considering
the essential identities of parties and identity of subject matter and of cause of action between Civil
Case No. Q-22410 and LRC Case No. Q-336. We should add that Widora’s prayer for alternative relief in
the form of confirmation of imperfect title over the land covered by its application for registration, is
immaterial. That alternative relief is also premised upon Widora’s claim that Ortigas had fraudulently
registered the land in its (Ortigas) own name such that the land remained presumptively public land. The
firmly entrenched rule is that a party can not evade the application of the principle of bar by prior

441
judgment by simply varying the form of the action or by adopting a different mode of presenting its case.

6. ID.; ID.; RES JUDICATA; WAIVER THEREOF NOT CASUALLY ASSUMED; IN CASE AT BAR, DEFENSES OF
RES ADJUDICATA RELATING TO JURISDICTION MAY BE RAISED AT ANY STAGE OF PROCEEDINGS OR
DETERMINED BY COURT MOTU PROPRIO. — We believe and so hold that there was no such waiver of
res adjudicata by Ortigas in the case at bar. It is most important to note, in the first place, that the
defense of res adjudicata pleaded by Ortigas in this case relates ultimately to the jurisdiction of the land
registration court to try LRC No. Q-336. The Court of Appeals correctly stressed that Ortigas having
shown that the land applied for by Widora is already registered in Ortigas’ name, the land registration
court simply had no jurisdiction to decree the registration of that same land in the name of some other
person. The well-established rule is that lack of jurisdiction which renders an action dismissible may be
determined by the court seized with it motu proprio, and may be raised by a party, at any stage of the
proceedings even on appeal. . . . Waiver of res adjudicata, certainly in cases like the one before us,
cannot casually be assumed to have been made. What is involved here is not an academic doctrine of
law but very valuable property rights, so valuable that at least thrice before, various persons or groups
of persons (including Widora, for the second time) have attempted to usurp title thereto by assailing the
same two (2) TCTs. Ortigas tenaciously fought off those efforts at least three (3) times before, from the
trial court thru the Court of Appeals to our own Court, each litigation stretching out to many years. In
this situation, only the most explicit and deliberate statement, in unmistakable language, will suffice to
constitute waiver; that is certainly not present here. What is claimed here is merely implied or presumed
waiver, which has been expressly denied by Ortigas. Yet as Lantin, J. of the respondent Court of Appeals
observed, as far back as 27 June 1979, in its motion for reconsideration of the trial court’s order of 20
April 1979 denying its motion to dismiss, Ortigas had already brought to the attention of the trial court
the fact that its assailed titles had been upheld by Courts of First Instance and appellate courts in prior
cases. Moreover, during the proceedings on Ortigas’ motion to dismiss, the Government itself , through
the Land Registration Commission, had advised the trial court that the 156 hectare parcel Widora was
seeking to register were "covered by valid and subsisting titles in the name of Ortigas."cralaw virtua1aw
library

7. CIVIL LAW; LAND REGISTRATION; INDEFEASIBILITY AND INCONTROVERTIBILITY OF TORRENS TITLE. —

Finally, as held in the Court of Appeals decision which we affirmed in G.R. No. 50156, the Torrens titles
of Ortigas served as evidence of its indefeasible title over the property covered thereby and they
became incontrovertible one year after entry of the final decree of registration from which they were
derived in 1906. The Supreme Court’s affirmance of this ruling in fact constitutes a holding that the land
covered by these titles (particularly TCT Nos. 77652 and 77653) have been duly brought under the
Torrens System of land registration and that this circumstance prevented the land registration court
hearing Widora’s application in LRC No. Q-336 from acquiring jurisdiction over the land covered by that
application.

BIDIN, J., dissenting:chanrob1es virtual 1aw library

1. REMEDIAL LAW; EVIDENCE; JUDICIAL NOTICE; NOT PROPER IN CASE AT BAR. — In disposing of the
controversy before us, the Court resolved, the issue on the basis of facts which are not extant in the
records of the case (GR No. 97197). This is quite unprecendented. Invoking the concept of judicial notice,
the Court considered certain facts which led it to rule in favor of respondent Ortigas. I submit that these
"facts", substantial as they are, should not have been considered by the Court for the simple reason that
they were not even alleged by respondent itself nor do they appear on the records before us. In so
doing, it is my submission that the Court over-stretched the concept of judicial notice. The immutable
rule on burden of proof is that each party must prove his own affirmative allegations (Sec. 1, Rule 131)
by the amount of evidence required by law which is preponderance of evidence in civil cases. That is
why the decision sought to be reconsidered, remanded the case to the trial court for further
proceedings. At the risk of being repetitious, I would like to emphasize that the facts narrated in the
Resolution were gathered substantially from sources outside of the records of the case. . . . But what is
more disturbing is the fact that the ponencia based its decision on evidenciary facts not borne out by the
records. The ponencia made a number of references to the records had in the Court of Appeals which,
unfortunately, does not appear on the records presented before this Court of resolution. This, I believe,
amounted to over-extending the concept of judicial notice. I submit that it is not the duty of this Court
to supply what the party litigants have failed to present. Otherwise, this Court might as a well sit as trier

442
of facts.

2. ID.; ID.; SECONDARY EVIDENCE; ADMISSIBILITY IN EVIDENCE OF CERTIFIED TRUE COPY OF ORIGINAL
CERTIFICATE OF TITLE; IN CASE AT BAR, CERTIFIED TRUE COPY OF OCT 351 NOT ADMISSIBLE FOR STATED
PURPOSE; REASON THEREFOR. — Respondent next argues that the Court of Appeals committed no error
in admitting as evidence OCT 351 on the ground that Sec. 47 of Act 496 itself declares it to be admissible
in all courts. Said Section provides: "Sec. 47. The original certificate in the registration book, any copy
thereof duly certified under the signature of the clerk, or of the register of deeds of the province or the
city where the land is situated and the seal of the court, and also the owner’s duplicate certificate shall
be received as evidence in all courts of the Philippine Islands and shall be conclusive as to all matters
contained therein except so far as otherwise provided in this Act." Following the line of respondent’s
argument, OCT 351 should not have been admitted and/or considered as proof that TCT Nos. 77652 and
77653 were derived from it (OCT 351). This is because the said TCTs themselves show that they were
derived not from OCT 351 but from other OCTs stated above. To admit OCT 351 as the supposed origin
of TCT Nos. 77652 and 77653 at this stage of the proceeding would in effect be disregarding the official
entries made therein which indicate that said TCTs were derivatives of OCT Nos. 19, 334, 336 & 337.
These entries are conclusive, so the law says. Consequently, Ortigas, contention that TCT Nos. 77652
and 77653 are derivatives of OCT 351 has no leg to stand on.

3. ID.; APPEAL; QUESTIONS OF FACT BEYOND PROVINCE OF SUPREME COURT; CASE AT BAR. — The issue
in this case is whether the 156-hectare parcel of land applied for, located at Ugong Norte, Quezon City,
is covered by Ortigas TCT Nos. 77652 and 77653, or is alienable and disposable land as contended by
petitioner and certified by the Bureau of Lands and the Bureau of Forestry. These are questions of facts
and questions of facts are beyond the province of this Court (PLDT v. National Telecommunications
Commission, 190 SCRA 717 [1990]).

4. ID.; EFFECT OF JUDGMENTS; RES JUDICATA; WHEN VALID AS A DEFENSE; WHEN DEEMED WAIVED;
CASE AT BAR. — It is my considered opinion that the defense of res judicata must be seasonably pleaded
in order to be valid, (Fernandez v. de Castro, 48 Phil 123 [1925]; see also Del Val v. Del Val, 29 Phil 534
[1915]) and if not set up as a defense or ground of objection seasonably, the doctrine of res judicata is
deemed waived (Alvarez v. Court of Appeals, 158 SCRA 401 [1988]; Vergara v. Rugue, 78 SCRA 312
[1977]; Phil. Coal Miners Assn. v. Cebu Portland Cement, 10 SCRA 784 [1964]). Where res judicata was
raised as a defense only in the motion for reconsideration, the same was deemed waived (Pulido v.
Pablo, 117 SCRA 16 [1982]). Here, respondent raised the defense of res judicata only in its
memorandum submitted after filing its motion for reconsideration of the decision dated August 28,
1991, which motion, as stated earlier, did not even contain any reference to the cases now belatedly set
up as a defense by respondent in its memorandum in support of its motion for reconsideration.
Respondent’s invocation of res judicata having been made too late in the day, the same must be
considered as having been waived (Sec. 8, Rule 15 and Sec. 5, Rule 16). In any event, a perusal of the
cases belatedly relied upon by respondent as defense (res judicata) would readily disclose that OCT 351,
the alleged origin of TCT Nos. 77652 and 77653, was not the subject matter of said cases much less
passed upon in the disposition of said cases. The issue of the applicability of OCT 351 to the case at bar
is even more compounded by the fact that TCT Nos. 776752 and 77653 do not, on their faces, reflect
that their origin is OCT 351 as claimed by Respondent. On the contrary, said TCTs trace their origin to
OCT Nos. 19, 334, 336 and 337 and hence, not to OCT 351. Otherwise stated, Ortigas, evidence (TCTs
77652 and 77653) do not support its contention that the said TCTs were derivatives of OCT 351.

5. CIVIL LAW; LAND REGISTRATION; CORRECTION OF ENTRIES IN TRANSFER CERTIFICATES OF TITLE;

ENTRIES IN CERTIFICATES OF TITLE BINDING AND CONCLUSIVE UPON COURTS; CASE AT BAR. — The
procedure adopted by the respondent Court of Appeals in arriving at its conclusion that TCT Nos. 77652
and 77653 were derived from OCT 351 contrary to what is stated in the faces of said TCTs, finds no
support in law as it amounted to a correction and/or alteration of the TCTs in violation of the existing
applicable law. Under the Sec. 112 of Act 496 (now Sec. 108 of PD 1529), no certificate of title may be
amended or altered except by order of the proper regional trial court. The petition for the purpose must
be filed before the regional trial court, sitting as a land registration court, and entitled in the original
case in which the decree of registration was entered. Certainly, the Court of Appeals, in a certiorari and
injunction proceeding, cannot arrogate unto itself that power lodged exlusively with the land
registration court without running afoul with the said provision of law. As stated earlier, the correction

443
of the entries in the transfer certificates of title should be effected before the Regional Trial Court sitting
as a land registration court which has original jurisdiction over the same pursuant to Sec. 112 of Act 496
(now Sec. 108, PD 1529). For as long as these entries appear in the transfer certificates of title, they are
binding and conclusive upon the court (Sec. 47, Act. 496). Otherwise stated, these entries, until
ascertained to be erroneous in an appropriate proceeding before the land registration court, are binding
and conclusive in all courts including the respondent Court of Appeals and this Court. Inasmuch as
Ortigas insists that the subject parcel of land is covered by OCT 351 under Decree 1425, while its own
Transfer Certificate of Title Nos. 77652 and 77653 state that they are derivatives of OCT Nos. 19, 334,
336 and 337, it follows that Transfer Certificates of Title Nos. 77652 and 77653 do not embrace the
subject parcel of land, not being derivatives of OCT 351. The entries in the TCTs of Ortigas cannot be
dismissed as mere errors since the said entries are conclusive. Hence, the necessity of remanding the
case to the court a quo for resolution of the factual issues in the exercise of its original jurisdiction.
Neither this Court not the respondent Court of Appeals can initially make the correction, if there be any.

RESOLUTION

FELICIANO, J.:

On 27 August 1974, petitioner Widows’ and Orphans Association, Inc. ("Widora") instituted Land
Registration Case ("LRC") No. Q-336 before Branch 4 of the Court of First Instance of Quezon City (now
Branch 83 of the Regional Trial Court, same City). Widora applied for original registration of title over a
parcel of land described in Plan LRC(SWO)-15352, alleging that said property is covered by Titulo
Propiedad No. 4136 dated 25 April 1894, supposedly issued in the name of one, deceased, Mariano San
Pedro y Esteban. 1 In an amended application, Widora stated that the land applied for was situated at
Malitlit-Ugong, Quezon City, with an area of 156 hectares. 2

On 13 October 1978, private respondent Ortigas & Co. Limited Partnership, Inc. ("Ortigas") filed an
opposition to the application. 3 This pleading was followed by a motion to dismiss dated 23 October
1978. 4

In a supplementary report dated 14 November 1978, the Commissioner of Land Registration informed
the trial court that the land sought to be registered was "identically the same" as that covered by Lot 7
of Transfer Certificate of Title ("TCT") No. 77652 and of Lot 8 of TCT No. 77653, both of which were
issued and standing in the name of Ortigas. 5

In an order dated 20 April 1979, the trial court set the case for hearing to enable Widora to prove its
assertion that TCT Nos. 77652 and 77653 were not derived from the Original Certificates of Title ("OCT")
referred to on their faces (i.e., OCT Nos. 19, 336, 337 and 344) and to give Ortigas an opportunity to
show the contrary. 6

For nine (9) years, from 1979 until 1988, hearings were held where the parties adduced evidence in
support of their respective contentions. 7

In an order dated 30 March 1988, the trial court denied Ortigas’ motion to dismiss, holding that its TCT’s
were apparently not derived from the OCT’s mentioned on their faces and did not appear to have been
based on an existing original decree of registration. 8

Ortigas’ motion for reconsideration having been denied, and the trial court having set the case for
hearing on the merits, Ortigas filed a petition for certiorari with prayer for a writ of preliminary
injunction with the public respondent Court of Appeals on 10 July 1989. 9

In a decision dated 27 November 1989, the Court of Appeals gave due course to the petition and
nullified the trial court’s order of 30 March 1988. It held that TCT Nos. 77652 and 77653 were derived
from OCT No. 351, which in turn was based on Decree of Registration No. 1425 issued in favor of Ortigas’
predecessor-in-interest in 1905, in G.L.R.O. Record No. 917 which had been tried by the Land

444
Registration Court of Manila. The Court of Appeals dismissed LRC No. Q-336 because the land subject
thereof was already registered in favor of Ortigas, with the result that the trial court had no jurisdiction
over the subject matter of the action. 10

Its motion for reconsideration having been denied, Widora filed the present petition for review with the
Court on 22 March 1990. In a decision dated 28 August 1991, the Court’s Third Division set aside the
decision of the Court of Appeals and reinstated the order of the trial court dated 30 March 1988.

The Court’s Third Division held that the Court of Appeals erred in making factual findings determinative
of Widora’s application on the basis of "secondary evidence" offered by Ortigas, in unilaterally
correcting entries in the Ortigas Torrens titles and held that the controversy regarding the authenticity
of said titles should be resolved in "full-blown" hearings before the trial court. 11

Hence, the present Motion for Reconsideration filed by Ortigas.chanrobles lawlibrary : rednad

Examination of the Court’s Decision of 28 August 1991 shows that two (2) considerations led the Court
to remand this case to the trial court to hear Widora’s application for land registration on the merits.

Firstly, the Court was apparently not entirely certain that the land covered by Widora’s application was
already registered under the Torrens system in Ortigas’ name, such that it appeared prudent to conduct
a "full-blown" trial on the merits to clear up that matter, considering: (1) Ortigas argued that its
ownership of the land which is the subject of Widora’s application was confirmed by Decree No. 1425
issued in G.L.R.O. Record No. 917 of the Land Registration Court of Manila in 1905; however, Widora’s
evidence tended to show that Decree No. 1425 adjudicated to Ortigas only seventeen (17) hectares of
land situated in Sta. Ana, Manila, while Widora’s application related to one hundred fifty-six (156)
hectares of land situated in Quezon City; and (2) it appeared that Ortigas’ TCT Nos. 77652 and 77653
carry some erroneous statements on their face, relating to "their source or mother Original Certificate of
Title (OCT)" lending some credence to Widora’s contention that the genuineness of those TCTs was
dubious.

The second consideration was the feeling that the Court of Appeals should not have resolved these
factual uncertainties by using "secondary" evidence offered by Ortigas, considering the limited nature
of certiorari jurisdiction, since Torrens titles are conclusive on their face and any inaccuracies of entries
thereon are to be corrected only by the proper land registration court.

In the Motion for Reconsideration and in the oral hearing on that Motion, Ortigas invited our attention
to the existence of previously decided cases showing that the factual uncertainties we had noted had
already been adjudicated by the Court with finality and are now matters of judicial notice. 12

In this Resolution, the Court will address this principal argument of Ortigas as well as the argument
concerning the character of evidence submitted by Ortigas before the trial court.

I.

In holding that the Court of Appeals should not have resolved the factual issues considering the nature
of certiorari jurisdiction, the Court relied on Dioquino v. Intermediate Appellate Court. 13 In Dioquino,
this Court rejected the factual findings made by the Court of Appeals in the course of resolving a petition
for review filed under Section 22, B.P. Blg. 129, because, inter alia, those factual findings were based on
evidence Presented ex-parte as appendices to a motion for reconsideration from the decision of the trial
court. Considering that no evidence had been presented by either party in the principal proceedings,
either before the Municipal Circuit Trial Court or before the Regional Trial Court, the Court in Dioquino
concluded that the Court of Appeals’ power to resolve issues of fact under Section 9, paragraph 2, B.P.
Blg. 129, was misapplied because the opposing party had no real opportunity to reject the evidence
submitted ex parte by its opponent. 14

Careful examination of the Dioquino case shows that the facts there are so different from those of the
present case as to render our holding in Dioquino inapplicable here. Here, the Court of Appeals had
conducted hearings on four (4) occasions, during which it required both parties to present evidence to

445
establish their respective contentions on Ortigas’ right to a writ of preliminary injunction. At these
hearings, both parties reproduced before the Court of Appeals the same evidence they had adduced
before the trial Court during the 9-year long hearings on Ortigas’ motion to dismiss, which evidence
tended to support their respective contentions on the derivation of Ortigas’s TCTs. 15 Thus, the
acceptance of ex parte evidence which the Court rejected in Dioquino, never occurred in the instant
case. Moreover, the determination of whether an inferior court had arbitrarily disregarded
preponderant evidence of record adduced in protracted hearings before it, is a proper subject of inquiry
by an appellate court in a certiorari proceeding.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

II.

In arriving at its conclusion that TCT Nos. 77652 and 77653 are proper derivatives of OCT No. 351, which
in turn had been issued pursuant to Decree No. 1425, the Court of Appeals had relied on (a) a certified
true copy of OCT No. 351; (b) survey plans prepared by Ortigas’ Geodetic Engineer, Mr. Carlos Angeles,
which were based on plottings of the boundaries of parcels of land appearing in the Notice of Initial
Hearing in G.L.R.O. Record No. 917 and in the technical description found in the body of OCT No. 351,
and, in TCT Nos. 77652 and 77653; and (c) the testimony of Engineer Angeles that these plottings
showed that the land covered by the TCTs was inside the larger parcel of land covered by the OCT, which
in turn was inside the much larger parcel of land (The Hacienda de Mandaloyon) adjudicated to Ortigas’
predecessor-in-interest by Decree No. 1425 issued in G.L.R.O. Record No. 917. 16 As noted earlier, the
above evidence had been presented by Ortigas before the trial court during the prolonged hearings on
its motion to dismiss. The Court described the above evidence as "secondary" in nature and noted that
Ortigas did not establish the due execution and subsequent loss of the original documents, as required
by the Rule on Secondary Evidence. 17 After careful re-examination of the evidence of record and
applicable rules of evidence, the Court considers that the word "secondary evidence" was inaccurate.
The copy of OCT No. 351 offered by Ortigas was a certified true copy of the original thereof found in the
Registration Book of the Register of Deeds of Rizal. 18 The admissibility of such a copy in court
proceedings is an exception to the ordinary rule on secondary evidence; 19 such admissibility is in fact
mandated by Section 47 of Act No. 496 (The Land Registration Act). 20 Under the Land Registration Act
which was in force at the time OCT No. 351 was issued, the original thereof found in the Registration
Book of the Register of Deeds of Rizal was an official transcript of Decree No. 1425, with respect to the
land covered by such decree situated in the Province of Rizal. 21

Thus, OCT No. 351 constitutes direct proof of the existence of Decree No. 1425 upon which the Ortigas
TCTs (Nos. 77652 and 77653) are based. We believe further that the Court of Appeals was justified in
relying upon the plotting prepared by Engineer Carlos Angeles and his testimony explaining the
significance thereof, notwithstanding the secondary nature of that plotting and testimony. For, as will be
seen shortly, the authenticity and correctness of these survey plans and of Engineer Angeles’s
explanation thereof had already been judicially sustained in previously decided cases.

III.

In its Motion for Reconsideration and its supporting memorandum, Ortigas argued that the seeming
factual uncertainties relating to its TCTs which had impelled the Court to order a remand of this case to
the trial court, had already been resolved with finality in previously decided case and are now matters of
judicial notice.

We have reviewed the underlying record carefully and must conclude that this claim of Ortigas is
impressed with considerable merit. When evidence of record in the instant case is considered together
with the findings and conclusions embodied in previously decided cases, the factual uncertainties
initially feared by the Court are dissipated. In truth, resolution of these uncertainties results from the
application of the principle of res adjudicata and of its two (2) component concepts, i.e., conclusiveness
of judgment and bar by prior judgment.

As early as 1906, in Cia. Agricola de Ultramar v. Domingo, Et Al., 22 this Court affirmed on appeal the
trial court’s confirmation of the title of La Compania Agricola de Ultramar as registered owner under the

446
Torrens System of the Hacienda de Mandaloyon. Such confirmation. referring to title over a specific
thing, has now acquired immutability and incontestability. 23 Thus, in Ortigas v. Hon. Ruiz, 24 the Court
ruled that the Ortigas & Co. Ltd. Partnership was the successor-in-interest of La Compania Agricola de
Ultramar and can invoke the benefits of the Court’s 1906 ruling, under the doctrine of the law of the
case, to defeat an action for annulment of some of its transfer certificates of title on the ground of
alleged fraud.25cralaw:red

The Court noted in its 1906 decision that the identity and area of the Hacienda de Mandaloyon were not
disputed by the oppositors in the land registration Proceeding. 26 Neither was the validity of the land
registration proceeding therein impugned by said oppositors. Hence the Court had no occasion there to
discuss the detailed matters dealt with below.chanrobles virtual lawlibrary

However, in at least two subsequent cases cited by Ortigas, the Supreme Court had occasion to affirm
decisions rendered by the Court of Appeals, based on facts adduced before the Courts of First Instance,
clarifying these matters. The legal conclusions drawn in these two cases, as well as the factual findings
on which they were based, supplemented the Cia. Agricola ruling and demonstrate that the land
registration court hearing Widora’s application in LRC No. Q-336, could not have acquired jurisdiction
over the land subject of the application, since that land is already registered under the Torrens system
(TCT Nos. 77652 and 77653) and in fact formed part of a larger tract of land similarly previously brought
under the Torrens system in the name of Ortigas’ predecessor-in-interest.

IV.

In the first of these cases, Felipe C . Navarro v. Ortigas & Co. Ltd. Partnership, 27 this Court affirmed in
1979 by way of a minute resolution the decision of the Court of Appeals in C.A.-G.R. No. 53125-R dated
13 December 1978. 28 In that decision, the Court of Appeals established that the land registration
application of La Compania Agricola de Ultramar over the Hacienda de Mandaloyon was granted under
Decree No. 1425, actually issued under G.L.R.O. Record No. 917 by the Land Registration Court of Manila
in 1905, the very same Decree affirmed by this Court in its 1906 decision. The Court of Appeals noted
that Ortigas had established this proposition by offering an extant portion of Decree No. 1425 covering
land within the territorial jurisdiction of the City of Manila, which "coincides with a portion of the entire
vast tract of land embraced by the technical description appearing in the notice of initial hearing
published in the Manila American and (in) La Democracia (English and Spanish language newspapers of
general circulation existing in 1904, certified true copies of which were offered in evidence by Ortigas)
and was distinctly shown in a map or sketch plotted by Mr. Carlos Angeles, Geodetic Engineer." 29

By way of background, the Navarro case involved a suit for injunction instituted by Ortigas on 11
February 1972 before Branch 16 of the Court of First Instance of Rizal [docketed as Civil Case No. Q-
16265] in order to restrain a certain Felipe Navarro from fraudulently selling portions of its property to
innocent third persons. Felipe Navarro was allegedly the attorney-in-fact of the physical occupants of a
17,955 square meter parcel of land owned by Ortigas and bounded by Amado T. Reyes St., Harapin ng
Bukas St. and Luna St., San Juan, Manila. Felipe Navarro answered the complaint by impugning the
validity of the Torrens titles held by Ortigas over the entire Hacienda de Mandaloyon, situated partially
in Manila, partially in Quezon City and partially in Pasig, 30 because, among other things, they were
allegedly declared void in a decision rendered by Branch 15 of the Court of First Instance of Rizal in Civil
Case No. 7-M(10339). 31

After trial, CFI Judge Sergio Apostol rejected Navarro’s contention in a decision granting injunction dated
16 December 1972, holding that the Ortigas titles were indefeasible, being based on Decree No, 1425
issued in 1905. 32

Before reaching the conclusion that the Ortigas titles had become indefeasible, Judge Apostol satisfied
himself as to the existence of original Decree of Registration No. 1425, issued in 1905 in G.L.R.O. Record
No. 917, from which these titles were derived:jgc:chanrobles.com.ph

"There seems to be no question that there exists in the dockets of the General Land Registration Office a
case known as G.L.R.O. Record No. 917 with La Compania Agricola de Ultramar as petitioner. The record
of said case is, however, no longer complete. Copies of the application for registration, plan, technical

447
description, decision and decree can no longer be found. However, the expediente of the case still
contains documents which reflect part of the proceedings that transpired therein, among which
are:chanrob1es virtual 1aw library

1.’Mocion Pidiento Se Deja Sin Efecto A La Rebeldia’, dated April 13, 1905;

2.’Decision on Motion to Vacate General Default’ dated March 29, 1905:chanrob1es virtual 1aw library

3.’Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge
James Ross on the 29th day of, March, 1905 in G.L.R.O. Record No. 917;

4.’Minutes of the session of the Land Registration Court presided by the Honorable Auxiliary Judge
James Ross on the 29th day (sic) of March, 1905 in G.L.R.O. Record No. 917;

5.’Mocion Emmendado Pidiendo Se Deja sin Efecto A La Sentencia Por Rebeldia’ and

6.’Mocion Pidiendo Se Deja Sin Efecto A La Rebeldia.

The foregoing, the court believes, establishes beyond doubt that there was such a land registration case
known as G.L.R.O. Record No. 917 with Compania Agricola de Ultramar as petitioner.chanrobles virtual
lawlibrary

x x x

Defendant, however, contends that because the decree in that case could no longer be found in the
expediente of the case, Decree No. 1425, the decree number appearing in the titles issued under
G.L.R.O. Record No. 917, is non-existent and fictitious.

To rebut this contention of the defendant, plaintiff presented the following evidence:chanrob1es virtual
1aw library

1. A certified xerox copy of page 18 of the Book of Decrees, Bk. I;

2. A certified xerox copy of page 19 of the game book;

3. A certified xerox copy of Decree No. 1425 insofar as it covers the areas located in Manila;

4. A copy of the letter of transmittal from the Clerk of Court to the Register of Deeds of Manila dated
August 15, 1907 signed by (Clerk of the Land Registration Court) A.K. Jones requesting that a separate
title be issued for each parcel of land covered by Decree No. 1425; and

5. A certification issued by Alberto H. Lingayo, Chief Surveyor of the Land Registration Commission to
the effect that in the index card of ordinary cases kept in the Land Registration Commission, La
Compania Agricola de Ultramar appears to be the petitioner in G.L.R.O. Record Nos. 699, 875 and 917
and that Decree Nos. 240, 696 and 1425 were issued on August 9, 1904, September 14, 1905 and April
26, 1905, respectively in these cases as (shown by) the Decree Book of Ordinary Cases of the
Commission.

This Court finds that there is nothing in Exhibit ‘7’, `384’ or ‘CCCC’ (evidence of defendant Navarro) from
which it may be inferred that Decree No. 1425 is non-existent or fictitious. On the contrary, the
wordings of these certifications imply that such a decree did exist but the same can no longer be found
in the expediente of G.L.R.O. Record No. 917 because it was lost during the war. 33 (Citations of
evidence omitted, Emphasis supplied)

Judge Apostol also established that the Ortigas titles covered a large tract of land described in the
technical description appearing in the initial notice of hearing in G.L.R.O. Record No.
917:jgc:chanrobles.com.ph

448
"All these titles were traced back to their respective Original Certificates of Title, which were issued
under G.L.R.O. Record Nos. 699, 875 and 917. Finally, it (Ortigas) proved that the lands in question are
all embraced by the land described in the notice of the initial hearing in G.L.R.O. Record No. 917 as
published in the Manila American and La Democracia (Exhibit ‘NNNN’), and Decree No. 1425." 34
(Emphasis supplied)

Exhibit ‘NNNN’ (above cited by Judge Apostol) in turn was based on the map plottings prepared by
Geodetic Engineer Carlos Angeles of said technical descriptions as they appeared in certified true copies
of the Manila American and La Democracia. 35

It should also be observed that Judge Apostol had noted an inaccuracy in the designation of the source
titles of TCT Nos. 77652 and 77653 similar to that noted by Widora in this case, but Judge Apostol held
that this inaccuracy did not effect the validity of the titles:jgc:chanrobles.com.ph

"Finally, defendant questions the fact that some of plaintiff’s Transfer Certificates of Title, particularly
Transfer Certificates of Title Nos. 73884, 77652, 71436-A and 77653, show that they were originally
registered under Original Certificates of Title Nos. 19, 313 (sic), 336, 334 (sic) and 699 whereas Original
Certificate of Title No. 19 covers land which is located in Antipolo. Plaintiff’s witness, the surveyor Carlos
Angeles, however, explained this as follows:chanrob1es virtual 1aw library

‘Q. It has been pointed out, Mr. Angeles that the present titles of the plaintiff Ortigas and Company
Limited Partnership now indicate that these lands covered by these titles were originally registered in
Original Certificate of Titles 337, 19, 336 and 334. Were you able to trace how these entries appeared in
these titles?

A. In Transfer Certificate No. 77652 and 77653, it is indicated at the bottom of the title that it came from
Original Certificate of Title Nos. 337, 19, 336, 337 (sic) and 344. We found out that 19 could not have
been a source because it is in Antipolo, Rizal. Now, we traced back this title to show where that error is,
and then we found out that it should have been 13, as indicated in Transfer Certificate of Titles Nos.
443880, 27111, 44381 and 44382. So 19 is just a mere topographical (sic) error.

Q. How about Transfer Certificate of Title No. 699?

A. 699 is a G.L.R.O. Record Number, which was typed on the title.’

To better illustrate this, plaintiff’s witness traced these errors in a diagram which he prepared and which
was marked as Exhibit ‘YYYY’.chanrobles.com:cralaw:red

This Court is satisfied that the error in the statement of the sources of plaintiff’s titles was, as shown by
Exhibit ‘YYYY’, merely typographical. Besides, these errors do not go into the validity of plaintiff’s titles.
And they have all been traced to their respective Original Certificates of Title." 36 (Citations of evidence
omitted; Emphasis supplied)

The decision of Judge Apostol was affirmed in its entirety by Gaviola, J. of the Court of Appeals. 37 As
noted earlier, Felipe Navarro’s petition for review of the Gaviola decision was denied by the Supreme
Court for lack of merit. 38 The Court’s minute resolution is a judgment on the merits for the purpose of
applying the principles of bar by prior judgment and conclusiveness of judgment. 39

The factual matters raised, controverted, litigated and established in G.R. No. 50156 (Navarro v. Ortigas)
which are relevant to the present case are as follows: 1) the inaccuracies in the sourcing of the mother
titles of TCT Nos. 77652 and 77653 did not impair their probative value as evidence of Ortigas,
ownership over the land described in their technical descriptions; 2) the Registry of Deeds of Manila was
the source of an original copy of Decree No. 1425 to the extent that that Decree covered property
situated in Manila; but this Decree, in its entirety, really covers much more, i.e., the entire Hacienda de
Mandaloyon; 3) the extant sources of the boundaries of the Hacienda de Mandaloyon are the technical
descriptions thereof appearing in the initial notice of hearing in G.L.R.O. Record No. 917; and 4) the land
described in and covered by TCT Nos. 77652 and 77653 formed part of the Hacienda de Mandaloyon.

449
Under the doctrine of conclusiveness of judgment, these factual matters established in G.R. No. 50156
are binding on Widora and can no longer be relitigated by it in G.R. No. 91797. 40 Both cases, to a
certain extent, involve the same subject matter (i.e., the parcels of land described in Ortigas’ TCT Nos.
77652 and 77653. Ortigas’ cause of action in G.R. No. 50156 consisted of the fraudulent sales of its
property made by Felipe Navarro in behalf of his "owner" clients. That differs somewhat from Ortigas’
cause of action in G.R. No. 91797, which consists of the adverse claim of ownership asserted by Widora
over Ortigas’ property, manifested through the filling of Widora’s application for land registration. But
more importantly, there is a substantial identity between Felipe Navarro (and his clients) on one hand
and Widora on the other; both parties sought to question the validity of Decree No. 1425 and its
particular derivatives here involved (TCT Nos. 77652 and 77653), insofar as the Decree had adjudicated
in favor of Ortigas ownership of land being claimed by Navarro and Widora. This circumstance makes
them privies in law for purposes of the operation of the rule on conclusiveness of judgment. 41

Furthermore, it must be observed that Widora is bound by the ruling laid down in the Cia. Agricola case
of 1906 that Ortigas (through its predecessor-in-interest) is the registered owner of land comprising the
Hacienda de Mandaloyon because the factual matters resolved in the Navarro case show that the land
covered by Widora’s application forms part of that vast tract of land adjudicated to Ortigas’
predecessor-in-interest in the 1906 decision.

Finally, as held in the Court of Appeals decision which we affirmed in G.R. No. 50156, the Torrens titles
of Ortigas served as evidence of its indefeasible title over the property covered thereby and they
became incontrovertible one year after entry of the final decree of registration from which they were
derived in 1906. 42 The Supreme Court’s affirmance of this ruling in fact constitutes a holding that the
land covered by these titles (particularly TCT Nos. 77652 and 77653) have been duly brought under the
Torrens System of land registration and that this circumstance prevented the land registration court
hearing Widora’s application in LRC No. Q-336 from acquiring jurisdiction over the land covered by that
application. 43

V.

In the second previously decided case, Del Rosario, et. al. v. Ortigas & Co. Ltd. Partnership, 44 the
Supreme Court affirmed the decision of the Court of Appeals in A.C.-G.R. CV No. 61356 dated 29
December 1983, 45 holding that various Ortigas TCT’s, including TCT Nos. 77652 and 77653, overlapping
various portions of seventy-hectare parcel of land situated in Ugong Norte, Pasig and Bagumbayan,
Quezon City had become indefeasible and could no longer be impugned by the physical occupants of the
overlapping property. 46

By way of background, this Del Rosario case originated as Civil Case No. 7-M(10339) before Branch 15 of
the CFI of Rizal. In 1967, two (2) groups of occupants of the disputed property, faced with final and
executory judgments for ejectment obtained by Ortigas, instituted this Del Rosario case as a class suit to
impugn the validity of Ortigas’ Torrens titles. The theory of the plaintiffs was that G.L.R.O. Record No.
917, and its incidents, were void ab initio for alleged lack of notice of initial hearing, among other
reasons. In a decision dated 31 March 1970, Judge Vivencio Ruiz ruled in favor of the plaintiffs and
declared the Ortigas TCTs null and void.

Judge Ruiz’ decision was, however, nullified on petition for certiorari, prohibition and mandamus by the
Court of Appeals in its decision dated 12 November 1971 in C.A.-G.R. No. 00039-R. 47 The Court of
Appeals also decreed a remand of the case for new trial based on Ortigas’ newly-discovered evidence.
48 This decision was affirmed by the Supreme Court in G.R. No. L-34440 by a Resolution dated 4 April
1972. 49

In a decision dated 3 November 1973, CFI Judge Arsenio Alcantara (to whom the case was remanded)
rendered a decision on new trial upholding and confirming, among others, "the validity of Decree No.
1425, issued in Expediente 917 and all titles emanating therefrom." This decision was affirmed in its
entirety by the Court of Appeals in AC-G.R. No. CV-61356, as noted earlier. 50 In turn, this Court of
Appeals decision was affirmed by the Supreme Court in G.R. No. 66110 in a Resolution denying Del
Rosario’s petition for review for lack of merit dated 16 February 1985. 51

450
It should be noted that Ortigas’ evidence and argument establishing the existence and regularity of the
proceedings in G.L.R.O. Record No. 917 and of Decree No. 1425 from which its controverted TCTs were
derived, first adopted in the Navarro case, were likewise used and sustained again in the Del Rosario
case, 52 and are, by and large, the same evidence and argument submitted by Ortigas to resolve the
same alleged factual uncertainty raised for the third time in this case. 53

In the Del Rosario case, Geodetic Engineer Carlos Angeles again drew and offered in evidence a map
indicating the full extent of the Hacienda de Mandaloyon, based on plottings of the technical
descriptions appearing in the initial notice of hearing in G.L.R.O. Record No. 917, offered and marked as
Exhibit 43-A New Trial. 54 Judge Alcantara noted that these plottings were quite adequate for the
purpose of identifying the land registered in Cia. Agricola’s name in 1906:chanrobles virtual lawlibrary

"Plaintiffs [Del Rosario, Et. Al.] also attempted to show as per technical description published in the
Manila American and La Democracia, a polygon does not close such that one cannot give the exact area
of the land sought to be registered. They claim that the plan submitted by said Surveyor Carlos Angeles
is ‘doctored’ because it had a closed polygon. In this connection, it should be emphasized that the
Hacienda Mandaloyon is a vast tract of land having an area of 4,000 hectares with natural boundaries
consisting of rivers and creeks as shown in the plan Exh.’3A New Trial. Its natural boundaries are the
Marikina-River, Pasig River, San Juan River, Diliman Creek and Estero de Buaya, etc. Indeed, boundaries
which are natural and fixed such as creeks and rivers, not the area, should govern in determining the
identity of the land sought to be registered. And even conceding that the magnetic survey employed in
surveying the disputed property in 1904 was erroneous, yet ‘mistake in survey is not a ground for
alteration of decree of registration.’ In fact, plaintiffs’ [Del Rosario] witness, Geodetic Engineer Pedro
Samson, readily admitted that the properties being claimed by them are inside the area described in the
notices." 55 (Citations omitted; Emphasis supplied)

Exhibit 43-A New Trial submitted in the Del Rosario case showed the boundaries and location of the
entire Hacienda Mandaloyon. Annex P submitted in the present Widora case shows the same entire
Hacienda Mandaloyon and is identical with Exhibit-43-A New Trial. In the present Widora case, Ortigas
also submitted Annex K-1 to show the location and boundaries of the land covered by TCT Nos. 77652
and 77653. When the map which is Annex K-1 is placed side by side with (or on top of) the map of the
whole Hacienda Mandaloyon which is Exhibit 43-A New Trial and Annex P, the Annex K-1 map coincides
with a portion of the Exhibit 43-A map. In other words, the lots covered by TCT Nos. 77652 and 77653
which are mapped in Annex K-1 constituted a portion of the Hacienda Mandaloyon. These Exhibits also
show that the parcels of land covered by TCT Nos. 77652 and 77653 are located west of the Marikina
river, which river was established in Del Rosario to be the eastern natural boundary of the Hacienda de
Mandaloyon.

Thus, once more, it is apparent that the factual matters which Widora seeks to litigate in G.R. No. 91797
have already been resolved in the Del Rosario case. Since the subject matter of the controversy in Del
Rosario and in G.R. No. 91797 are identical (parcels of land covered by TCT Nos. 77652 and 77653), the
cause of action of Widora in G.R. No. 91797 is identical to that of the petitioners in Del Rosario, i.e., the
petitioners in Del Rosario contested Ortigas’ claim of ownership over the land from which they were
being ejected, which is of course the same claim of ownership embodied in Ortigas’ opposition to
Widora’s land registration application over the same land in the instant case. It follows that Widora in
G.R. No. 91797 must also be deemed privy in law of the petitioners in Del Rosario (for they too assailed
the validity of Decree No. 1425 and its particular derivatives, TCT Nos. 77652 and 77653). Accordingly,
the factual and legal matters resolved with finality in the Del Rosario case, which are determinative of
the merits of Widora’s application for land registration in G.R. No. 91797 must be considered, as in the
Navarro case, as a bar to the grant of the Widora application under the rule on conclusiveness of
judgment.

VI.

There is another important element of Widora’s claim being asserted in the present proceedings which
is precluded by both the principle of bar by prior judgment and the principle of conclusiveness of
judgment. Widora’s application for registration in the present case (LRC No. Q-336), essentially rests on
an alleged Spanish title: "Titulo de Propiedad No. 4136," dated 25 April 1894, said to be issued in the

451
name of one Mariano San Pedro y Esteban, supposedly covering land of unimaginably large proportions:
173,000 hectares in Bulacan, Nueva Ecija, Rizal, Quezon City, Caloocan City and Pasay City. 56

Back in 10 December 1976, or only two (2) years after Widora had filed LRC No. Q-336, one Justino
Benito and Widora commenced another case, Civil Case No. Q-22410 before the CFI of Quezon City.
Benito claimed there that he was co-administrator of the intestate estate of Don Mariano San Pedro y
Esteban, and that part of this estate was land covered by the supposed Spanish title, including a piece of
land situated in Ugong Norte, Pasig and Bagumbayan, Quezon City, which land was covered by TCT Nos.
77652 and 77653 issued in Ortigas’ name. Benito and Widora, therefore, sought in Q-22410 to annul
those TCTs for covering land allegedly previously owned by the Don Mariano San Pedro y Esteban estate
as evidenced by the supposed Titulo de Propiedad No. 4136, and subsequently sold or assigned by the
estate to Widora. 57

Ortigas moved to dismiss the Benito-Widora complaint, arguing inter alia, that the alleged Spanish title
relied upon by Benito and Widora had already been divested of probative value as evidence of land
ownership, by P.D. No. 892. Ortigas’ motion to dismiss was sustained on that ground by the trial court in
a decision dated 28 February 1978. 58

That decision of the trial court in Q-22410 was affirmed on appeal by the Court of Appeals in C.A.-G.R,
No. CV-64424 in a decision written by Jurado, J., dated 31 May 1984. The Court of Appeals, thus,
affirmed the trial court’s ruling that the Spanish title relied upon by Benito and Widora was no longer
any good. 59

Widora (but not Benito) went on a Petition for Review before the Supreme Court, in G.R. No. 69343. This
Court affirmed the decision of the Court of Appeals in a minute resolution dated 6 February 1985. Entry
of final judgment was made on 29 March 1985. 60

As noted, in the case at bar, Widora is relying upon the same supposed Spanish title - Titulo de
Propiedad No. 4136. We believe and so hold that the Resolution of this Court in G.R. No. 69343, holding
that that alleged Spanish title had become bereft of any probative value is res adjudicata in respect of
the present case. Put a little differently, the principle of bar by prior judgment precludes any reliance by
Widora in the case at bar on that fantastic Spanish title considering the essential identities of parties and
identity of subject matter and of cause of action between Civil Case No. Q-22410 and LRC Case No. Q-
336.chanrobles.com.ph : virtual law library

We should add that Widora’s prayer for alternative relief in the form of confirmation of imperfect title
over the land covered by its application for registration, is immaterial. That alternative relief is also
premised upon Widora’s claim that Ortigas had fraudulently registered the land in its (Ortigas) own
name such that the land remained presumptively public land. The firmly entrenched rule is that a party
can not evade the application of the principle of bar by prior judgment by simply varying the form of the
action or by adopting a different mode of presenting its case. 61

VII.

We consider finally the question of whether or not the defense of res adjudicata has been waived by
Ortigas by failure to plead that defense seasonably in its opposition or motion to dismiss in LRC No. Q-
336.

We believe and so hold that there was no such waiver of res adjudicata by Ortigas in the case at bar. It is
most important to note, in the first place, that the defense of res adjudicata pleaded by Ortigas in this
case relates ultimately to the jurisdiction of the land registration court to try LRC No. Q-336. The Court
of Appeals correctly stressed that Ortigas having shown that the land applied for by Widora is already
registered in Ortigas’ name, the land registration court simply had no jurisdiction to decree the
registration of that same land in the name of some other person. The well-established rule is that lack of
jurisdiction which renders an action dismissible may be determined by the court seized with it motu
proprio, and may be raised by a party, at any stage of the proceedings even on appeal. 62

With particular reference to the ruling that Widora’s alleged Titulo de Propiedad No. 4136 was bereft of

452
probative value, we note that the Benito-Widora case reached finality (in the Supreme Court) only in
1985, when the proceedings in the motion to dismiss filed by Ortigas in LRC No. Q-336 were already in
an advanced stage.

In the second place, the Resolutions of the Supreme Court in the Navarro and Del Rosario cases,
disposed of those cases on their merits by affirming the pertinent decisions of the Court of Appeals.
Those Resolutions are part of the case law and the records of this Court itself of which we are bound to
take judicial notice. 63 We are certainly not at liberty to disregard them in any case. So to disregard our
own decisions would be to inflict substantial injustice and irreparable injury upon Ortigas which would
be compelled to do all over again what it had done at least twice before — to prove it has indefeasible
title to the land covered by TCT Nos. 77652 and 77653. The resulting injustice and injury would not be
limited to Ortigas, but would engulf many thousands of present registered private owners of Transfer
Certificates of Title covering the thousands of hectares of land embraced by Decree No. 1425. The grave
social implications of permitting a cloud to arise on all those Transfer Certificates of Title by our failure
to take into account our own decisions in earlier cases, can scarcely be contemplated.

In the third place, waiver of res adjudicata, certainly in cases like the one before us, cannot casually be
assumed to have been made. What is involved here is not an academic doctrine of law but very valuable
property rights, so valuable that at least thrice before, various persons or groups of persons (including
Widora, for the second time) have attempted to usurp title thereto by assailing the same two (2) TCTs.
Ortigas tenaciously fought off those efforts at least three (3) times before, from the trial court thru the
Court of Appeals to our own Court, each litigation stretching out to many years. In this situation, only
the most explicit and deliberate statement, in unmistakable language, will suffice to constitute waiver;
that is certainly not present here. What is claimed here is merely implied or presumed waiver, which has
been expressly denied by Ortigas. Yet as Lantin, J. of the respondent Court of Appeals observed, as far
back as 27 June 1979, in its motion for reconsideration of the trial court’s order of 20 April 1979 denying
its motion to dismiss, Ortigas had already brought to the attention of the trial court the fact that its
assailed titles had been upheld by Courts of First Instance and appellate courts in prior cases. 64
Moreover, during the proceedings on Ortigas’ motion to dismiss, the Government itself, through the
Land Registration Commission, had advised the trial court that the 156 hectare parcel Widora was
seeking to register were "covered by valid and subsisting titles in the name of Ortigas." 65

Finally, the record of the instant case shows that Ortigas pleaded as a special and affirmative defense
bar by prior judgment in its very first Opposition dated 13 October 1978 to Widora’s application in LRC
Q-336. 66 That defense was elaborated by Ortigas in its motion to dismiss dated 23 October 1978,
where it stressed that the land applied for was already registered in its name under the Torrens system
and that such previous registration of its title amounts to res adjudicata binding upon the whole world.
67 During the protracted hearings on its motion to dismiss before the trial court, Ortigas specifically
pleaded our decision in the Benito-Widora case which by the had attained finality, in a Memorandum
dated 28 October 1986 as a bar to further proceedings in the case at bar. In its motion for
reconsideration of the trial court’s order denying the motion to dismiss, Ortigas again specifically
pleaded the Benito-Widora case, as well as the Compania Agricola case to show that its registered title
over the disputed land had become indefeasible. 68 Further, Ortigas specifically pleaded not only the
Compania Agricola and the Benito-Widora cases but also the decisions in the Navarro, Del Rosario and
Ruiz cases in its petition for certiorari, prohibition and mandamus before the Court of Appeals, 69 We
accordingly find it extremely difficult to suppose that there was implied or presumed waiver here of the
defense of res adjudicata.chanrobles lawlibrary : rednad

FOR ALL THE FOREGOING, we hold that the Motion for Reconsideration should be as it is hereby
GRANTED; that our Decision dated 28 August 1991 is hereby RECONSIDERED and SET ASIDE; that
Widora’s Petition for Review in the instant case is hereby DENIED for lack of merit. The Regional Trial
Court’s order of 30 March 1988 is hereby SET ASIDE and that court is hereby ORDERED to dismiss
immediately LRC Case No Q-336. The Decision and Resolution of the Court of Appeals dated 27
November 1989 and 25 January 1990, respectively, are hereby AFFIRMED in toto. Costs against
petitioner.

Gutierrez, Jr., Davide, Jr. and Romero, JJ., concur.

453
G.R. No. 130707. July 31, 2001

VERONICA ROBLE, LILIBETH R. PORTUGALIZA, and BOBBY PORTUGALIZA, Petitioners, v. DOMINADOR

ARBASA and ADELAIDA ARBASA, Respondents.

DECISION

PARDO, J.:

Petitioners appeal via certiorari from the decision 1 of the Court of Appeals which set aside the decision
of the trial court and declared respondents lawful owners and possessors of the entire parcel of land
with a total area of eight hundred eighty four (884) square meters, situated at Poblacion, Isabel, Leyte,
covered by Tax Declaration No. 67 in the name of respondent Adelaida Arbasa. 2cräläwvirtualibräry

On January 2, 1976, spouses Dominador Arbasa and Adelaida Roble (hereinafter referred to as
respondents) purchased from Fidela Roble an unregistered parcel of land located at Poblacion, Isabel,
Leyte. 3 As reflected on the deed of sale, the property had a total land area of two hundred forty (240)
square meters. Due to their diligent efforts in reclaiming a portion of the sea, using stones, sand and
gravel, the original size of two hundred forty (240) square meters increased to eight hundred eighty four
(884) square meters, 4 described as follows:

A parcel of residential land with all the improvements thereon; bounded on the North, by Lot Nos. 036
and 037; East, by Roxas Street; South, Seashore and CAD Lot No. 952; and West, by Lot Nos. 024 and 025.
It has an area of 884 sq. meters, more or less, and declared in the name of plaintiff Adelaida Arbasa
under Tax Declaration no. 7068-A and later superseded by Tax Declaration No. 67. It has an assessed
value of P31,870.00.5cräläwvirtualibräry

Since 1976 and until the present, respondents have been in actual, open, peaceful and continuous
possession of the entire parcel of land in the concept of owners and had it declared for taxation
purposes in the name of respondent Adelaida Arbasa. Included in the sale were the improvements
found on the land, consisting mainly of the house of Fidela. 6cräläwvirtualibräry

Adelaida tolerated her sister Fidelas continued stay at the house. Living with Fidela in the same house
were their nieces, petitioners Veronica Roble and Lilibeth Roble as well as the latters spouse Bobby
Portugaliza. Veronica and Lilibeth Roble are the daughters of Gualberto Roble, deceased brother of
Fidela and Adelaida.

Shortly after Fidelas death on June 15, 1989, petitioners Veronica and Lilibeth Roble claimed ownership
of the house and the southern portion of the land with an area of 644 square meters. Fidela died
intestate and without issue. Meanwhile, Gualberto Roble, petitioners father, died sometime in
December 1986.

In January 1990, petitioners had this parcel of land declared for taxation purposes in the names of Fidela
Roble under Tax Declaration No. 8141 and of Gualberto Roble under Tax Declaration No. 8142.

As efforts to have them vacate the house and desist from claiming the parcel of land failed, respondent
spouses Dominador and Adelaida Roble-Arbasa, referred the dispute to the barangay authorities for
conciliation. Nothing happened at the barangay level. 7 Hence, on February 27, 1990, spouses

Arbasa filed with the Regional Trial Court, Branch 12, Ormoc City an action for quieting of title with
damages. 8cräläwvirtualibräry

On April 4, 1990, petitioner Veronica Roble, Lilibeth Roble and Bobby Portugaliza filed an answer to the
complaint denying its material allegations. 9 They said that the total area of the lot which respondents
bought from Fidela consisted only of two hundred forty (240) square meters, located at the northern
portion of the property. This property was originally classified as foreshore land, but in 1957, due to the
effort of Ireneo Roble, father of Fidela, Adelaida and Gualberto, a portion of the sea was reclaimed and
filled up. This was the piece of property where respondents exercised open, public and continuous

454
possession in the concept of owner, and which had been declared for taxation purposes in the name of
Adelaida Roble in Tax Declaration No. 7068. 10 With the issuance of a new tax declaration in the name of
Adelaida, Tax Declaration No. 5108-R-5 originally registered in the name of Fidela Roble, was
cancelled. 11cräläwvirtualibräry

Petitioners attached as an integral part of their answer a copy of the deed of sale dated January 2, 1976,
executed by Fidela Roble in favor of Adelaida Arbasa. The property subject of the sale was aptly
described as follows:

This is a whole parcel of residential land, located at Poblacion, Isabel, Leyte, per Tax Declaration No.
5108-R-5, under the name of Fidela Roble, being bounded on the North, by Matilde Evangelista; East, by
Harrison now Roxas Street; South, by Seashore; and West, by Crestito Manipes, having an area of 240
square meters more or less, with improvements thereon.12cräläwvirtualibräry

In the late 1960s, Ireneo, with the help of his son Gualberto reclaimed additional portion of the seashore
at the southern portion adjacent to the 240 square meters land earlier reclaimed and declared in the
name of Fidela Roble. Because of this, the original area of two hundred forty (240) square meters
increased by six hundred forty four (644) square meters and became eight hundred eighty four (884),
including the portion sold to Adelaida. The 644 square meters was then divided into two (2) lots of equal
proportion, evidenced by Tax Declaration Nos. 8141 13 and 8142 14 in the names of Fidela and Gualberto,
respectively. Payment of taxes on both tax declarations commenced in the year
1980. 15cräläwvirtualibräry

Constructed over the eight hundred eighty four (884) square meters lot were three (3) concrete houses.
One of the houses was located over the two hundred forty (240) square-meter parcel of land that
spouses Arbasa bought from Fidela. The other houses belonged to Fidela, located at the central portion,
and Gualberto, which was constructed over the southernmost portion of the eight hundred eighty (884)
square meters land.

The house at the central portion was first declared in the name of Fidela under Tax Declaration No. 3548,
commencing with the year 1974. 16 This was later cancelled by Tax Declaration No. 5057, covering the
year 1979, and later was cancelled by Tax Declaration No. 3638, beginning with the year
1985. 17 Meanwhile, the house at the southernmost portion of the land was declared in Gualbertos
name under Tax Declaration No. 3549, 18 commencing with the year 1974, later cancelled by Tax
Declaration No. 5060, 19 then by Tax Declaration No. 5662. 20 The latest tax declaration on the residential
house, Tax Declaration No. 226 21 cancelled the previous ones and commenced in the year 1989.

The two lots located at the southern portion, according to petitioners, were owned by their
predecessors-in-interest Fidela (322 square meters) and Gualberto Roble (322 square meters) who had
open, public and continuous possession in the concept of owner. Like Fidelas house, the two (2) parcels
of land had been possessed in the concept of owners by their predecessors-in-interest, and were not
included in the deed of sale.

At the pre-trial conference held on July 4, 1990, the parties defined the issue to be: whether the deed of
sale executed on January 2, 1975 by Fidela Roble in favor of respondents conveyed the entire eight
hundred eighty four (884) square meters parcel of land, including the house of Fidela, or it covered only
two hundred forty (240) square meters located at the northern portion of the
property. 22cräläwvirtualibräry

On July 16, 1991, the trial court rendered a decision finding that the January 2, 1976 deed of absolute
sale executed by Fidela Roble covered only a total area of two hundred forty (240) square meters in
favor of respondents and not the entire eight hundred eighty four (884) square meters claimed by
respondents. Moreover, the house of Fidela was not found on the 240 square meters parcel subject of
the deed of sale, and such improvement was not included in the sale.

The trial court held that pursuant to Rule 130, Section 9 of the Revised Rules on Evidence, the deed of
sale was the best evidence of the contents of the agreement. Based on the documentary evidence
consisting of the deed of absolute sale and tax declarations issued over the property, the house of Fidela

455
Roble was not situated on the part of the property that was sold to respondents. Hence, respondents
claim has no basis. The dispositive portion of the afore-said decision reads:

WHEREFORE, judgement is hereby rendered finding the plaintiffs the owners in fee simple of only TWO
HUNDRED FORTY Square Meters (240), more or less, of the parcel of land subject of the complaint and
described in T. D. No. 7068; dismissing the counter-claim and ordering the plaintiffs to pay the
costs.23cräläwvirtualibräry

On August 8, 1991, respondents appealed the decision to the Court of Appeals. 24cräläwvirtualibräry

On August 15, 1991, petitioners appealed the decision insofar as it denied their claim for damages and
attorneys fees. 25 Petitioners claimed that they were compelled to hire the services of a lawyer because
respondents filed suit against them, which the latter knew was malicious and without basis in law or in
fact.

After due proceedings, on January 15, 1997, the Court of Appeals promulgated its decision affirming the
finding of the trial court that the deed of sale conveyed only 240 square meters of the parcel of land
existing at the time of the sale.

The Court of Appeals observed that from the wording of the deed of sale, Fidela Roble sold to
respondents the whole parcel of residential land bounded on the south by the seashore. The Court of
Appeals opined that this technical description, as contained in the deed of sale, lent credence to the
claim of respondents that they were responsible for reclaiming the 644 square meters claimed by
petitioners. For if at the time of sale the 644 square meters were already in existence, the deed of sale
would have described the metes and bounds of the property that was sold in a different way. It would
have referred to the boundary at the south as the remaining portion of the vendors property or would
have mentioned the names of Fidela or Gualberto Roble as the owners of the adjoining properties, and
not described the seashore as the boundary in the south. The dispositive portion of the decision reads,
thus:

WHEREFORE, foregoing premises considered, we rule in favor of plaintiffs-appellants and SET ASIDE the
judgment of the lower court. Another one is hereby entered declaring them as lawful owners and
entitled to the possession of the entire parcel of land containing an area of 884 square meters, which is
covered by Tax Declaration No. 67 in the name of plaintiff-appellant Adelaida Roble Arbasa.

No pronouncement as to costs.

SO ORDERED.26cräläwvirtualibräry

On August 13, 1997, the Court of Appeals denied the petitioners motion for reconsideration for lack of
merit. In so ruling, the court said:

We have repeatedly ruled that where land is sold for lump sum and not so much per unit of measure or
number, the boundaries of the land stated in the contract determine the effects and scope of the sale,
not the area thereof. Hence, the vendors are obligated to deliver all the land included within the
boundaries regardless of whether the real area should be greater or smaller than that recited in the
deed. This is particularly true when the area is described as humigit kumulang, that is, more or
less.27cräläwvirtualibräry

Hence, this appeal. 28cräläwvirtualibräry

We find the appeal meritorious.

Jurisprudence teaches us that as a rule, jurisdiction of this Court in cases brought to it from the Court of
Appeals is limited to the review and revision of errors of law committed by the appellate court. 29 As the
findings of fact of the appellate court are deemed conclusive, 30 this Court is not duty-bound to analyze
and weigh all over again the evidence considered in the proceedings below.

456
However, this rule is not absolute. 31 There are exceptional circumstances that would compel the Court
to review the findings of fact of the Court of Appeals. 32cräläwvirtualibräry

Here, the Court of Appeals findings and conclusions are contrary to those of the trial court.

After an assiduous scrutiny of the evidence, we find reason to reverse the factual findings of the Court of
Appeals and affirm that of the trial court.

The sale that transpired on January 2, 1976 between vendor Fidela and vendee Adelaida was one
of cuerpo cierto or a sale for lump sum. Pursuant to Article 1542, Civil Code of the Philippines, in the sale
of real estate, made for a lump sum and not at the rate of a certain sum for a unit of measure or number,
there shall be no increase or decrease of the price although there be a greater or lesser area or number
than that stated in the contract. Thus, the obligation of the vendor is to deliver everything within the
boundaries, inasmuch as it is the entirety thereof that distinguishes the determinate
object. 33cräläwvirtualibräry

However, this rule admits of an exception. A vendee of land, when sold in gross or with the description
more or less with reference to its area, does not thereby ipso facto take all risk of quantity in the land.
The use of more or less or similar words in designating quantity covers only a reasonable excess or
deficiency. 34 In the case at bar, the parties to the agreement described the land subject of the sale in
this wise:

This is a whole parcel of residential land, located at Poblacion, Isabel, Leyte, per Tax Declaration No.
5108-R-5, under the name of Fidela Roble, being bounded in the North, by Matilde Evangelista; East, by
Harrison now Roxas Street; South, by Seashore; and West, by Cristito Manipes, having an approximate
area of 240 square meters more or less, with all improvements thereon:[emphasis supplied]

An area of 644 square meters more is not reasonable excess or deficiency, to be deemed included in the
deed of sale of January 2, 1976.

Moreover, at the time of the sale, the only piece of land existing was 240 square meters, the subject of
the deed of sale. This 240 square meters parcel of land was originally foreshore land, hence, not
alienable and disposable. It was only in 1952, that Fidela applied for and was granted a foreshore
lease. 35 In 1965, the provincial assessor issued a tax declaration in her name. 36 Respondent Adelaida
admitted this fact, thus:

ATTY ESCALON

Q Is it not a fact that this land of 280 [sic] square meters was applied by Fidela Roble for foreshore lease
way back in 1952? Are you aware of that?

A I know, sir.

Q And at that time in 1952, only these 280 square meters was yet existing. Do you agree with me on
that?

A Yes, sir.

Q And these 280 [sic] square meters exist because of the diligence of Fidela Roble in filling this up with
boulders, rocks, sand and gravel?

A That is not correct, because that was sold to me under a Deed of sale.

Q Is it not a fact that prior to the sale and prior to the existence of the 280 [sic] square meters, this was
yet part of the littoral zone or part of the sea?

A Yes, sir.

457
Q And you caused the reclamation of the original area?

A It was she who did it because it was not yet sold to me. 37cräläwvirtualibräry

Adela confirmed that when the sale took place in 1976, the houses of Fidela and Gualberto, constructed
earlier in 1971, were situated on foreshore lands adjacent to the property that Fidela sold to her. The
houses, made of concrete materials and are two-stories high, could be reached by seawater. 38 This lent
credence to the claim of petitioners that what was sold to respondents was indeed only 240 square
meters parcel of land. This also explained why in the technical description of the property as embodied
in the deed of sale, the property was described as bounded on the south by the seashore.

As held by the trial court, when the terms of an agreement had been reduced to writing, it is considered
as containing all the terms agreed upon and there can be, between the parties and their successor-in-
interest, no evidence of such terms other than the contents of the written
agreement. 39cräläwvirtualibräry

We find no ambiguity in the terms and stipulations of the deed of sale. Contracts are the laws between
the contracting parties. It shall be fulfilled according to the literal sense of their stipulations. If their
terms are clear and leave no room for doubt as to the intention of the contracting parties, the contracts
are obligatory no matter what their forms may be, whenever the essential requisites for their validity
are present. 40 Sale, by its very nature, is a consensual contract because it is perfected by mere consent.
The essential elements of a contract of sale are the following: (a) consent or meeting of the minds, that
is consent to transfer ownership in exchange for the price; (b) determinate subject matter; and (c) price
certain in money or its equivalent. 41 All these elements are present in the instant case.

Moreover, parol evidence rule forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of the
parties written agreement, other or different terms were agreed upon by the parties, varying the
purport of the written contract. When an agreement has been reduced to writing, the parties can not be
permitted to adduce evidence to prove alleged practices, which to all purposes would alter the terms of
the written agreement. Whatever is not found in the writing is understood to have been waived and
abandoned. 42cräläwvirtualibräry

The rule is in fact founded on long experience that written evidence is so much more certain and
accurate than that which rests in fleeting memory only, that it would be unsafe, when parties have
expressed the terms of their contract in writing, to admit weaker evidence to control and vary the
stronger and to show that the parties intended a different contract from that expressed in the writing
signed by them. 43cräläwvirtualibräry

The rule is not without exceptions, however, as it is likewise provided that a party to an action may
present evidence to modify, explain, or add to the terms of the written agreement if he puts in issue in
his pleadings: (a) an intrinsic ambiguity, mistake or imperfection in the written agreement; (b) the failure
of the written agreement to express the true intent and agreement of the parties thereto; (c) the
validity of the written agreement; or (d) the existence of other terms agreed to by the parties or their
successors in interest after the execution of the written agreement. 44cräläwvirtualibräry

None of the aforecited exceptions finds application to the instant case. Nor did respondents raise this
issue at the proceedings before the trial court.

With regard to the ownership over the 644 square meters of land located at the southern portion of the
original 240 square meters conveyed to Adela, there is a question regarding the true nature of the land,
which has the features of a foreshore land.

Even though respondents claim that they were responsible for reclaiming the portion of the foreshore
land adjacent to the property they bought from petitioners predecessor in interest, there is no evidence
that respondents subsequently filed an application for lease with regard to the 644 square meters of
reclaimed land.

458
Foreshore land is a part of the alienable land of the public domain and may be disposed of only by lease
and not otherwise. 45 It is the strip of land that lies between the high and low water marks and is
alternatively wet and dry according to the flow of tide. 46 It is that part of the land adjacent to the sea,
which is alternately covered and left dry by the ordinary flow of tides. 47cräläwvirtualibräry

There is a need, therefore, to determine whether the lands subject of the action for quieting of title are
foreshore lands. The classification of public lands is a function of the executive branch of government,
specifically the director of lands (now the director of the Lands Management Bureau). Due to the dearth
of evidence on this particular issue, we cannot arrive at a conclusive classification of the land involved.
The instant case has to be remanded to the trial court for that determination.

WHEREFORE , the petition is hereby GRANTED. The decision of the Court of Appeals in CA-G. R. CV No.
38738 is hereby SET ASIDE. The case is remanded to the Regional Trial Court, Branch 12, Leyte for
further proceedings.

No costs.

SO ORDERED.

Puno, Kapunan, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., on official business.

[G.R. NO. 156879 : January 20, 2004]

FLORDELIZA CALPATURA FLORA, DOMINADOR CALPATURA and TOMAS CALPATURA, JR., Heirs of
TOMAS CALPATURA, SR., Petitioners, v. ROBERTO, ERLINDA, DANIEL, GLORIA, PATRICIO, JR. and EDNA,
all surnamed PRADO and NARCISA PRADO, Respondents.

DECISION

YNARES-SANTIAGO, J.:

The property under litigation is the northern half portion of a residential land consisting of 552.20
square meters, more or less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer
Certificate of Title No. 71344 issued on August 15, 1963 by the Register of Deeds of Quezon City in the
name of Narcisa Prado and her children by her first husband, Patricio Prado, Sr., namely, Roberto,
Erlinda, Daniel, Gloria, Patricio, Jr. and Edna, respondents herein.

The pertinent facts are as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

On December 19, 1959, Patricio Prado, Sr. died. Narcisa subsequently married Bonifacio Calpatura. In
order to support her minor children with her first husband, Narcisa and her brother-in-law, Tomas
Calpatura, Sr., executed on April 26, 1968 an Agreement of Purchase and Sale whereby the former
agreed to sell to the latter the northern half portion of the property for the sum of P10,500.00.1 On July
28, 1973, Narcisa executed a Deed of Absolute Sale in favor of Tomas over the said property.2 ςrνll

In 1976, Tomas daughter, Flordeliza Calpatura Flora, built a two-storey duplex with firewall3 on the
northern half portion of the property. Respondents, who occupied the southern half portion of the land,
did not object to the construction. Flordeliza Flora and her husband Wilfredo declared the property for
taxation purposes4 and paid the corresponding taxes thereon.5 Likewise, Maximo Calpatura, the son of
Tomas cousin, built a small house on the northern portion of the property.

On April 8, 1991, respondents filed a complaint for declaration of nullity of sale and delivery of
possession of the northern half portion of the subject property against petitioners Flordeliza Calpatura
Flora, Dominador Calpatura and Tomas Calpatura, Jr. before the Regional Trial Court of Quezon City,

459
Branch 100, docketed as Civil Case No. Q-91-8404.6 Respondents alleged that the transaction embodied
in the Agreement to Purchase and Sale between Narcisa and Tomas was one of mortgage and not of
sale; that Narcisas children tried to redeem the mortgaged property but they learned that the blank
document which their mother had signed was transformed into a Deed of Absolute Sale; that Narcisa
could not have sold the northern half portion of the property considering that she was prohibited from
selling the same within a period of 25 years from its acquisition, pursuant to the condition annotated at
the back of the title;7 that Narcisa, as natural guardian of her children, had no authority to sell the
northern half portion of the property which she and her children co-owned; and that only P5,000.00 out
of the consideration of P10,500.00 was paid by Tomas.

In their answer, petitioners countered that Narcisa owned 9/14 of the property, consisting of as her
share in the conjugal partnership with her first husband and 1/7 as her share in the estate of her
deceased husband; that the consideration of the sale in the amount of P10,500.00 had been fully paid as
of April 1, 1968; that Narcisa sold her conjugal share in order to support her minor children; that
Narcisas claim was barred by laches and prescription; and that the Philippine Homesite and Housing
Corporation, not the respondents, was the real party in interest to question the sale within the
prohibited period.

On April 2, 1997, the court a quo8 dismissed the complaint. It found that the sale was valid; that
the Agreement to Purchase and Sale and the Deed of Absolute Sale were duly executed; that the sum of
P10,500.00 as selling price for the subject property was fully paid there being no demand for the
payment of the remaining balance; that the introduction of improvements thereon by the petitioners
was without objection from the respondents; and that Roberto and Erlinda failed to contest the
transaction within four years after the discovery of the alleged fraud and reaching the majority age in
violation of Article 1391 of the Civil Code.9 ςrνll

Petitioners appealed the decision to the Court of Appeals, where it was docketed as CA-G.R. CV No.
56843. On October 3, 2002, a decision10 was rendered by the Court of Appeals declaring that
respondents were co-owners of the subject property, thus the sale was valid only insofar as Narcisas 1/7
undivided share thereon was concerned. The dispositive portion of the said decision
reads:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

WHEREFORE, the appealed Decision is AFFIRMED, with the MODIFICATION that the sale in dispute is
declared valid only with respect to the one-seventh (1/7) share of plaintiff-appellant NARCISA H. PRADO
in the subject property, which is equivalent to 78.8857 square meters. In all other respects, the same
decision stands. No pronouncement as to costs.

SO ORDERED.11 ςrνll

Petitioner filed a motion for reconsideration which was denied in a Resolution dated January 14,
2003.12 Hence this Petition for Review on the following assigned errors:

THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE
DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THAT,
ASIDE FROM THE DECLARATION OF THE VALIDITY OF THE SALE, THE PETITIONERS HEREIN HAVE TAKEN
ACTUAL POSSESSION OF THE SAID ONE-HALF (1/2) TO THE EXCLUSION OF THE RESPONDENTS AND
INTRODUCED IMPROVEMENTS THEREON.

II

THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN MODIFYING THE
DECISION RENDERED BY THE REGIONAL TRIAL COURT WITHOUT TAKING INTO CONSIDERATION THE
CLEAR AND UNEQUIVOCAL STATEMENT IN THE SALE THAT THE SAME PERTAINS TO THE CONJUGAL
SHARE OF RESPONDENT NARCISA PRADO AND THE OTHER RESPONDENTS HAD NO FINANCIAL CAPACITY
TO ACQUIRE THE SAID PROPERTY SINCE THEY WERE MINORS THEN AT THE ISSUANCE OF THE SAID TCT
NO. 71344 ON AUGUST 15, 1963.

460
III

THE HONORABLE COURT OF APPEALS COMMITTED A GRAVE ABUSE OF DISCRETION IN NOT DECLARING
THE HEREIN RESPONDENTS GUILTY OF LACHES IN FILING THE INSTANT CASE ONLY ON APRIL 8, 1991,
THAT IS 18 YEARS AFTER THE SAID SALE WITH THE PETITIONERS TAKING ACTUAL POSSESSION OF SAID
PORTION OF THE PROPERTY.

IV

THAT THE DECISION OF THE HON. COURT OF APPEALS WILL UNDULY ENRICH THE RESPONDENTS AT THE
EXPENSE OF THE HEREIN PETITIONERS.13 ςrνll

At the outset, it must be stressed that only questions of law may be raised in petitions for review before
this Court under Rule 45 of the Rules of Court.14 It was thus error for petitioners to ascribe to the Court
of Appeals grave abuse of discretion. This procedural lapse notwithstanding, in the interest of justice,
this Court shall treat the issues as cases of reversible error.15 ςrνll

The issues for resolution are: (1) Is the subject property conjugal or paraphernal? (2) Is the transaction a
sale or a mortgage? (3) Assuming that the transaction is a sale, what was the area of the land subject of
the sale?chanroblesvirtualawlibrary

Article 160 of the Civil Code, which was in effect at the time the sale was entered into, provides that all
property of the marriage is presumed to belong to the conjugal partnership unless it is proved that it
pertains exclusively to the husband or to the wife.Proof of acquisition during the marriage is a
condition sine qua non in order for the presumption in favor of conjugal ownership to operate.16 ςrνll

In the instant case, while Narcisa testified during cross-examination that she bought the subject
property from Peoples Homesite Housing Corporation with her own funds,17 she, however admitted in
the Agreement of Purchase and Sale and the Deed of Absolute Sale that the property was her conjugal
share with her first husband, Patricio, Sr.18 A verbal assertion that she bought the land with her own
funds is inadmissible to qualify the terms of a written agreement under the parole evidence rule.19 The
so-called parole evidence rule forbids any addition to or contradiction of the terms of a written
instrument by testimony or other evidence purporting to show that, at or before the execution of the
parties written agreement, other or different terms were agreed upon by the parties, varying the
purport of the written contract. Whatever is not found in the writing is understood to have been waived
and abandoned.20 ςrνll

Anent the second issue, the Deed of Absolute Sale executed by Narcisa in favor of Tomas is contained in
a notarized21 document. In Spouses Alfarero, et al. v. Spouses Sevilla, et al. ,22 it was held that a public
document executed and attested through the intervention of a notary public is evidence of the facts in a
clear, unequivocal manner therein expressed. Otherwise stated, public or notarial documents, or those
instruments duly acknowledged or proved and certified as provided by law, may be presented in
evidence without further proof, the certificate of acknowledgment being prima facie evidence of the
execution of the instrument or document involved. In order to contradict the presumption of regularity
of a public document, evidence must be clear, convincing, and more than merely preponderant.

It is well-settled that in civil cases, the party that alleges a fact has the burden of proving it.23 Except for
the bare allegation that the transaction was one of mortgage and not of sale, respondents failed to
adduce evidence in support thereof. Respondents also failed to controvert the presumption that private
transactions have been fair and regular.24 ςrνll

Furthermore, Narcisa, in fact did not deny that she executed an Affidavit allowing spouses Wilfredo and
Flordeliza Flora to construct a firewall between the two-storey duplex and her house sometime in 1976.
The duplex was made of strong materials, the roofing being galvanized sheets. While the deed of sale
between Tomas and Narcisa was never registered nor annotated on the title, respondents had
knowledge of the possession of petitioners of the northern half portion of the property. Obviously,
respondents recognized the ownership of Tomas, petitioners predecessor-in-interest.

461
Respondents belatedly claimed that only P5,000.00 out of the P10,500.00 consideration was paid. Both
the Agreement of Purchase and Sale and the Deed of Absolute Sale state that said consideration was
paid in full. Moreover, the presumption is that there was sufficient consideration for a written
contract.25 ςrνll

The property being conjugal, upon the death of Patricio Prado, Sr., one-half of the subject property was
automatically reserved to the surviving spouse, Narcisa, as her share in the conjugal partnership.
Particios rights to the other half, in turn, were transmitted upon his death to his heirs, which includes his
widow Narcisa, who is entitled to the same share as that of each of the legitimate children. Thus, as a
result of the death of Patricio, a regime of co-ownership arose between Narcisa and the other heirs in
relation to the property. The remaining one-half was transmitted to his heirs by intestate succession. By
the law on intestate succession, his six children and Narcisa Prado inherited the same at one-seventh
(1/7) each pro indiviso.26 Inasmuch as Narcisa inherited one-seventh (1/7) of her husband's conjugal
share in the said property and is the owner of one-half (1/2) thereof as her conjugal share, she owns a
total of 9/14 of the subject property. Hence, Narcisa could validly convey her total undivided share in
the entire property to Tomas. Narcisa and her children are deemed co-owners of the subject property.

Neither can the respondents invoke the proscription of encumbering the property within 25 years from
acquisition. In Sarmiento, et al. v. Salud, et al.,27 it was held that:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

xxx The condition that the appellees Sarmiento spouses could not resell the property except to the
Peoples Homesite and Housing Corporation (PHHC for short) within the next 25 years after appellees
purchasing the lot is manifestly a condition in favor of the PHHC, and not one in favor of the Sarmiento
spouses. The condition conferred no actionable right on appellees herein, since it operated as a
restriction upon their jus disponendi of the property they bought, and thus limited their right of
ownership. It follows that on the assumption that the mortgage to appellee Salud and the foreclosure
sale violated the condition in the Sarmiento contract, only the PHHC was entitled to invoke the
condition aforementioned, and not the Sarmientos. The validity or invalidity of the sheriff's foreclosure
sale to appellant Salud thus depended exclusively on the PHHC; the latter could attack the sale as
violative of its right of exclusive reacquisition; but it (PHHC) also could waive the condition and treat the
sale as good, in which event, the sale can not be assailed for breach of the condition aforestated.

Finally, no particular portion of the property could be identified as yet and delineated as the object of
the sale considering that the property had not yet been partitioned in accordance with the Rules of
Court.28 While Narcisa could validly sell one half of the subject property, her share being 9/14 of the
same, she could not have particularly conveyed the northern portion thereof before the partition, the
terms of which was still to be determined by the parties before the trial court.

WHEREFORE, the Decision of the Court of Appeals on October 3, 2002, as well as the Resolution dated
January 14, 2003 is PARTLY AFFIRMED subject to the following MODIFICATIONS:

1) Narcisa Prado is entitled to 9/14 of the residential land consisting of 552.20 square meters, more or
less, situated at 19th Avenue, Murphy, Quezon City and covered by Transfer Certificate of Title No.
71344;

2) the sale of the undivided one half portion thereof by Narcisa Prado in favor of Tomas Calpatura, Sr. is
valid.

Furthermore, the case is REMANDED to the court of origin, only for the purpose of determining the
specific portion being conveyed in favor of Tomas Calpatura, Sr. pursuant to the partition that will be
agreed upon by the Respondents.

SO ORDERED.

Davide, Jr., C.J., Panganiban, Carpio, and Azcuna, JJ., concur.

G.R. No. 96405 June 26, 1996

462
BALDOMERO INCIONG, JR., petitioner,
vs.
COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents.

ROMERO, J.:p

This is a petition for review on certiorari of the decision of the Court of Appeals affirming that of the
Regional Trial Court of Misamis Oriental, Branch 18,1 which disposed of Civil Case No. 10507 for
collection of a sum of money and damages, as follows:

WHEREFORE, defendant BALDOMERO L. INCIONG, JR. is adjudged solidarily liable and

ordered to pay to the plaintiff Philippine Bank of Communications, Cagayan de Oro City,
the amount of FIFTY THOUSAND PESOS (P50,000.00), with interest thereon from May 5,
1983 at 16% per annum until fully paid; and 6% per annum on the total amount due, as
liquidated damages or penalty from May 5, 1983 until fully paid; plus 10% of the total
amount due for expenses of litigation and attorney's fees; and to pay the costs.

The counterclaim, as well as the cross claim, are dismissed for lack of merit.

SO ORDERED.

Petitioner's liability resulted from the promissory note in the amount of P50,000.00 which he signed
with Rene C. Naybe and Gregorio D. Pantanosas on February 3, 1983, holding themselves jointly and
severally liable to private respondent Philippine Bank of Communications, Cagayan de Oro City branch.
The promissory note was due on May 5, 1983.

Said due date expired without the promissors having paid their obligation. Consequently, on November
14, 1983 and on June 8, 1984, private respondent sent petitioner telegrams demanding payment
thereof.2 On December 11, 1984 private respondent also sent by registered mail a final letter of demand
to Rene C. Naybe. Since both obligors did not respond to the demands made, private respondent filed
on January 24, 1986 a complaint for collection of the sum of P50,000.00 against the three obligors.

On November 25, 1986, the complaint was dismissed for failure of the plaintiff to prosecute the case.
However, on January 9, 1987, the lower court reconsidered the dismissal order and required the sheriff
to serve the summonses. On January 27, 1987, the lower court dismissed the case against defendant
Pantanosas as prayed for by the private respondent herein. Meanwhile, only the summons addressed to
petitioner was served as the sheriff learned that defendant Naybe had gone to Saudi Arabia.

In his answer, petitioner alleged that sometime in January 1983, he was approached by his friend, Rudy
Campos, who told him that he was a partner of Pio Tio, the branch manager of private respondent in
Cagayan de Oro City, in the falcata logs operation business. Campos also intimated to him that Rene C.
Naybe was interested in the business and would contribute a chainsaw to the venture. He added that,
although Naybe had no money to buy the equipment, Pio Tio had assured Naybe of the approval of a
loan he would make with private respondent. Campos then persuaded petitioner to act as a "co-maker"
in the said loan. Petitioner allegedly acceded but with the understanding that he would only be a co-
maker for the loan of P50,000.00.

Petitioner alleged further that five (5) copies of a blank promissory note were brought to him by Campos
at his office. He affixed his signature thereto but in one copy, he indicated that he bound himself only
for the amount of P5,000.00. Thus, it was by trickery, fraud and misrepresentation that he was made
liable for the amount of P50,000.00.

In the aforementioned decision of the lower court, it noted that the typewritten figure "-- 50,000 --"
clearly appears directly below the admitted signature of the petitioner in the promissory note. 3 Hence,
the latter's uncorroborated testimony on his limited liability cannot prevail over the presumed regularity
and fairness of the transaction, under Sec. 5 (q) of Rule 131. The lower court added that it was "rather

463
odd" for petitioner to have indicated in a copy and not in the original, of the promissory note, his
supposed obligation in the amount of P5,000.00 only. Finally, the lower court held that, even granting
that said limited amount had actually been agreed upon, the same would have been merely collateral
between him and Naybe and, therefore, not binding upon the private respondent as creditor-bank.

The lower court also noted that petitioner was a holder of a Bachelor of Laws degree and a labor
consultant who was supposed to take due care of his concerns, and that, on the witness stand, Pio Tio
denied having participated in the alleged business venture although he knew for a fact that the falcata
logs operation was encouraged by the bank for its export potential.

Petitioner appealed the said decision to the Court of Appeals which, in its decision of August 31, 1990,
affirmed that of the lower court. His motion for reconsideration of the said decision having been denied,
he filed the instant petition for review on certiorari.

On February 6, 1991, the Court denied the petition for failure of petitioner to comply with the Rules of
Court and paragraph 2 of Circular
No. 1-88, and to sufficiently show that respondent court had committed any reversible error in its
questioned decision.4 His motion for the reconsideration of the denial of his petition was likewise denied
with finality in the Resolution of April 24, 1991.5 Thereafter, petitioner filed a motion for leave to file a
second motion for reconsideration which, in the Resolution of May 27, 1991, the Court denied. In the
same Resolution, the Court ordered the entry of judgment in this case.6

Unfazed, petitioner filed a notion for leave to file a motion for clarification. In the latter motion, he
asserted that he had attached Registry Receipt No. 3268 to page 14 of the petition in compliance with
Circular No. 1-88. Thus, on August 7, 1991, the Court granted his prayer that his petition be given due
course and reinstated the same.7

Nonetheless, we find the petition unmeritorious.

Annexed to the petition is a copy of an affidavit executed on May 3, 1988, or after the rendition of the
decision of the lower court, by Gregorio Pantanosas, Jr., an MTCC judge and petitioner's co-maker in the
promissory note. It supports petitioner's allegation that they were induced to sign the promissory note
on the belief that it was only for P5,000.00, adding that it was Campos who caused the amount of the
loan to be increased to P50,000.00.

The affidavit is clearly intended to buttress petitioner's contention in the instant petition that the Court
of Appeals should have declared the promissory note null and void on the following grounds: (a) the
promissory note was signed in the office of Judge Pantanosas, outside the premises of the bank; (b) the
loan was incurred for the purpose of buying a second-hand chainsaw which cost only P5,000.00; (c) even
a new chainsaw would cost only P27,500.00; (d) the loan was not approved by the board or credit
committee which was the practice, as it exceeded P5,000.00; (e) the loan had no collateral; (f) petitioner
and Judge Pantanosas were not present at the time the loan was released in contravention of the bank
practice, and (g) notices of default are sent simultaneously and separately but no notice was validly sent
to him.8 Finally, petitioner contends that in signing the promissory note, his consent was vitiated by
fraud as, contrary to their agreement that the loan was only for the amount of P5,000.00, the
promissory note stated the amount of P50,000.00.

The above-stated points are clearly factual. Petitioner is to be reminded of the basic rule that this Court
is not a trier of facts. Having lost the chance to fully ventilate his factual claims below, petitioner may no
longer be accorded the same opportunity in the absence of grave abuse of discretion on the part of the
court below. Had he presented Judge Pantanosas affidavit before the lower court, it would have
strengthened his claim that the promissory note did not reflect the correct amount of the loan.

Nor is there merit in petitioner's assertion that since the promissory note "is not a public deed with the
formalities prescribed by law but . . . a mere commercial paper which does not bear the signature of . . .
attesting witnesses," parol evidence may "overcome" the contents of the promissory note.9 The first
paragraph of the parol evidence rule 10 states:

464
 When the terms of an agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the parties and their
successors in interest, no evidence of such terms other than the contents of the written
agreement.

Clearly, the rule does not specify that the written agreement be a public document.

What is required is that the agreement be in writing as the rule is in fact founded on "long experience
that written evidence is so much more certain and accurate than that which rests in fleeting memory
only, that it would be unsafe, when parties have expressed the terms of their contract in writing, to
admit weaker evidence to control and vary the stronger and to show that the
parties intended a different contract from that expressed in the writing signed by them." 11 Thus, for the
parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both
parties. 12 As a general rule, bills, notes and other instruments of a similar nature are not subject to be
varied or contradicted by parol or extrinsic evidence. 13

By alleging fraud in his answer, 14 petitioner was actually in the right direction towards proving that he
and his co-makers agreed to a loan of P5,000.00 only considering that, where a parol contemporaneous
agreement was the inducing and moving cause of the written contract, it may be shown by parol
evidence. 15 However, fraud must be established by clear and convincing evidence, mere preponderance
of evidence, not even being adequate. 16 Petitioner's attempt to prove fraud must, therefore, fail as it
was evidenced only by his own uncorroborated and, expectedly, self-serving testimony.

Petitioner also argues that the dismissal of the complaint against Naybe, the principal debtor, and
against Pantanosas, his co-maker, constituted a release of his obligation, especially because the
dismissal of the case against Pantanosas was upon the motion of private respondent itself. He cites as
basis for his argument, Article 2080 of the Civil Code which provides that:

The guarantors, even though they be solidary, are released from their obligation
whenever by some act of the creditor, they cannot be subrogated to the rights,
mortgages, and preferences of the latter.

It is to be noted, however, that petitioner signed the promissory note as a solidary co-maker and not as
a guarantor. This is patent even from the first sentence of the promissory note which states as follows:

Ninety one (91) days after date, for value received, I/we, JOINTLY and SEVERALLY
promise to pay to the PHILIPPINE BANK OF COMMUNICATIONS at its office in the City of
Cagayan de Oro, Philippines the sum of FIFTY THOUSAND ONLY (P50,000.00) Pesos,
Philippine Currency, together with interest . . . at the rate of SIXTEEN (16) per cent per
annum until fully paid.

A solidary or joint and several obligation is one in which each debtor is liable for the entire obligation,
and each creditor is entitled to demand the whole obligation. 17 on the other hand, Article 2047 of the
Civil Code states:

By guaranty a person, called the guarantor, binds himself to the creditor to fulfill the
obligation of the principal debtor in case the latter should fail to do so.

If a person binds himself solidarily with the principal debtor, the provisions of Section 4,
Chapter 3, Title I of this Book shall be observed. In such a case the contract is called a
suretyship. (Emphasis supplied.)

While a guarantor may bind himself solidarily with the principal debtor, the liability of a
guarantor is different from that of a solidary debtor. Thus, Tolentino explains:

A guarantor who binds himself in solidum with the principal debtor under the provisions
of the second paragraph does not become a solidary co-debtor to all intents and
purposes. There is a difference between a solidary co-debtor and a fiador in

465
 solidum (surety). The latter, outside of the liability he assumes to pay the debt before
the property of the principal debtor has been exhausted, retains all the other rights,
actions and benefits which pertain to him by reason of the fiansa; while a solidary co-
debtor has no other rights than those bestowed upon him in Section 4, Chapter 3, Title I,
Book IV of the Civil Code. 18

Section 4, Chapter 3, Title I, Book IV of the Civil Code states the law on joint and several obligations.
Under Art. 1207 thereof, when there are two or more debtors in one and the same obligation, the
presumption is that the obligation is joint so that each of the debtors is liable only for a proportionate
part of the debt. There is a solidary liability only when the obligation expressly so states, when the law
so provides or when the nature of the obligation so requires. 19

Because the promissory note involved in this case expressly states that the three signatories therein
are jointly and severally liable, any one, some or all of them may be proceeded against for the entire
obligation. 20 The choice is left to the solidary creditor to determine against whom he will enforce
collection. 21 Consequently, the dismissal of the case against Judge Pontanosas may not be deemed as
having discharged petitioner from liability as well. As regards Naybe, suffice it to say that the court never
acquired jurisdiction over him. Petitioner, therefore, may only have recourse against his co-makers, as
provided by law.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED and the questioned decision
of the Court of Appeals is AFFIRMED. Costs against petitioner.

SO ORDERED.

Regalado, Puno, Mendoza and Torres, Jr., JJ., concur.

[G.R. No. 66394. February 5, 1990.]

PARADISE SAUNA, MASSAGE CORPORATION AND JUANITO UY, Plaintiff-Appellee, v. ALEJANDRO NG

AND THE INTERMEDIATE APPELLATE COURT, Defendants-Appellants.

Augusto J. Salas for Plaintiff-Appellee.

Armando Marcelo, for Defendant-Appellant.

DECISION

GUTIERREZ, JR., J.:

Whether or not the contract between the petitioners and the private respondent is a lease or a
management contract is the issue in this petition for review. The petitioners assail the decision of the
then Intermediate Appellate Court in AC-GR CV No. 65264 which affirmed in toto the judgment of the
Court of First Instance of Manila, Branch XII declaring the said contract as one of lease.

The disputed letter-contract signed by petitioner Juanito Uy in his capacity as President of the petitioner
corporation reads:jgc:chanrobles.com.ph

"Mr. Alejandro Ng

No. 8-A Boston Street

Quezon City

Dear Mr. Ng,

466
By authority of the Board of Directors, you are hereby appointed to MANAGE and ADMINISTER the
PARADISE SAUNA and MASSAGE CORPORATION effective January 1, 1976, under a commission basis
over and above the amount of EIGHT THOUSAND PESOS (P8,000.00) which should be remitted to us not
later than the first five (5) days of each month starting January 1, 1976.

In addition, you are to fulfill the following terms and conditions:chanrob1es virtual 1aw library

1. You are to remit the amount of Sixteen Thousand Pesos (P16,000.00) immediately after accepting this
appointment as a guarantee bond for the faithful performance of your duties and responsibilities.
However, this amount shall be returned to you after the duration of your appointment which will be up
to September 30, 1979. Otherwise, it will be forfeited if you do not comply with all your duties and
responsibilities.

2. Further, all government licenses, permits, utilities and services in the premises such as water, gas,
electricity, telephone, additional air conditioning units and the installation and repairs thereof and all
other repairs therein during your management shall be for your account;

3. The sole control and management of the premises shall belong to you and you are not responsible to
Anybody nor to Any Board of Directors except to me alone;

4. You are empowered to make any renovation, repairs and improvements but expenses shall be for
your account as well as to change or add personnels therein;

5. Please take all good care of all the equipment and facilities presently existing therein and see to it that
they are always in good working condition; Otherwise, the loss and damage on any of this equipment
and facilities shall be borne by you;

6. In case, however, that you will not be in a position to continue Managing and Administering the
business profitably due to any Government Rules, Decree or Regulations or Force Majeure, this
appointment shall be suspended for a period of 3 months for the purpose of determining whether or
not you can still continue managing the same.

Hoping that you find the same satisfactory and good luck.

(Sgd) JUANITO A. UY

President/Director" (Rollo, p. 135)

This case arose from the petitioners’ act of allegedly terminating the respondent’s appointment as
manager-administrator as a result of his alleged failure to comply with the terms and conditions of his
appointment. The termination took effect on January 15, 1977.

Private respondent Ng, on January 21, 1977 filed with the Court of First Instance of Manila, Branch XII, a
case for specific performance and damages with prayer for a writ of preliminary mandatory injunction
and attorney’s fees against the petitioner. The case was docketed as Civil Case No. 106511.

On January 28, 1977, the private respondent amended his complaint to one for breach of contract with
damages with the same prayer for a writ of preliminary injunction and attorney’s fees.

The amended complaint alleged, among others, that on December 30, 1975, the petitioners agreed to
lease in favor of the private respondent their business called "Paradise Sauna and Massage Corporation"
located at E. Rodriguez, Sr. Avenue, Quezon City and that they entered into a contract whereby the
latter shall have full control and management of the said business effective January 1, 1976 until
September 30, 1979; that as lessee of the said business with full and sole control thereof, private
respondent’s principal obligation consists of only paying the petitioners the sum of eight thousand pesos
(P8,000.00) not later than the first five (5) days of each month as rentals and remitting to the latter the
sum of sixteen thousand pesos (P16,000.00) as guarantee bond; that as such lessee, the private

467
respondent assumed control and management of the petitioner’s business on January 1, 1976, hired
and paid personnel to beef up its operations and tried religiously to comply with his obligations like
paying for his account all government licenses, permits, utilities and services in the premises such as
water, gas, electricity and telephone; that the private respondent paid all the monthly rentals due the
petitioners until December 1976; that the petitioner refused to accept the rental for January 1977 and
asked the private respondent to vacate and leave the premises instead thereby terminating his services
and forfeiting his guarantee bond of sixteen thousand pesos (P16,000.00); that on January 16, 1977, the
petitioners, assisted by Metrocom soldiers, entered the private respondent’s office and through
intimidations, forcibly ejected him from the premises, assumed full control and supervision of the
business and put another person in his place who immediately took possession of all cash sales for the
day; that the private respondent returned to the business premises the following day but he was
refused entry and there was a notice to all the employees in front of the premises signed by the
petitioners to the effect that the private respondent’s services had been terminated and that another
person had been appointed to take his place; that for having breached their contract, the private
respondent suffered damages in the amount of not less than P100,000.00 representing unrealized
profits from the operation of the business, forfeiture of the guarantee bond and value of his personal
properties placed in the business which the petitioners appropriated to themselves; that the private
respondent shall prove further actual damages in the course of the trial resulting from the petitioners’
failure to reinstate the former immediately; and that the private respondent is entitled to moral
damages in the amount of P50,000.00 and attorney’s fees in the amount of P30,000.00.chanrobles
virtual lawlibrary

In their answer, the petitioners counter-alleged, among others, that the petitioner corporation is the
operator of the sauna bath and massage establishment in question, that petitioner Uy was the former
manager and administrator of the said establishment which was then fully equipped and staffed with
more than thirty (30) personnel consisting of hospitality attendants and boy-helpers; that the petitioner
corporation is paying P4,000.00 as lease rentals for the premises occupied by it, that in his capacity as
President-Director of the petitioner corporation and in his desire to expand the operations of the same,
petitioner Uy relinquished his position as manager-administrator of the said establishment in favor of
the private respondent as evidenced by the letter dated December 30, 1975 addressed to the latter;
that private respondent’s appointment as manager-administrator was terminated on January 15, 1977
for violations of the terms and conditions of his appointment, namely, failure to pay water and electric
bills, failure to pay the salaries of the employees of the petitioner corporation, failure to supply the
provisions necessary for the conduct of the petitioners’ sauna and massage business like lotion, towels
and blankets, failure to perform efficiently as manager-administrator of the petitioner corporation by
managing the Rajah Sauna Bath in Ermita, Manila simultaneously with his management of the petitioner
corporation and by inducing the petitioners’ customers to patronize the said Rajah Sauna Bath instead
of the petitioner corporation.

After trial, the lower court, on December 23, 1978 rendered judgment in favor of the private respondent
with the following dispositive portion:jgc:chanrobles.com.ph

"IN VIEW OF THE FOREGOING CONSIDERATIONS, the Court hereby renders judgment:chanrob1es virtual
1aw library

(a) declaring the letter-contract, Exhibit A, as a contract of lease covering the paradise sauna bath and
massage clinic, and not a contract of employment;

(b) directing defendants to forthwith return the management and operation of the paradise sauna bath
and massage clinic to the plaintiff, so that plaintiff can operate and manage the same for the unexpired
term of the lease of Two (2) Years, Eight (8) Months and Fifteen (15) days;

(c) declaring the forfeiture by defendants of the plaintiff’s deposit of P16,000.00 as null and void and
declaring it as subsisting for the purpose of which it was put up by plaintiff, if Exhibit A is made to
continue, as decreed in par. (b) hereof, otherwise, if or for any reason Exhibit A can not continue to be in
force, directing defendants to jointly and severally pay to plaintiff the said sum of P16,000.00.;

(d) directing the defendants to account for and return to the plaintiff all the articles listed in Exhibit R,

468
consisting of pages 1, 2 and 3, or in default thereof, to jointly and severally pay to the plaintiff in the
following manner and in the following amount, as far as it is practicable, to wit:chanrob1es virtual 1aw
library

(1) P4,650.00 for the cost of two television (sic) and the refrigerator, with an allowance of 30% for
depreciation costs, with interest thereon at the legal rate from date of this decision until it is fully paid;

(2) P11,540.30 — Cost price of certain items listed in page 1 of Exhibit R as recited elsewhere in the body
of this decision, with interest thereon at the legal rate from the date of this decision until it is fully
paid;cralawnad

(e) directing the defendants to account for and to return to the plaintiff one rice cooker, one gas lantern,
one medicine cabinet with assorted medicines, one Akai Tape Recorder, Sixteen glass tumblers, five
coffee cups, four intercom, two telephone hands (sic), one Video, one color vibrator, eight drawerlocks,
one electric fan with stand, one steel cabinet with lock, 40 pieces nameplates with pictures, 30 cans
Acaho, and two speakers with cabinet, all of which are listed on page 1 of Exhibit R, and in default of
such delivery, directing defendants to pay jointly and severally the reasonable value thereof taking into
consideration the present costs of such items, with allowances of at least thirty per cent for their
depreciation costs, with interests thereon at 6% per annum from date of this decision until it is fully
paid;

(f) directing defendants to account for and return to plaintiffs all the articles listed in page 2 of Exhibit R,
or in default thereof, directing defendants to pay jointly and severally to plaintiff the sum of P1,313.42,
with interest thereon at 6% per annum from the date of this decision, until it is fully paid;

(g) directing the defendants to account for and return to plaintiff all of Items 1 to 17 listed on page 2 of
Exh. R, or in default thereof, to pay jointly and severally the plaintiff the sum of P2,968.03, with interest
thereon of 6% per annum from date of this decision until it is fully paid;

(h) directing the defendants to account for and return to plaintiff all of the last six items listed on page 2
of Exhibit R, or in default thereof, to pay jointly and severally the plaintiff the total costs of P7,999.55,
with an allowance of 30% for their depreciation costs, and with interest thereon at 6% per annum until it
is fully paid;

(i) directing the defendants to account for and return to plaintiff all the articles listed on page 3 of
Exhibit R, or in default thereof, to jointly and severally pay to the plaintiff the cost price of P1,313.43,
with interest thereon at the legal rate from date of this decision until it is fully paid;

(j) directing the defendants to pay jointly and severally to the plaintiff the sums of P50,000.00 as more
damages and P50,000 as exemplary damages;

(k) directing the plaintiff to pay defendants the sum of P28,572.45, with legal interest thereon from date
of this decision until it is fully paid. This sum shall be set off and made to reduce plaintiff’s entitlement as
awarded by this Court;

(l) dismissing all other claims which the parties have against each other for lack of merit;

Costs against defendants." (Pp. 111 to 114, Record on Appeal). (At pp. 24-27, Rollo)

On appeal, the then Intermediate Appellate Court, on November 29, 1983, affirmed in toto the decision
of the trial court. The subsequent motion for reconsideration by the petitioners was denied. Hence, this
petition which presents three main arguments.

Firstly, the petitioners contend that the respondent Court sanctioned a legal error made by the trial
court which is the reformation of Exhibit A from a management contract to a lease contract contrary to
Art. 1367 of the New Civil Code. In support of their contention, they averred that when respondent Ng
filed an action for specific performance then for breach of contract later, he should have been presumed
to have admitted the due execution and contents of the letter-contract marked as Exhibit A whereby he

469
was appointed as manager-administrator of the petitioner corporation and he should never have been
allowed to deny the contents thereof for purposes of reforming the said instrument.

Article 1367 of the Civil Code states that:jgc:chanrobles.com.ph

"Article 1367 — When one of the parties has brought an action to enforce the instrument, he cannot
subsequently ask for its reformation."cralaw virtua1aw library

The above quoted provision of law invoked by the petitioners cannot apply to respondent Ng’s case.
When Ng amended his original complaint for specific performance which calls for an enforcement of
Exhibit A to one for breach of contract, he did so as a matter of right since no responsive pleading had
been filed yet by the petitioners. The original complaint was filed on January 21, 1977 and was amended
on January 28, 1977. The answer of the petitioners to the original complaint was filed only on February 4,
1977. Under Section 2, Rule 10 of the Revised Rules of Court, "a party may amend his pleading once as a
matter of course at any time before a responsive pleading is served . . . ." When a pleading is amended,
the original one is deemed abandoned. Hence, the amended pleading replaces the original one which no
longer forms part of the record and the trial of the case is made on the basis of the amended pleading
only (see Ruymann and Farris v. Director of Lands Et. Al., 34 Phil. 428 [1916]). In the case at bar,
respondent Ng, in his amended complaint brought an action for breach of contract not to enforce his
rights as manager-administrator but as lessee of the petitioner corporation. In the course of the trial,
parol evidence was introduced to prove that the contract in question was not a management contract as
it appeared on its face but a lease contract.

Rule 130, Sec. 7 of the Revised Rules of Court provides that:jgc:chanrobles.com.ph

"SEC. 7. Evidence of written agreements. — When the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and, therefore, there can be, between the
parties and their successors-in-interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases.

(a) Where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of the parties, or the validity of the agreement is put in issue by the pleadings;

(b) When there is an intrinsic ambiguity in the writing.

The term "agreement" includes wills. (Emphasis supplied)

In the instant case, the failure of a contract to express the true intent and agreement of the parties is
raised. The fact that the allegations of respondent Ng with respect to his rights as lessee of the
petitioner corporation were made on the basis of Exhibit A which was marked as Annex "A" in the
amended complaint meets the procedural requirement that said failure be put in issue by the pleadings.

In ruling that the subject contract is a lease contract and not a management contract, we adopt the
findings of fact made by the trial court and affirmed by the respondent court.

The claim of the petitioners that respondent Ng is their manager-administrator is untenable since it fails
to pass the control test pertinent to the existence of an employer-employee relationship. The control
test asks whether the employer controls or has reserved the right to control the employee not only as to
the result of the work but also as to the means and methods by which the said work is to be
accomplished (Social Security System v. Court of Appeals, 156 SCRA 383 [1987]). Such control by the
petitioners over respondent Ng is lacking. Exhibit A is in the nature of a lease contract under Art. 1643 of
the Civil Code which states that:jgc:chanrobles.com.ph

"Art. 1643. In the lease of things, one of the parties binds himself to give to another the enjoyment or
use of a thing for a price certain, and for a period which may be definite or indefinite. However, no lease
for more than ninety-nine (99) years shall be valid."cralaw virtua1aw library

We find no reason to disturb the findings of the two courts below that the disputed contract is a lease

470
contract. The reasons given are:chanrob1es virtual 1aw library

(1) The respondent paid the petitioners a fixed P8,000.00 monthly even when the business suffers a loss.
The P8,000.00 was paid at the start of the month with no attention paid to operating expenses, profits,
and losses.

(2) The monthly receipts received by the petitioners from Alejandro Ng state that they were given for
rentals from January to October 1976. The receipts for November and December substitute the word
"commission" for "rental." The respondent explained the change by stating that petitioner Uy changed
the receipt as he realized that subleasing the premises to Ng was a violation of the contract with the
owner and the latter might discover the violation. The receipts were prepared by the petitioners but
signed in the presence of the respondent when payment was made.

(3) The respondent was responsible for all licenses, permits, utilities and services, including the
installation and repair of all equipment such as airconditioning units. He had sole control and
management and did not report to anybody.

Anent the argument that the respondent Court, in holding petitioner Uy severally liable with the
petitioner corporation, departed from the rule that a stockholder or officer of a corporation has a
personality distinct from the corporation, we hold that the corporate entity theory cannot apply in the
instant case where it is being invoked as a cloak or shield for illegality. (see Tan Boon Bee & Co., Inc. v.
Judge Jarencio, 163 SCRA 205 [1988]). There is proof obtaining in the case at bar as to the real nature of
Exhibit A. Thus, being a party to a simulated contract of management, petitioner Uy cannot be
permitted to escape liability under the said contract by using the corporate entity theory. This is one
instance when the veil of corporate entity has to be pierced to avoid injustice and inequity.

Lastly, the petitioners argue that the respondent Court’s award of moral and exemplary damages was
contrary to law as there was no showing of bad faith. In this case, the petitioners’ manner of barring
respondent Ng from his place of business with the use of Metrocom soldiers instead of availing of the
proper legal action constituted bad faith as contemplated by law considering that the petitioners were
aware of the real nature of the contract in question. The amount of P8,000.00 given monthly to the
petitioners was received as "rentals" and not as "commissions." Only the later receipts indicated that
the P8,000.00 was for payment of "commission" and respondent Ng explained that the change in the
phraseology of the receipts was due to the fact that petitioner Uy wanted them to be so written since
subleasing would constitute a violation of the latter’s contract with the owner of the business premises.
Moral damages are recoverable in cases of breach of contract where the defendant acted fraudulently
or in bad faith (Art. 2220, New Civil Code). Exemplary damages, as well may be awarded in contracts if
the defendant acted in a wanton, fraudulent, reckless, oppressive or malevolent manner (Art. 2232,
New Civil Code).

We feel, however, that the amount of moral and exemplary damages may be reduced considering the
circumstances of the case. Mr. Uy was unhappy about the continued life of the lease arrangement and
Mr. Ng was aware of this. In some instances, rental payments were not made promptly at the start of
the month. Three checks initially bounced. Damage to the central air conditioning system and other
equipment was not repaired. Mr. Ng also operated another massage and sauna parlor — The Rajah
Sauna Bath in Ermita — and Mr. Uy was convinced that personnel and customers of Paradise Sauna
were being enticed by the respondent to the other place thus eroding the goodwill and patronage of the
complaining establishment. All of these, however, mitigate but do not justify the acts accompanying the
termination of the contract.chanrobles.com.ph : virtual law library

WHEREFORE, IN VIEW OF THE FOREGOING, the instant petition is DISMISSED. The judgment appealed
from is AFFIRMED with the MODIFICATION that the award of moral and exemplary damages is hereby
reduced to a total of P20,000. The term of the lease having expired, the order to return the massage
clinic to the private respondent is DELETED.

SO ORDERED.

Fernan (C.J., Chairman), Feliciano and Cortes, JJ., concur.

471
G.R. No. 72121 February 6, 1991

RAFAEL PAGSUYUIN and PEREGRINA PAGSUYUIN-SUBIDO, petitioners,

vs.
INTERMEDIATE APPELLATE COURT and SALUD PAGSUYUIN, respondents.

R. G. Carlos & Associates Law Offices for petitioners.

Aurea Aragon-Casiano for private respondent.

PARAS, J.:

In this petition for review on certiorari, petitioners seek to reverse and set aside the decision1 of the
Intermediate Appellate Court (now Court of Appeals) dated June 6, 1985 in AC G.R. No. CV-67019
entitled "Salud Pagsuyuin vs. Rafael Pagsuyuin, et al." affirming with modification the
decision2 of the then Court of First Instance (now RTC) of Zambales, Branch I in Civil Case No. 2139-0
entitled "Salud Pagsuyuin v. Rafael Pagsuyuin et al." for annulment of document, damages with
preliminary injunction.

Records show that private respondent Salud Pagsuyuin and petitioners Peregrina Pagsuyuin-Subido and
Rafael Pagsuyuin are first cousins.

Sometime in August, 1974, one Mrs. Gregoria B. Schlander, then a resident of Olongapo City and an
acquaintance of private respondent Salud Pagsuyuin was able to secure a loan in the amount of
P165,000.00 with the Manila Banking Corporation at Olongapo City upon a security of a real estate
mortgage of property belonging to Salud Pagsuyuin consisting of two (2) two-storey buildings: the first
two-storey building has an area of 114 square meters and the second two-storey building has an area of
98 square meters, as well as the commercial lot (Lot 3114, TS-308, Olongapo Townsite Subdivision) with
an area of 339 square meters upon which these two (2) two-storey buildings are erected, which loan
was obtained by the said Mrs. Gregoria B. Schlander upon a forged power of attorney allegedly signed
by Salud Pagsuyuin (Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 6-7).

On December 1975, Salud Pagsuyuin was informed that her property had been mortgaged by Mrs.
Gregoria B. Schlander in favor of said bank and she immediately went to verify the accuracy of the
information which she found to be true, but then, Mrs. Schlander had already absconded and left for the
United States (Rollo, Ibid., p. 46).

As the loan indicated hereinabove was not paid at maturity, the Manila Banking Corporation at
Olongapo City started to foreclose the mortgaged properties extrajudicially (Rollo, Ibid., p.7).

To protect, her interest on her property, Salud Pagsuyuin filed suit in the Court of First Instance of
Olongapo City, Branch III, Civil Case No. 1918-0 against the Manila Banking Corporation, Mrs. Gregoria B.
Schlander and her husband Mr. Schlander, including the City Sheriff of Olongapo City, to annul the said
real estate mortgage with a prayer for preliminary injunction (Rollo, Ibid., p. 8).

Petitioners Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido, brother and sister and first cousins of
Salud Pagsuyuin, offered to the latter to settle the bank loan so as to keep her peace of mind and to
retain the ownership of her mortgaged properties (Rollo, Ibid., p. 47).

The three cousins, namely Peregrina, Rafael and Salud, went to the Manila Banking Corporation to
inquire about the possibility of an amicable settlement of the loan, and it was at this juncture that the
petitioners told Salud Pagsuyuin that they would help her in settling her mortgage loan if petitioner
Peregrina Pagsuyuin-Subido will stay free of charge in the leased premises and that Salud Pagsuyuin will
repay whatever amount will be advanced by the petitioners to Salud with interest (Rollo, Ibid., p. 48).

472
Consequently, two (2) documents were allegedly executed involving the transfer of the properties of
Salud Pagsuyuin to Peregrina Pagsuyuin-Subido and Rafael Pagsuyuin. These documents were:

1) Deed of Assignment (morning version) stating that Salud Pagsuyuin allegedly transferred her
properties for and in consideration of the amount of P256,362.95, and that the amount of
P30,000.00 will be delivered to Salud Pagsuyuin upon signing the instrument, which was
allegedly signed in the morning of September 13, 1976 (Rollo, Petition, pp. 13-16);

2) Deed of Assignment (afternoon version) stating that Salud Pagsuyuin allegedly transferred her
properties for and in consideration of the amount of P256,362.96 but there was no indication
that there will be a down payment of P30,000.00, which was allegedly signed in the afternoon of
September 13, 1976 (Rollo, Petition, pp. 1719).

The two (2) documents (Deeds of Assignment) were notarized by Notary Public Edmundo Tubio
allegedly on the 13th of September, 1976 in the presence of witnesses Marietta Javier and Federico
Javier (Rollo, Petition, pp. 16; 18).

Salud Pagsuyuin and her witnesses denied having executed the above deeds of assignment on
September 13, 1976 as she was on that date at Alitagtag, Batangas while her instrumental witnesses
Federico Javier was working at the U.S. Naval Base, while his wife Marietta Javier was at Olongapo City.

Consequently, on March 1, 1977, an amended complaint was filed by Salud Pagsuyuin before the Court
of First Instance of Zambales for the annulment of documents, damages with preliminary injunction,
alleging among others, that the signature of private respondent Salud Pagsuyuin and her witnesses,
namely; Marietta Pagsuyuin-Javier and Federico Javier in the Deeds of Assignment were obtained thru
fraud and trickery perpetrated by the petitioners Rafael Pagsuyuin and Peregrina Pagsuyuin-Subido
(Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 5-19).

On March 24, 1977, petitioners filed an answer claiming by way of special defense that it was the private
respondent Salud Pagsuyuin who proposed to the petitioners the transfer of all the properties covered
by a Real Estate Mortgage (Rollo, Annex "D", Amended Record on Appeal, p. 54; pp. 23-32).

On March 21, 1980, the trial court rendered its decision, the dispositive portion of which reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff (Salud) and against the
defendants (herein petitioners) as follows:

a) Declaring the Deeds of Assignment (Exhs. A and B) as null and void;

b) If there was payment of indebtedness in the amount of P226,362.96 to the Manila

Bank, the plaintiff is hereby directed to refund the same amount to the defendants with
legal interest;

c) Ordering all other payments made by the defendants offsetting the plaintiffs
indebtedness such as made to Felix Makalintal, Theodore Ilagan, and Irene de Leon,
refunded by the plaintiff to the defendants with legal interest;

d) Ordering defendants jointly and severally to pay plaintiff the amount of P20,000.00 as
moral damages and exemplary damages; and

e) Ordering defendants jointly and severally to pay the amount of P20,000.00 as

attorney's fees.

Defendants' counterclaim are hereby denied.

SO ORDERED. (Rollo, Annex "H"; Amended Record on Appeal, p. 54; pp. 69-70).

On Appeal, the Intermediate Appellate Court in its decision dated June 6, 1985, ruled:

473
 WHEREFORE, premises considered, the decision appealed from is affirmed but with the
modification of paragraphs b, d, and e of the dispositive portion of the decision to read as
follows:

b.) Ordering plaintiff to pay defendants the amount of P226,362.96 with legal interest
from dates of said payment and expenses paid by the defendants to the Manila Bank;

d.) Ordering defendants jointly and severally to pay plaintiff the amount of P5,000.00 as
moral and exemplary damages; and

e.) Ordering defendants jointly and severally to pay the amount of P5,000.00 as
attorney's fees.

With costs against the defendants'.

SO ORDERED. (Rollo, Annex "A", Decision, pp. 50-51).

A motion for reconsideration was filed on June 25, 1985, however, it was denied (Rollo, Annex "B", P.
52).

Hence, this petition.

The main issue in the instant case is whether or not parol evidence is admissible to annul the deed of
assignment on the ground of fraud.

Petitioners Rafael Pagsuyuin, et al. contend that both lower courts gravely erred in voiding the Deeds of
Assignment based upon extrinsic evidence of alleged vitiated consent of the assignor-private respondent
Salud Pagsuyuin in defiance of the settled rule of parol evidence that a document reduced to writing is
deemed to have contained all such terms and conditions as contemplated by the parties and there can
be, between the said parties and their successors in interest, no evidence of the terms of the agreement
other than the contents of the writing itself.

The contention is untenable.

The rule on parol evidence recognizes the following exceptions:

(a) where a mistake or imperfection of the writing, or its failure to express the true intent and
agreement of the parties, or the validity of the agreement is put in issue by the pleadings;

(b) . . . . (Sec. 7, Rule 130).

As can be clearly gleaned from the foregoing, the rule making a writing the exclusive evidence of the
agreement therein stated, is not applicable when the validity of such agreement is the fact in dispute. A
contract may be annulled where the consent of one of the contracting parties was procured by mistake,
fraud, intimidation, violence or undue influence (Art. 1330, New Civil Code). In fact, as early as 1919 in
the case of Bough v. Cantiveros, 40 Phil. 209, this Court laid down the rule that where the validity of the
agreement is the issue, parol evidence may be introduced to establish illegality or fraud.

In the case at bar, petitioners relied heavily on the fact of notarial certification of the Deeds of
Assignment by Notary Public Edmundo Tubio allegedly on the 13th of September, 1976 in the presence
of witnesses Marietta Pagsuyuin-Javier and Federico Javier to deflect the admissibility of parol evidence.

On the other hand, private respondent's evidence clearly shows that on September 7, 1976 a document
was brought to her at the Manila International, Airport, which she signed that same evening (when she
returned to her house) in the presence of witnesses Federico and Marietta Javier but they were not
given copies thereof (Rollo, pp. 72-76). Then on September 8, 1976 at around 6:00 a.m., Rafael
Pagsuyuin went to the house of the private respondent Salud Pagsuyuin with more documents for
signature. Relying on the assurances of petitioner Rafael that the same were additional copies of the

474
documents they had signed in the evening of September 7, 1976 (TSN, Hearing of May 9, 1978, pp. 9-
13; Rollo, pp. 73-74), Salud and her witnesses signed without reading as petitioner Rafael was in a hurry
(TSN, Hearing of January 31, 1978; Rollo, pp. 74-75) and he only showed them the latter portion and
refused to show the contents of the documents (TSN, Hearing of October 13, 1977; Rollo, pp. 75-76).
After he had obtained their signatures, Rafael left the house of Salud again without leaving any copy of
the document (TSN, Hearing of January 31, 1978, Ibid.). As it turned out, the documents were
denominated as Deeds of Assignment, contrary to the intent of private respondent. These testimonies
were never satisfactorily rebutted by the petitioners.

At this juncture, the findings of the trial court which were affirmed by the appellate court are quoted
with approval:

. . . the instruments of sale (Exh. "A" and "B") lacked the valid consent of the transferor Salud
Pagsuyuin as there was fraud enlisted in making plaintiff sign the documents without
understanding the contents thereof. The authenticity and genuineness of the documents were
attacked because . . . . . defendants vitiated consent in the preparation and execution of said
documents as plaintiff was misled into believing the same is a deed of mortgage instead of a
deed of assignment. The evidence had proven that plaintiff was tricked and deceived into
signing two (2) deeds of assignment which was not her intention to do so (sic).

The trial court continued:

The person who could have enlightened this court as to the disputed facts is none other than
Rafael Pagsuyuin himself, but said witness developed cold feet and discontinued declaring
against the plaintiff, most probably because of deep-rooted fear of being discovered falsifying
the truth and experiencing the fangs of guilty conscience, he broke completely down in court
and could not continue his declaration against his cousin the herein plaintiff, so that his counsel
withdrew him as a witness and his entire testimony was disregarded by this court. Judging from
his demeanor and attitude, the court had very well observed that he could not explain the
dubious circumstances that characterized the transfer of the property between him and the
plaintiff. The failure of defendant Rafael Pagsuyuin to give testimony was a fatal defect that
torpedoed the efforts of the defendants and witnesses to prove the defense that there was a
valid transfer of the properties. (C.A. Decision, Rollo, pp. 40-51).

While the writing itself may have been accompanied by the most solemn formalities, no instrument is so
sacred when tainted with fraud as to place it beyond the scrutiny of extrinsic evidence. This evidence
overcomes the known presumption fraus est odiosa et non praesumenda (Yturralde v. Vagilidad, 28
SCRA 393 [1969]).

The testimonies of private respondent Salud Pagsuyuin and her two instrumental witnesses which have
not been satisfactorily rebutted by the petitioners Rafael Pagsuyuin, et al. have made out a case of fraud
by evidence clear, convincing and more than merely preponderant.

Moreover, it is axiomatic that the factual findings of the trial Court and Court of Appeals are entitled to
great respect (Vda. de Roxas v. IAC, 143 SCRA 77 [1987]), that "it is a fundamental rule in criminal as well
as in civil cases that in the matter of credibility of witnesses the findings of the trial court are given great
weight and the highest degree of respect by the appellate court (People v. Sarol, 139 SCRA 125 [1985]),
unquestionably because the trial judge is in a superior position to gauge the credibility of those who
take the witness seat before him. He has the opportunity to size up the appearance, the demeanor, the
manner of testifying, the probability or improbability of the testimony, of the witnessed. Indeed, the
trial court has a first hand advantage to assess the value to be given the testimony of a witness
(Yturralde v. Vagilidad, supra).

Petitioners Rafael Pagsuyuin, et. al., also assign as error the grant of moral and exemplary damages plus
attorney's fees in favor of private respondent Salud Pagsuyuin.

As shown in the records of the case, the trial court and respondent Court of Appeals are in unison as to
the findings of the former that a sufficient cause of action had been proved by overwhelming

475
preponderance of evidence of the private respondent as against the petitioners Rafael Pagsuyuin, et al.
For moral damages to be awarded, it is essential that the claimant must have satisfactorily proved
during the trial the existence of the factual basis of the damages and its causal connection with adverse
party's acts. This is so because moral damages, though incapable of pecuniary estimation, are in the
category of an award designed to compensate the claimant for actual injury suffered and not to impose
a penalty on the wrongdoer (Makabili v. Court of Appeals, 157 SCRA 253 [1988]).

The wrongful act attributable to the petitioners –– the employment of fraud –– is the proximate cause
of the mental anguish suffered by private respondent Salud Pagsuyuin.

PREMISES CONSIDERED, the decision of the Intermediate Appellate Court dated June 6, 1985 is
AFFIRMED.

SO ORDERED.

Melencio-Herrera, Padilla, Sarmiento and Regalado JJ., concur.

[G.R. No. 141060. September 29, 2000.]

PILIPINAS BANK, Petitioner, v. COURT OF APPEALS, HON. ELOY R. BELLO, in his capacity as Presiding
Judge, RTC-Manila, Branch 15, and MERIDIAN ASSURANCE CORPORATION, Respondents.

DECISION

KAPUNAN, J.:

Before this Court is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure,
assailing the Decision of the Court of Appeals, Sixth Division dated July 30, 1999 in CA-G.R. S.P. No.
29749 1 which dismissed petitioner Pilipinas Bank’s petition for certiorari, 2 and the Resolution, dated
September 17, 1999 3 denying petitioner’s Urgent Motion for Extension of Time to file Motion for
Reconsideration, Manifestation and Motion to Admit Motion for Reconsideration.chanrob1es virtua1
1aw 1ibrary

The facts of the case are as follows:chanrob1es virtual 1aw library

On January 8, 1995, petitioner obtained from private respondent Meridian Assurance Corporation a
Money Securities and Payroll Comprehensive Policy which was effective from January 13, 1985 to
January 13, 1986. On November 25, 1985, at about 9:15 a.m., while the policy was in full force and
effect, petitioner’s armored vehicle bearing Plate No. NBT 379 which was on its way to deliver the
payroll withdrawal of its client Luzon Development Bank ACLEM Paper Mills, was robbed by two armed
men wearing police uniforms along Magsaysay Road, San Antonio, San Pedro, Laguna. Petitioner’s driver,
authorized teller and two private armed guards were on board the armored vehicle when the same was
robbed. The loss suffered by petitioner as a result of the heist amounted to P545,301.40.

Petitioner filed a formal notice of claim under its insurance policy with private respondent on December
3, 1985, invoking Section II of the Policy which states:chanrob1es virtual 1aw library

Section II — MONEY AND SECURITIES OUTSIDE PREMISES

The Company will subject to the Limits of this Section as hereinafter provided indemnify the insured
against loss by any cause whatsoever occuring (sic) outside the premises of Money and Securities in the
personal charge of a Messenger in transit on a Money Route . . . 4

and the warranty/rider attached to the Policy which provides that —

WARRANTED that in respect of PILIPINAS BANK Head Office and all its branches, pick-up and/or deposits

476
and withdrawals without the use of armored car, company car, or official’s car shall be covered by this
policy. . . . 5

Private respondent denied petitioner’s claim and averred that the insurance does not cover the
deliveries of the withdrawals to petitioner’s clients.chanrob1es virtua1 1aw 1ibrary

Petitioner thereafter filed a complaint against private respondent with the Regional Trial Court of Manila.
Private respondent filed a motion to dismiss which was later granted by the RTC. Petitioner then moved
to reconsider the trial court’s order, but the same was denied.chanrob1es virtua1 1aw 1ibrary

Aggrieved, petitioner filed a petition for certiorari with the Court of Appeals assailing the RTC’s order
dismissing the complaint. 6 The appellate court granted the petition and remanded the case to the RTC
for further proceedings. Private respondent filed with this Court a petition for review of the appellate
court’s decision, but the same was dismissed in a Resolution dated July 5, 1989.chanrob1es virtua1 1aw
1ibrary

After the case was remanded to the RTC and the latter set the case for pre-trial, petitioner filed its Pre-
Trial Brief, stating among others, that it would present as one of its witnesses Mr. Cesar R Tubianosa to
testify on the existence and due execution of the insurance policy, particularly on the negotiations that
were held prior to the execution thereof, including negotiations that led to the attachment warranties,
to prove that the loss subject of petitioner’s claim is covered by the Policy. Petitioner identified the
issues of the case as follows:chanrob1es virtua1 1aw 1ibrary

1. Whether or not the loss due to the hold-up/robbery is covered by the Insurance Policy;

2. In the affirmative, whether or not, defendant is liable to plaintiff for said loss, inclusive of other
damages prayed for in the Complaint.

On September 18, 1991, when petitioner was about to present Mr. Tubianosa to testify, private
respondent objected and argued that said witness’ testimony regarding the negotiations on the terms
and conditions of the policy would be violative of the best evidence rule. However, private respondent’s
objection was overruled and Tubianosa was allowed to take the stand. Private respondent again
objected to the questions regarding the negotiations on the terms and conditions on the policy, and the
trial court sustained the objection in part and overruled it in part by allowing petitioner to adduce
evidence pertaining to the negotiations other than what appears in the insurance policy. Tubianosa’s
testimony was completed on said date.

On June 18, 1992, petitioner filed a Motion to Recall Witness, praying that it be allowed to recall
Tubianosa to testify on the negotiations pertaining to the terms and conditions of the policy before its
issuance to determine the intention of the parties regarding the said terms and conditions. Private
respondent objected thereto, on the ground that the same would violate the parol evidence rule.

The RTC issued an Order dated July 24, 1999, denying petitioner’s motion to recall Tubianosa to the
witness stand, ruling that the same would violate the parol evidence rule. Petitioner’s motion for
reconsideration was also denied by the lower court.

On December 21, 1992, petitioner filed a petition for certiorari with the Court of Appeals assailing the
aforementioned Orders of the RTC. In its Decision dated July 30, 1999, the appellate court dismissed the
petition and held that there was no grave abuse of discretion on the part of respondent judge. It held
that there is no ambiguity in the provisions of the Policy which would necessitate the presentation of
extrinsic evidence to clarify the meaning thereof. The Court of Appeals also stated that petitioner failed
to set forth in its Complaint a specific allegation that there is an intrinsic ambiguity in the insurance
policy which would warrant the presentation of further evidence to clarify the intent of the contracting
parties.

Hence, the present petition.

We find no cogent reason to disturb the findings of the Court of Appeals.

477
Petitioner’s Complaint merely alleged that under the provisions of the Policy, it was entitled to recover
from private respondent the amount it lost during the heist. It did not allege therein that the Policy’s
terms were ambiguous or failed to express the true agreement between itself and private Respondent.
Such being the case, petitioner has no right to insist that it be allowed to present Tubianosa’s testimony
to shed light on the alleged true agreement of the parties, notwithstanding its statement in its Pre-Trial
Brief that it was presenting said witness for that purpose.

Section 9, Rule 130 of the Revised Rules of Court expressly requires that for parol evidence to be
admissible to vary the terms of the written agreement, the mistake or imperfection thereof or its failure
to express the true agreement of the parties should be put in issue by the pleadings. 7

As correctly noted by the appellate court, petitioner failed to raise the issue of an intrinsic ambiguity,
mistake or imperfection in the terms of the Policy, or of the failure of said contract to express the true
intent and agreement of the parties thereto in its Complaint. There was therefore no error on the part
of the appellate court when it affirmed the RTC’s Order disallowing the recall of Tubianosa to the
witness stand, for such disallowance is in accord with the rule that when the terms of an agreement
have been reduced to writing, it is considered as containing all the terms agreed upon and there can be,
between the parties and their successors-in-interest, no evidence of such other terms other than the
contents of the written agreement. 8

The rationale behind the foregoing rule was explained in Ortanez v. Court of Appeals, 9 where we
stated:chanrob1es virtual 1aw library

The parol evidence herein introduced is inadmissible. First, private respondents’ oral testimony on the
alleged conditions, coming from a party who has an interest in the outcome of the case, depending
exclusively on human memory, is not as reliable as written or documentary evidence. Spoken words
could be notoriously undesirable unlike a written contract which speaks of a uniform language. Thus,
under the general rule in Section 9 of Rule 130 of the Rules of Court, when the terms of an agreement
were reduced to writing, as in this case, it is deemed to contain all the terms agreed upon and no
evidence of such terms can be admitted other than the contents thereof . . . 10

WHEREFORE, the instant petition is hereby DENIED. The Decision of the Court of Appeals is hereby
AFFIRMED.

SO ORDERED.

Davide, Jr., C.J., Puno, Pardo and Ynares-Santiago, JJ., concur.

G.R. No. 55691 May 21, 1992

ESPERANZA BORILLO, in her behalf and in behalf of her children, petitioner,

vs.
HONORABLE COURT OF APPEALS and CATALINA BORILLO, respondents.

Crisostomo F. Pariñas for petitioner.

DAVIDE, JR., J.:

In this petition for review on certiorari under Rule 45 of the Rules of Court filed on 24 November 1980,
petitioner urges this Court to review and reverse the decision 1 of the Court of Appeals (Third Division)
in C.A.-G.R. No. 64536-R, promulgated on 3 September 1980, which reversed and set aside the 3 June
1978 decision of Branch II of the then Court of First Instance (now Regional Trial Court) of Abra in Civil
Case No. 1043.

478
On 10 February 1977, petitioner, for herself and on behalf of her children, filed before the
abovementioned trial court a complaint against private respondent and Marcos Borillo for the recovery
of several parcels of land located at Bugbuguis, Quillat, Langiden, Abra particularly described in said
complaint, under the first cause of action, as follows:

(a) A parcel of land (Riceland unirr. and pastureland) . . . with an area of 1231 sq. m.;
with assessed value in the sum of P40.00; under Tax Declaration No. 6319 in the name
of Esperanza Borillo, et al.;

(b) A parcel of land (Riceland unirr.) . . . with an area of 980 sq. m.; with an assessed
value in the sum of P40.00; under Tax Declaration No. 6320 in the name of Esperanza
Borillo, et al.;

(c) A parcel of land (Riceland unirr.) . . . with an area of 698 sq. m.; with assessed value
in the sum of P20.00; under Tax Declaration No. 6321 in the name of Esperanza
Borillo, et al.;

(d) A parcel of land (Cornland) . . . with an area of 570 sq. m.; with an assessed value of
P20.00; under Tax Declaration No. 6322 in the name of Esperanza Borillo, et al. 2

and one-fifth (1/5) undivided portion of two (2) parcels of land, also located in the same place as
the above four (4) parcels, particularly described under the second cause of action, thus:

(e) A parcel of land (Riceland unirr.) . . . with an area of 1440 sq. m.; with an assessed
value of P60.00; under Tax Declaration No. 1745 in the name of Venancio Borillo;

(f) A parcel of land (Cornland) . . . with an area of 684 sq. m.; with an assessed value of
P20.00; under Tax Declaration No. 0746 in the name of Venancio Borillo.3

The complaint was docketed as Civil Case No. 1043.

In the complaint, petitioner alleges that the abovementioned parcels (a), (b), (c) and (d) were originally
owned by her late husband, Elpidio Borillo, with whom she had four (4) children, namely: Patricia,
Melecio, Bonifacia and Quirino. Although said parcels of land were unregistered, they were declared in
1948 in the name of Elpidio under Tax Declaration Nos. 0731, 0732, 0733 and 0734,
respectively. 4 Elpidio had been in peaceful, public, continuous and uninterrupted possession thereof in
concept of owner even before his marriage to petitioner and until his death in 1970. After his death,
petitioner continued to possess and cultivate said parcels of land and enjoy the fruits thereof until
sometime in 1971-1972 when private respondent and Marcos Borillo, Elpidio's siblings, forcibly and
unlawfully dispossessed her of the property. Despite repeated demands, Marcos and the private
respondent refused to return the property to the petitioner and her children. In 1974, new Tax
Declarations, namely Nos. 6319, 6320, 6321 and 6322 5 for parcels (a), (b), (c) and (d), respectively, were
issued in her name. Upon the other hand, parcels (e) and (f), also unregistered, were inherited by Elpidio,
his brother Marcos and sisters Catalina, Aurelia and Rosita, from their father, Venancio Borillo. Elpidio's
1/5 pro-indiviso share therein was unlawfully taken by private respondent sometime in 1971; the latter
refused to return it to petitioner and her children, who are Elpidio's heirs, despite repeated demands.

Petitioner then prays that judgment be rendered declaring her and her children owners of parcels (a),
(b), (c) and (d), as well as the 1/5 pro-indiviso portion of parcels (e) and (f), and ordering the private
respondent and Marcos Borillo to pay actual and moral damages plus costs.

In their Answer filed on 14 March 1977, private respondent claims that parcels (a), (c) and (d) were sold
to her by her late brother Elpidio in 1935, while Marcos Borillo claims that parcel (b) was sold to him by
Elpidio sometime in 1937, long before Elpidio's marriage to petitioner. Although they did not declare
these parcels for taxation purposes in their respective names, they immediately took possession and
occupied the same as owners thereof. Private respondent had been paying the realty taxes on parcels
(a), (c) and (d) since 1948 6 and explains her failure to secure in her name tax declarations for said
parcels during Elpidio's lifetime by alleging that she trusted him because he was her brother and he had

479
assured her that she could transfer in her favor the title thereto anytime. After the Second World War,
Elpidio and Rosita, another sibling, sold to her their respective undivided shares in parcels (e) and (f).

On 15 March 1977, private respondent alone filed an Amended Answer. On the other hand, on 5 April
1977, Patricia and Melencio Borillo filed a motion to withdraw as co-plaintiffs on the ground that they
did not authorize their inclusion as such and that the private respondent is the true and lawful owner of
the land in question. 7

At the trial, private respondent relied heavily on Exhibit "3", a private document purportedly showing
that Elpidio sold to her all his property for P40.00, and Exhibit "4", which she claims to be a deed of sale
of parcels (a), (c) and (d) allegedly executed by Elpidio Borillo in 1935. Upon the other hand, Marcos
Borillo claimed that the deed of sale evidencing the sale to him of parcel (b) was lost during the Second
World War. Both parties claim actual possession of the property. Private respondent and Marcos Borillo
even claimed possession for more than thirty (30) years.

After trial on the merits, the lower court rendered on 3 June 1978 a decision in favor of herein petitioner,
the dispositive portion of which reads:

WHEREFORE, in view of the foregoing, judgment is hereby rendered declaring the

plaintiffs as the true owners of parcels A, B, C and D described in par. 4 of the complaint
and as co-owners of parcels E and F described in par. 6 of the complaint with Rosita
Borillo, Aurelia Borillo and the defendants Catalina Borillo and Marcos Borillo. With
costs against the defendants. 8

The trial court arrived at this decision on the basis of the following findings of fact:

The claim of ownership by the plaintiffs with respect to the four parcels of land
described in par. 4 of the complaint is preponderantly established by Tax Declaration
Nos. 731, 732, 733 and 734, Exhibits, "A, A-1, A-2 and A-3" for the plaintiffs. These tax
declarations covering the four parcels of land in question are tax declarations issued in
1948 and is (sic) in the name of Elpidio Borillo, husband of plaintiff Esperanza Borillo.
Defendants never declared it (sic) in their name (sic) and no action or attempt
whatsoever was made by the defendants to declare it (sic) in their name (sic) during the
lifetime of Elpidio Borillo. It was only after the death of Elpidio Borillo and the institution
of this action by the plaintiffs that defendants took action and strangely declared it (sic)
in their names.

Obviously, the bulk of evidence for the plaintiffs are (sic) the tax declarations in the
name of Elpidio Borillo which do not absolutely prove their ownership. But the
circumstances obtaining in this case renders (sic) the tax declarations — Exhibits "A, A-1,
A-2 and A-3", reliable and predominantly point that plaintiffs are owners of the four
parcels of land described in par. 4 of the complaint as against the plaintiffs (sic). First, it
will be noted that Exhibits A, A-1, A-2 and A-3 were prepared and issued long before the
death of Elpidio Borillo. He was then a bachelor having married the plaintiff Esperanza
Borillo in 1950. Defendant Catalina Borillo married long before the 2nd World War.
Defendant Marcos Borillo likewise married before World War II. Defendants have
properties declared in their names. Marcos Borillo accompanied the Assessors who
measured the four parcels of land according to him (sic). Despite the status of the
parties and the Assessors having been accompanied by defendant Marcos Borillo, still
the four parcels of land were declared in the name of Elpidio Borillo. It is unconceivable
(sic) why it was (sic) declared in the name of Elpidio Borillo, if it does (sic) not belong to
him. True, that tax declarations are not conclusive proof of ownership, but it cannot be
gainsaid especially in rural areas like Langiden, Abra where lands are not surveyed and
titled, that tax declarations are strong evidence of possession and ownership.

Secondly, the four parcels of land described in par. 4 of the complaint were declared in
the name of Elpidio Borillo for 29 years and no action whatsoever was taken by the
defendants to have the tax declarations (Exhibits A, A-1, A-2 and A-3) be (sic) cancelled

480
 and declared the lands (sic) in their names during the lifetime of the declared owner
Elpidio Borillo and immediately after his death. It was only in 1977 after the filing of the
complaint and after the plaintiffs caused the cancellation of Exhibits A, A-1, A-2 and A-3
and declared the lands in their names when defendants attempted to declare it (sic)
also in their names. The unfathomable tolerance of the defendants of having the four
(4) parcels of land be (sic) declared in the name of their deceased brother, Elpidio Borillo
in 1948 and remained (sic) in his name after his marriage with (sic) the plaintiff
Esperanza Borillo in 1950 even (sic) after his death in 1971, is fatal and strongly negate
their (sic) defendants' claim of ownership. No person like the defendants will ever allow
his/her property be (sic) declared in the name of another for twenty-nine (29) years. The
fact that the lands were declared in the name of Elpidio Borillo for twenty-nine (29)
years coupled by (sic) his actual possession during his lifetime until his death in 1971 as
testified to by Esperanza Borillo and Clemente Llaneza who is an uninterested witness
strongly outweighed the evidence for the defendants and convincingly indicate that the
four parcels of land described in par. 4 of the complaint really belong to Elpidio Borillo.
The claim of defendants that they are (sic) in actual possession before World War II up
to the present is persuasively belied by Exhibits A, A-1, A-2 and A-3 and the testimony of
Clemente Llaneza.

The claim of defendant Catalina Borillo that she purchased parcels A, C and D described
in par. 4 of the complaint from her deceased brother Elpidio Borillo before World War II
as evidence (sic) by Exhibits "3" and "4" appears unreliable and incredible. Exhibit "3"
which is an acknowledgment receipt dated May 12, 1946 made no mention of what
property has been sold. There is no evidence of any transfer of ownership. In fact, there
is nothing clear from the evidence as to what land of Elpidio Borillo is referred to in
Exhibit "3". From the terms of Exhibit "3" and the alleged consideration thereof, it thus
becomes obvious that it is only a receipt evidencing a loan of P40.00.

Exhibit "4" (receipt) which is the main basis of the claim of ownership by defendant
Catalina Borillo with respect to parcels A, C and D in par. 4 of the complaint, appears
unreliable and cannot prevail against the evidence for the plaintiffs. This Exhibit "4" for
defendant Catalina Borillo is undated and unsigned. Defendant Catalina Borillo testified
that she does not know the contends of Exhibit "4". Elpidio Borillo as shown by Exhibit
"3" for defendant Catalina Borillo and Exhibits E and F for the plaintiffs knows how to
write his name. Yet, Exhibit "4" was not signed by him. Aside from the patent defects of
Exhibit "4" on its face which renders it unreliable, it will be noted that during the pre-
trial proceedings, defendant Catalina Borillo presented Exhibit "4" to support her claim
as alleged in her answer of having purchased parcels A, C and D from Elpidio Borillo in
1935. Clearly embodied, however, in Exhibit "4" are tax declarations Nos. 0732, 0731
and 0734 which are indeed tax declarations in 1948 in the name of Elpidio Borillo.
Considering that Exhibit "4" is a document executed in 1935 according to the defendant
Catalina Borillo, why are Tax Declarations Nos. 731, 732 and 734 which were issued only
in 1948 incorporated? The inclusion of non-existent document (sic) in Exhibit "4" at the
time of its alleged execution absolutely renders Exhibit "4" wholly unworthy and
undeserving of any credence. 9

Private respondent appealed from the adverse decision to the respondent Court. Her co-defendant,
Marcos Borillo, did not.

The appeal was docketed as C.A.-G.R. No. 64536-R. In her Appellant's Brief, private respondent assigns
the following errors:

THAT THE FACTS RELIED UPON IS (sic) NOT SUPPORTED BY EVIDENCE.

II

481
 THAT THE DECISION IS NOT IN ACCORDANCE WITH LAW.

On 3 September 1980, the respondent Court promulgated its decision 10 reversing the decision of the
trial court, thus:

WHEREFORE, the judgment appealed from is hereby set aside and another judgment is
hereby rendered declaring defendant Catalina Borillo as the owner of parcels (a), (c) and
(d) and of the one-fifth portion of Elpidio Borillo in parcels (e) and (f); that defendant
Marcos Borillo is the owner of parcel (b); with costs against the plaintiffs.

SO ORDERED.

The respondent Court made the following disquisitions to support its decision:

We are convinced that the preponderance of the evidence tilt (sic) heavily in favor of
defendant. Defendant established she has been in possession in the concept of owner of
said three parcels of land (a), (c) and (d) since her purchase of the same long before the
war and she cultivated the same in the concept of owner, paying the real estate taxes
and thereafter declaring it in her name while Marcos Borillo acquired parcel (b) from
Elpidio since 1938 of which he took possession in the concept of owner, and declared
the same in his name paying the real estate taxes. No less than Melecio Borillo, son of
plaintiff Esperanza, not only withdrew as party plaintiff with his sister Patricia but he
even testified that he knew from the very mouth of his father Elpidio while he was still
alive that he sold the property in question to defendant Catalina Borillo. It has also been
shown that Elpidio Borillo sold his 1/5 portion of parcels (e) and (f) also before the war
to defendant and she had been in continuous possession since then in the concept of
owner.

Under Article 1137 of the Civil Code, such uninterrupted, adverse, open possession for
thirty (30) years by defendants regardless of their title or good faith upholds said
defendants' right over the property. (Parcotillo vs. Parcotillo, 12 SCRA 435, 440).

In finding for the plaintiffs the trial court relied on the tax declarations in the name of
Elpidio as proof that plaintiffs are the owners of the questioned property since the
property is untitled; that for 29 years no action was taken by defendants to declare the
property in their name (sic) and it was only in 1977 after the filing of the complaint that
defendants so declared the properties in their name (sic); that Exhibit 4 is unreliable
being unsigned by Elpidio when there is evidence that he could sign his name; that
Exhibit 3 did not mention the property sold; that Exhibit 4 was made in 1935 as alleged
in the answer but surprisingly it embodied Tax Declarations 731, 732 and 734 which
were issued only in 1948; and that the alleged sale of the right of Elpidio over parcels (e)
and (f) are without receipts.

We disagree. Declaration of ownership for taxation purposes, or assessment declaration

and tax receipts do not constitute evidence of ownership. They are only prima
facie evidence of possession. (Evangelista vs. Tabayuyong, 7 Phil. 607; Casimiro vs.
Fernandez, 9 Phil. 562) However, if the holder of a (sic) land presents a deed of
conveyance in his favor from the former owner thereof to support his claim of
ownership, the declaration of ownership and tax receipts relative to the property may
be used to prove good faith on his part in occupying and possessing the same.
(Elumbaring vs. Elumbaring, 12 Phi. 384) And while it is true that tax receipts do not
prove titled (sic) to a land, nevertheless when considered with the actual possession of
the property by the applicant, they constitute evidence of great weight in support of the
claim of title of ownership by prescription. (Viernes vs. Agpaoa, 41 Phil. 286; Land
Registration and Mortgages by Ventura, pp. 125-126)

Plaintiffs admitted that defendants are in possession of the lands in question and the
records show that even during the lifetime of Elpidio, the defendant had been paying

482
 the real property taxes of the property (Exhs. 1 to 1-I). The sale of parcels (a), (c) and (d)
to defendant is evidenced by Exhibits 3 and 4. Although Exhibit 3 does not indicate the
property subject of the sale, such deficiency can be attributed to the fact that this was a
document executed between brother and sister without the assistance of a lawyer but
testimonial evidence has been adduced that cured this defect. True it is that Exhibit 4
appears not to have been signed by Elpidio and he merely imprinted a cross over his
name when it appears that he knew how to sign. However, defendants Catalina and
Marcos Borillo categorically testified that Elpidio signed his name only by copying a
sample. Hence, it is understandable if Elpidio did not sign Exhibit 4 for he must not have
been furnished a (sic) guide to be copied. No evidence was adduced that Exhibit 4 was
actually executed in 1935. What was established is that Elpidio sold said three parcels to
defendant Catalina before the war. In confirmation of said sale, Exhibit 4 must have
been executed on or before 1948 that is why it reflects the Tax Declarations of said
property to be effective in the same year.

On the other hand, outside of the fact that the property remained to be declared in the
name of Elpidio plaintiffs have not adduced any other evidence to buttress their claim of
ownership. Plaintiff Esperanza paid for the real property taxes of the property only on
June 22, 1977 after the complaint was filed in court. (Exhibit C) It is not improbable that
the reason why the properties remained in the name of Elpidio inspite of the fact that it
has long been sold to defendants is because this is a sale between brother and sister
where mutual trust and confidence is to be expected. Indeed, during the lifetime of
Elpidio he never questioned the acts of ownership exercised by the defendants over the
property and even after his death in 1970, plaintiff Esperanza only remembered to
assert their alleged right in 1976 when she attempted to talk to defendant who told her
it was already sold to them and yet it was only in 1977 that the complaint was filed.

Petitioner took this present recourse asking Us to review the respondent Court's findings of facts and
reverse its decision on the ground that the same is based solely on "speculation, surmise and
conjecture," and that it committed a "misapprehension of facts."

After private respondent filed her Comment and the petitioner submitted a Reply, this Court gave due
course to the petition 11 and required the petitioner to submit her Brief within thirty (30) days from
notice, 12 which she complied with. 13 Private respondent subsequently filed her Brief. 14

The petition is meritorious.

To begin with, the respondent Court committed a grave error in reversing the trial court's judgment
insofar as it concerns defendant Marcos Borillo. As earlier stated, the latter did not appeal from the trial
court's decision. As against him, and more particularly with respect to parcel (b), the decision has long
become final and the respondent Court is without jurisdiction to review the same. 15 Otherwise stated,
beyond the period to appeal, a judgment is no longer within the scope of the power of review of any
court. 16 The appeal interposed by private respondent did not benefit Marcos Borillo because the
former does not have anything to do with parcel (b) and the defense in respect thereto is exclusive to
the latter.

The respondent Court likewise erred in reversing the trial court and ruling that private respondent is the
owner of parcels (a), (c) and (d) and Elpidio Borillo's 1/5 pro-indiviso share in parcels (e) and (f).

It is of course settled that the appellate court's findings of fact are binding and must be respected by this
Court. 17 There are, however, recognized exceptions thereto, 18 among which are when the factual
findings of the trial court and the appellate court are conflicting, 19 when they are totally devoid of
support in the record or are so glaringly erroneous as to constitute serious abuse of discretion. 20

These exceptions obtain in the present case.

The fact that parcels (a), (c) and (d) were originally owned by Elpidio Borillo is not disputed by private
respondent. In fact, she claims to have derived her title over the same from the former through a sale in

483
1935. Thus, the question to be resolved is whether or not Elpidio Borillo did in fact sell the said parcels
of land to the private respondent.

To substantiate her claim, private respondent presented two (2) documents, Exhibits "3" and "4". The
trial court in its judgment described Exhibit "3", dated 12 May 1946, as a mere acknowledgment receipt
of a loan of P40.00 and not a sale for it does not mention any property sold and is not acknowledged
before a notary public. It then concluded that said instrument is a mere receipt evidencing a loan. On
the other hand, Exhibit ''4'' is an undated and unsigned document written in lead pencil on simple grade
paper. The instrument has no witnesses, is not acknowledged before a notary public and has a mere
cross over the written name of Elpidio Borillo. It was duly proven that Elpidio knew how to write and
sign his name. Although Exhibit "4" was purportedly executed in 1935, the same mentions Tax
Declaration Nos. 0731, 0732, 0733 and 0734 issued in 1948 in the name of Elpidio Borillo. Private
respondent herself testified that she had no knowledge of the contents of said instrument. The trial
court ruled Exhibit "4" as "wholly unworthy and undeserving of any credence."

In reversing the foregoing findings, the respondent Court tried to justify the deficiencies and
discrepancies in Exhibit "3" by saying that the absence of specifications as to what property was sold is
understandable because the transaction was between brother and sister. It added that this defect was
cured by testimonial evidence. It made no attempt, however, to explain the variance in the date of the
alleged sale (1935) and the date of the instrument (1946).

As to Exhibit "4", the respondent Court accepted private respondent's explanation for the absence of
the signature of Elpidio Borillo on the purported deed of sale saying that contrary to petitioner's
assertion, Elpidio did not really know how to write his name. Private respondent and Marcos Borillo
testified that Elpidio's signature appeared on his voter's registration record and voter's ID card 21 only
because he was given a sample to copy. They declared that unlike those occasions, at the time of the
sale, Elpidio was not given any sample to copy; this explains why he just printed a cross over his name.
As to why it mentions tax declarations issued in 1948, although it is claimed to have been executed in
1935, the respondent Court theorizes and speculates that:

. . . In confirmation of said sale, Exhibit 4 must have been executed on or before 1948
that is why it reflects the Tax Declarations of said property to be effective in the same
year. 22

It is thus clear that what was originally submitted by private respondent as the original deed of sale was
later accepted by the respondent Court as a deed of confirmation of sale.

Both Exhibits "3" and "4" are private documents. Hence, before they may be received in evidence, their
due execution and authenticity must first be proven by the party presenting them. 23 At the hearing of
this case before the trial court, the controlling rule on this point was Section 21, Rule 132 of the Rules of
Court which provided:

Sec. 21. Private writing, its execution and authenticity, how proved. — Before any
private writing may be received in evidence, its due execution and authenticity must be
proved either:

(a) By anyone who saw the writing executed;

(b) By evidence of the genuineness of the handwriting of the maker; or

(c) By a subscribing witness. 24

Private respondent did not present anyone who actually saw the execution of Exhibits "3" and "4",
witnessed Elpidio affix his signature on Exhibit "3" or make the cross over his written name in Exhibit "4".
There are no subscribing witnesses. The due execution then of Exhibits "3" and "4", as the alleged deeds
of sale transferring title over said parcels of land to private respondent, was not satisfactorily proven;
thus, the same can not be received in evidence.

484
Even if We are to assume that Exhibits "3" and "4" are admissible in evidence, they still do not
satisfactorily prove the transfers of titles over the subject parcels to the private respondent. As earlier
pointed out, Exhibit "3" makes no mention of any property sold. Hence, it hardly qualifies as a deed of
sale. It suffers from a patent and not just an intrinsic ambiguity. The respondent Court then committed
an error by giving credence to the testimonies offered to cure such ambiguity. It disregarded the parol
evidence rule then applicable, namely, Section 7, Rule 130 of the Rules of Court, which provided as
follows:

Sec. 7. Evidence of written agreement. — When the terms of an agreement have been
reduced to writing, it is to be considered as containing all such terms, and, therefore,
there can be, between the parties and their successors in interest, no evidence of the
terms of the agreement other than the contents of the writing, except in the following
cases:

(a) Where a mistake or imperfection of the writing, or its failure to

express the true intent and agreement of the parties, or the validity of
the agreement is put in issue by the pleadings;

(b) When there is an intrinsic ambiguity in the writing.

The term "agreement" includes wills. 25

Before parol evidence may be admitted in order to identify, explain or define the subject matter of a
writing, it must first be shown that the writing itself already contains a description sufficient to serve as
a foundation for the admission of such parol evidence; the evidence should also be consistent with the
writing. Otherwise stated, in order to admit parol evidence to aid in the description of the subject
matter of a deed or other writing, there must be a description that will serve as a foundation for such
evidence; the writing must at least give some data from which the description may be found and made
certain. Parol evidence is not admissible to identify the property where the description thereof is so
vague as to amount to no description at all. In other words, parol evidence is not permitted to supply a
description, but only to apply it. 26

In his Commentary on the Rules of Court, 27 former Chief Justice Manuel V. Moran explains the rule in
the evident of patent ambiguity, as is the case in Exhibit "3":

. . . The rule is that "if the words of a document are so defective or ambiguous as to be
unmeaning, no evidence can be given to show what the author of the document
intended to say." (Steph, Evidence, Art. 91) The reason for the rule, in the language of
Mr. Justice Story, is that "if the language be too doubtful for any settled construction, by
the admission of parol evidence you create and do not merely construe the contract.
You attempt to do that for the party which he has not chosen to do for himself; and the
law very property denies such an authority to courts of Justice." (Peisch v. Dickson, Fed.
Cas. No. 10, 911, 1 Mason, 9.) As Lord Bacon said, "Ambiguitas patens cannot be holpen
by averment." (Bacon, Max., 23) A case of patent ambiguity is that of a deed wherein "a
parcel of land" without description is donated. The donation is void. The uncertainty
cannot be explained by parol evidence. (Wigmore on Evidence, 2d. ed., p. 414.) The
following appears to be the most accurate and most comprehensive statement of the
rule regarding patent ambiguity: "In other words and more generally, if the court,
placing itself in the situation in which the testator or contracting party stood at the time
of executing the instrument, and with a full understanding of the force and import of
the words, cannot ascertain his meaning and intention from the language of the
instrument, then it is a case of incurable, hopeless uncertainty and the instrument is,
therefore, so far inoperative and void." (Palmer v. Albee, 50 Ia., 429, 432, quoting 1
Greenleaf on Evidence, par. 300.)

As to Exhibit "4", We agree with the trial court that it could not have been prepared in 1935, as
contended by private respondent, because it makes reference to Tax Declarations issued in 1948,
thirteen (13) years later. Common sense and logic reject such contention. Unfortunately, the respondent

485
Court belabored the explanation that Exhibit "4" must have been executed on or before 1948 to confirm
the prior sale. This is unacceptable as it is purely conjectural. Absent any evidence that it was signed by
Elpidio Borillo, it is not difficult to conclude that this document does not proceed from any legitimate
source. It is one which could easily be fabricated. The trial court did not then err when it considered
Exhibit "4" as "wholly unworthy and undeserving of any credence."

It is not also true, as was held by the respondent Court, that the conclusion of the trial court that Elpidio
Borillo was in possession of the property in concept of owner until his death, is based solely on the tax
declarations in his name. As shown earlier, the court considered the testimonies of the petitioner and
one Clemente Llaneza whom the trial court described as "an uninterested witness." Thus:

. . . The fact that the lands were declared in the name of Elpidio Borillo for twenty-nine
(29) years coupled by his actual possession during his lifetime until his death in 1971 as
testified to by Esperanza Borillo and Clemente Llaneza who is an uninterested witness
strongly outweighed the evidence for the defendants and convincingly indicate that the
four parcels of land described in paragraph 4 of the complaint really belong to Elpidio
Borillo. . . .

It is thus clear that the authorities cited by the respondent Court on the probative value of the tax
declarations favor the herein petitioner and not the private respondent. For indeed, while tax
declarations and tax receipts do not constitute evidence of ownership, they are prima facie evidence of
possession. Accordingly, since Elpidio Borillo, during his lifetime, and then the petitioner, after his death,
secured and were issued tax declarations for the parcels of land in question, and were in fact in
possession thereof, the excuse offered by private respondent as to her failure to obtain the tax
declarations deserves no consideration at all. The flimsiness or implausibility of the excuse becomes
more apparent when We consider the findings of the trial court that private respondent has other
properties declared in her name for taxation purposes and that neither she nor Marcos objected to the
measurement by the assessors of the four (4) parcels for Elpidio Borillo.

The conclusion then is inevitable that the late Elpidio Borillo did not sell and alienate parcels (a), (c) and
(d) to private respondent.

As to parcels (e) (f), private respondent presented no deed of sale in her favor.

Private respondent can not likewise seek refuge under a claim of ownership by virtue of acquisitive
prescription.

Acquisitive prescription of dominion requires that there be public, peaceful and uninterrupted
possession in the concept of owner 28 for a period of ten (10) years, in case of ordinary
prescription, 29 and thirty (30) years, in case of extraordinary prescription. 30

After reviewing the evidence presented before it, the trial court concluded that Elpidio Borillo had actual,
peaceful and continuous possession of the subject parcels of land during his lifetime and until his death
in 1970. The respondent Court reversed this finding and ruled that it was private respondent who had
the possession since her purchase thereof in 1935.

It is a matter of judicial policy to accord the trial court's findings of facts with the highest respect and not
to disturb the same on appeal unless there are strong and impelling reasons to do so. 31 The reason for
this is that trial courts have more opportunity and facilities to examine factual matters than appellate
courts. 32 They are in a better position to assess the credibility of witnesses, not only by the nature of
their testimonies, but also by their demeanor on the
stand. 33

In Shauf vs. Court of Appeals, 34 We ruled:

Elementary is the rule that the conclusions and findings of fact of the trial court are
entitled to great weight on appeal and should not be disturbed unless for strong and
cogent reasons. (Vda. de Alberto, et al. vs. CA, et al., 173 SCRA 436 [1989]) Absent any

486
 substantial proof, therefore, that the trial court's decision was grounded entirely on
speculations, surmises or conjectures, the same must be accorded full consideration and
respect. This should be so because the trial court is, after all, in a much better position
to observe and correctly appreciate the respective parties' evidence as they were
presented. (Matabuena vs. CA, et al., 173 SCRA 170 [1989])

We find no impelling, compelling or cogent reason to overturn the findings of fact of the trial court.

WHEREFORE, the instant petition is GRANTED. The challenged decision of the Court of Appeals is hereby
REVERSED and SET ASIDE and the judgment of the Regional Trial Court of Abra dated 3 June 1978 in Civil
Case No. 1043 is hereby AFFIRMED and REINSTATED.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Romero, JJ., concur.

[G.R. No. 79962 : December 10, 1990.]

192 SCRA 209
LUCIO R. CRUZ, Petitioner, vs. COURT OF APPEALS AND CONRADO Q. SALONGA, Respondents.

DECISION

CRUZ, J.:

The private respondent Conrado Salonga filed a complaint for collection and damages against petitioner
Lucio Cruz ** in the Regional Trial Court of Lucena City alleging that in the course of their business
transactions of buying and selling fish, the petitioner borrowed from him an amount of P35,000.00,
evidenced by a receipt dated May 4, 1982, marked as Exhibit D, reading as follows:
5/4/82
Received the amount of Thirty Five Thousand Cash from Rodrigo Quiambao and Conrado Salonga on the
day of May 4, 1982.
Sgd. Lucio Cruz
The plaintiff claimed that of this amount, only P20,000.00 had been paid, leaving a balance of
P10,000.00; that in August 1982, he and the defendant agreed that the latter would grant him an
exclusive right to purchase the harvest of certain fishponds leased by Cruz in exchange for certain loan
accommodations; that pursuant thereto, Salonga delivered to Cruz various loans totaling P15,250.00,
evidenced by four receipts and an additional P4,000.00, the receipt of which had been lost; and that
Cruz failed to comply with his part of the agreement by refusing to deliver the alleged harvest of the
fishpond and the amount of his indebtedness.
Cruz denied having contracted any loan from Salonga. By way of special defense, he alleged that he was
a lessee of several hectares of a fishpond owned by Nemesio Yabut and that sometime in May 1982, he
entered into an agreement with Salonga whereby the latter would purchase (pakyaw) fish in certain
areas of the fishpond from May 1982 to August 15, 1982. They also agreed that immediately thereafter,
Salonga would sublease (bubuwisan) the same fishpond for a period of one year. Cruz admitted having
received on May 4, 1982, the amount of P35,000.00 and on several occasions from August 15, 1982, to
September 30, 1982, an aggregate amount of P15,250.00. He contended however, that these amounts
were received by him not as loans but as consideration for their "pakyaw" agreement and payment for
the sublease of the fishpond. He added that it was the private respondent who owed him money since
Salonga still had unpaid rentals for the 10-month period that he actually occupied the fishpond. Cruz
also claimed that Salonga owed him an additional P4,000.00 arising from another purchase of fish from
other areas of his leased fishpond.

487
In a pre-trial conference held on August 24, 1984, petitioner and private respondent entered into the
following partial stipulation of facts.
COURT:
Plaintiff and defendant, through their respective counsel, during the pre-trial conference, agreed on the
following stipulation of facts:
1) That plaintiff Conrado Salonga entered into a contract of what is commonly called as
'pakyawan' with defendant Lucio Cruz on the fishes contained in a fishpond which defendant
Lucio Cruz was taking care of as lessee from the owner Mr. Nemesio Yabut, with a verbal
contract for the sum of P28,000.00 sometime in May 1982.
2) That because of the necessity, defendant Lucio Cruz at that time needed money, he
requested plaintiff Conrado Salonga to advance the money of not only P28,000.00 but
P35,000.00 in order that Lucio Cruz could meet his obligation with the owner of the fishpond in
question, Mr. Nemesio Yabut;
3) That the amount of P35,000.00 as requested by defendant Lucio Cruz was in fact delivered by
plaintiff Conrado Salonga duly received by the defendant Lucio Cruz, as evidenced by a receipt
dated May 4, 1982, duly signed by defendant Lucio Cruz
4) That pursuant to said contract of "pakyaw," plaintiff Conrado Salonga was able to harvest the
fishes contained in the fishpond administered by Lucio Cruz in August 1982.
5) Immediately thereafter the aforesaid harvest thereon, they entered again on a verbal
agreement whereby plaintiff Conrado Salonga and defendant Lucio Cruz had agreed that
defendant Lucio Cruz will sublease and had in fact subleased the fishpond of Nemesio Yabut to
the herein plaintiff for the amount of P28,000.00 for a period of one year beginning August 15,
1982.
6) That sometime on June 15, 1983, Mayor Nemesio Yabut, who is the owner of the fishpond,
took back the subject matter of this case from the defendant Lucio Cruz.
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received
from the plaintiff Conrado Salonga the following sums of money:
a) P8,000.00 on August 15, 1982 as evidenced by Annex "B" of the Complaint. (Exh. E);
b) The sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the
complaint (Exh. F);
c) The sum of P3,000.00 on September 19, 1982 as evidenced by Annex "D" of the
complaint (Exh. G); and
d) The sum of P3,750.00 on September 30, 1982 as Annex "E" of the complaint (Exh. H).
At the trial, the private respondent claimed that aside from the amounts of P35,000.00 (Exh. D),
P8,000.00 (Exh. E), P500.00 (Exh. F), P3,000.00 (Exh. G) and P3,750.00 (Exh. H) mentioned in the partial
stipulation of facts, he also delivered to the petitioner P28,000.00, which constituted the consideration
for their "pakyaw" agreement. This was evidenced by a receipt dated May 14, 1982 marked as Exhibit I
and reading as follows:
May 14, 1982
Tinatanggap ko ang halagang dalawampu't walong libong piso (P28,000.00) bilang halaga sa
pakyaw nila sa akin sa sangla sa kahong bilang #8 maliit at sa kaputol na sapa sa gawing may
bomba. Ito ay tatagal hanggang Agosto 1982.
SGD. LUCIO CRUZ
Salonga also claimed that he had paid Cruz the amount of P4,000 but the receipt of which had been lost
and denied being indebted to the petitioner for P4,000 for the lease of other portions of the fishpond.
For his part, the petitioner testified that he entered into a "pakyaw" and sublease agreement with the
private respondent for a consideration of P28,000 for each transaction. Out of the P35,000 he received
from the private respondent on May 4, 1982, P28,000 covered full payment of their "pakyaw"
agreement while the remaining P7,000 constituted the advance payment for their sublease agreement.
The petitioner denied having received another amount of P28,000 from Salonga on May 14, 1982. He

488
contended that the instrument dated May 14, 1982 (Exh. I) was executed to evidence their "pakyaw"
agreement and to fix its duration. He was corroborated by Sonny Viray, who testified that it was he who
prepared the May 4, 1982, receipt of P35,000.00, P28,000 of which was payment for the "pakyaw" and
the excess of P7,000.00 as advance for the sublease.
The trial court ruled in favor of the petitioner and ordered the private respondent to pay the former the
sum of P3,054.00 plus P1,000.00 as litigation expenses and attorney's fees, and the costs. Judge Eriberto
U. Rosario, Jr. found that the transactions between the petitioner and the private respondent were
indeed "pakyaw" and sublease agreements, each having a consideration of P28,000.00, for a total of
P56,000.00. Pursuant to these agreements, Salonga paid Cruz P35,000.00 on May 4, 1982 (Exh. D);
P8,000.00 on August 15, 1982 (Exh. E); P500.00 on September 4, 1982 (Exh. F); P3,000 on September 19,
1982; P3,750 on September 30, 1982 (Exh. H) and P4,000.00 on an unspecified date. The trial court
noted an earlier admission of the private respondent that on an unspecified date he received the sum of
P6,000.00 from the petitioner. This amount was credited to the petitioner and deducted from the total
amount paid by the private respondent. As the one-year contract of sublease was pre-terminated two
months short of the stipulated period, the rentals were correspondingly reduced.
On appeal, the decision of the trial court was reversed. The respondent court instead ordered the
petitioner to pay the private respondent the sum of P24,916.00 plus P1,500.00 as litigation expenses
and attorney's fees, on the following justification:
Exhibit "I" is very clear in its non-reference to the transaction behind Exhibit "D." What only gives the
semblance that Exhibit "I" is an explanation of the transaction behind Exhibit "D" are the oral
testimonies given by the defendant and his two witnesses. On the other hand, Exhibit "I" is very clear in
its language. Thus, its tenor must not be clouded by any parol evidence introduced by the defendant.
And with the tenor of Exhibit "I" remaining unembellished, the conclusion that Exhibit "D" is a mere
tentative receipt becomes untenable.
The trial court erred when it relied on the self-serving testimonies of the defendant and his witness as
against the receipts both parties presented and adopted as their own exhibits. As said before, Exhibit "I"
is very clear in its tenor. And if it is really the intention of Exhibit "I" to explain the contents of Exhibit
"D", such manifestation or intention is not found in the four corners of the former document.
The respondent court also found that the amounts of P35,000.00, P8,000.00, P500.00, P3,000.00,
P3,750.00 and P4,000.00 were not payments for the "pakyaw" and sublease agreement but for loans
extended by Salonga to Cruz. It also accepted Salonga's claim that the amount of P28,000.00 was
delivered to the petitioner on May 14, 1982, as payment on the "pakyaw" agreement apart from the
P35,000.00 (Exh. D) that was paid on May 4, 1982. However, it agreed that the amount of P6,000.00
received by the private respondent from the petitioner should be credited in favor of the latter.
The petitioner is now before this Court, raising the following issues:
1. The public respondent Court of Appeals gravely erred in (1) disregarding parol evidence to
Exhibits "D" and "I" despite the fact that these documents fall under the exceptions provided for
in Sec. 7, Rule 130 of the Rules of Court and thereby in (2) making a sweeping conclusion that
the transaction effected between the private respondent and petitioner is one of contract of
loan and not a contract of lease.
2. Assuming for the sake of argument that exhibits "D" and "I" evidence separate transactions,
the latter document should be disregarded, the same not having been pleaded as a cause of
action.
3. Whether or not the Stipulation of Facts entered into by the parties herein relative to their
executed transactions during the hearing of their case a quo, are binding upon them and as well
as, upon the public respondent?
Our ruling follows:
Rule 130, Sec. 7, of the Revised Rules of Court provides: 1
Sec. 7. Evidence of Written Agreements. — When the terms of an agreement have been reduced to
writing, it is to be considered as containing all such terms, and therefore, there can be, between the
parties and their successors in interest, no evidence of the terms of the agreement other than the
contents of the writing, except in the following cases:

489
a) When a mistake or imperfection of the writing or its failure to express the true intent and agreement
of the parties, or the validity of the agreement is put in issue by the pleadings;
b) When there is an intrinsic ambiguity in the writing. The term "agreement" includes wills.
The reason for the rule is the presumption that when the parties have reduced their agreement to
writing they have made such writing the only repository and memorial of the truth, and whatever is not
found in the writing must be understood to have been waived or abandoned. 2
The rule, however, is not applicable in the case at bar, Section 7, Rule 130 is predicated on the existence
of a document embodying the terms of an agreement, but Exhibit D does not contain such an
agreement. It is only a receipt attesting to the fact that on May 4, 1982, the petitioner received from the
private respondent the amount of P35,000. It is not and could have not been intended by the parties to
be the sole memorial of their agreement. As a matter of fact, Exhibit D does not even mention the
transaction that gave rise to its issuance. At most, Exhibit D can only be considered a casual
memorandum of a transaction between the parties and an acknowledgment of the receipt of money
executed by the petitioner for the private respondent's satisfaction. A writing of this nature, as Wigmore
observed is not covered by the parol evidence rule.
A receipt — i.e. a written acknowledgment, handed by one party to the other, of the manual custody of
money or other personality — will in general fall without the line of the rule; i.e. it is not intended to be
an exclusive memorial, and the facts may be shown irrespective of the terms of the receipt. This is
because usually a receipt is merely a written admission of a transaction independently existing, and, like
other admissions, is not conclusive. 3
The "pakyaw" was mentioned only in Exhibit I, which also declared the petitioner's receipt of the
amount of P28,000.00 as consideration for the agreement. The petitioner and his witnesses testified to
show when and under what circumstances the amount of P28,000.00 was received. Their testimonies do
not in any way vary or contradict the terms of Exhibit I. While Exhibit I is dated May 14, 1982, it does not
make any categorical declaration that the amount of P28,000.00 stated therein was received by the
petitioner on that same date. That date may not therefore be considered conclusive as to when the
amount of P28,000.00 was actually received.
A deed is not conclusive evidence of everything it may contain. For instance, it is not the only evidence
of the date of its execution, nor its omission of a consideration conclusive evidence that none passed,
nor is its acknowledgment of a particular consideration an objection to other proof of other and
consistent considerations; and, by analogy, the acknowledgment in a deed is not conclusive of the
fact. 4
A distinction should be made between a statement of fact expressed in the instrument and the terms of
the contractual act. The former may be varied by parol evidence but not the latter. 5 Section 7 of Rule
130 clearly refers to the terms of an agreement and provides that "there can be, between the parties
and their successors in interest, no evidence of the terms of the agreement other than the contents of
the writing."
The statement in Exhibit I of the petitioner's receipt of the P28,000.00 is just a statement of fact. It is a
mere acknowledgment of the distinct act of payment made by the private respondent. Its reference to
the amount of P28,000.00 as consideration of the "pakyaw" contract does not make it part of the terms
of their agreement. Parol evidence may therefore be introduced to explain Exhibit I, particularly with
respect to the petitioner's receipt of the amount of P28,000.00 and of the date when the said amount
was received.
Even if it were assumed that Exhibits D and I are covered by the parol evidence rule, its application by
the Court of Appeals was improper. The record shows that no objection was made by the private
respondent when the petitioner introduced evidence to explain the circumstances behind the execution
and issuance of the said instruments. The rule is that objections to evidence must be made as soon as
the grounds therefor become reasonably apparent. 6 In the case of testimonial evidence, the objection
must be made when the objectionable question is asked or after the answer is given if the objectionable
features become apparent only by reason of such answer. 7
For failure of the private respondent to object to the evidence introduced by the petitioner, he is
deemed to have waived the benefit of the parol evidence rule. Thus, in Abrenica v. Gonda, 8 this Court
held:

490
. . . it has been repeatedly laid down as a rule of evidence that a protest or objection against the
admission of any evidence must be made at the proper time, and that if not so made it will be
understood to have been waived. The proper time to make a protest or objection is when, from the
question addressed to the witness, or from the answer thereto, or from the presentation of proof, the
inadmissibility of evidence is, or may be inferred.
It is also settled that the court cannot disregard evidence which would ordinarily be incompetent under
the rules but has been rendered admissible by the failure of a party to object thereto. Thus:
. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the allowance of
improper questions that may be put to him while on the stand is a matter resting in the discretion of the
litigant. He may assert his right by timely objection or he may waive it, expressly or by silence. In any
case the option rests with him. Once admitted, the testimony is in the case for what it is worth and the
judge has no power to disregard it for the sole reason that it could have been excluded, if it had been
objected to, nor to strike it out on its own motion. (Emphasis supplied.) 9
We find that it was error for the Court of Appeals to disregard the parol evidence introduced by the
petitioner and to conclude that the amount of P35,000.00 received on May 4, 1982 by the petitioner
was in the nature of a loan accommodation. The Court of Appeals should have considered the partial
stipulation of facts and the testimonies of the witnesses which sought to explain the circumstances
surrounding the execution of Exhibits D and I and their relation to one another.
We are satisfied that the amount of P35,000.00 was received by the petitioner as full payment of their
"pakyaw" agreement for P28,000.00 and the remaining P7,000.00 as advance rentals for their sublease
agreement. The claim that the excess of P7,000.00 was advance payment of the sublease agreement is
bolstered by the testimony of the private respondent himself when during the cross examination he
testified that:
ATTY. CRUZ:
Q And during the time you were leasing the fishpond, is it not a fact that you pay lease rental to the
defendant?
SALONGA:
A No sir, because I have already advanced him money.
Q What advance money are you referring to?
A Thirty-Five Thousand Pesos (P35,000.00), sir. 10
It was also error to treat the amounts received by the petitioner from August 15, 1982, to September 30,
1982, from the private respondent as loan accommodations when the partial stipulation of facts clearly
stated that these were payments for the sublease agreement. The pertinent portions read:
7) That defendant Lucio Cruz in compliance with their verbal sublease agreement had received from the
plaintiff Conrado Salonga the following sums of money: (Emphasis Supplied.)
(a) P8,000.00 on August 15, 1982, as evidenced by Annex "B" of the complaint;
(b) the sum of P500.00 on September 4, 1982, as evidenced by Annex "C" of the complaint;
(c) the sum of P3,000.00 on September 19, 1982, as evidenced by Annex "D" of the complaint;
(d) the sum of P3,750.00 on September 30, 1982, as Annex "E" of the complaint; 11
These admissions bind not only the parties but also the court, unless modified upon request before the
trial to prevent manifest injustice.
We find, however, that the Court of Appeals did not act in excess of its jurisdiction when it appreciated
Exhibit I despite the fact that it was not pleaded as a cause of action and was objected to by the
petitioner. According to Rule 10 of the Rules of Court:
Sec. 5. Amendment to conform to or authorize presentation of evidence. — When issues not raised by
the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects,
as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to
cause them to conform to the evidence and to raise these issues may be made upon motion of any party
at any time, even after judgment; but failure to amend does not affect the result of the trial of these
issues. If evidence is objected to at the trial on the ground that it is not within the issues made by the

491
pleadings, the court may allow the pleadings to be amended and shall do so freely when the
presentation of the merits of the action will be subserved thereby and the objecting party fails to satisfy
the court that the admission of such evidence would prejudice him in maintaining his action or defense
upon the merits. The court may grant a continuance to enable the objecting party to meet such
evidence.
In Co Tiamco v. Diaz, 12 the Supreme Court held:
. . . When evidence is offered on a matter not alleged in the pleadings, the court may admit it even
against the objection of the adverse party, when the latter fails to satisfy the court that the admission of
the evidence would prejudice him in maintaining his defense upon the merits, and the court may grant
him continuance to enable him to meet the situation created by the evidence . . .
While it is true that the private respondent did not even file a motion to amend his complaint in order
that it could conform to the evidence presented, this did not prevent the court from rendering a valid
judgment on the issues proved. As we held in the Co Tiamco case:
. . . where the failure to order an amendment does not appear to have caused a surprise or prejudice to
the objecting party, it may be allowed as a harmless error. Well-known is the rule that departures from
procedure may be forgiven when they do not appear to have impaired the substantial rights of the
parties.
The following computation indicates the accountability of the private respondent to the petitioner:
Exh. D, May 4, 1982 — P35,000.00
Exh. E, Aug. 15, 1982 — 8,000.00
Exh. F, Sept. 4, 1982 — 500.00
Exh. G, Sept. 19, 1982 — 3,000.00
Exh. H, Sept. 30, 1982 — 3,750.00
Lost receipt 4,000.00
————
P54,250.00
Less: (amount received by the
private respondent from the
petitioner) (6,000.00)
————
Total amount paid by the
private respondent to
the petitioner 48,250.00
Amount to be paid by the private respondent to the petitioner:
1. Pakyaw P28,000.00
2. Sublease — 28,000 per annum
Less: 2 months: 4,666 23,334.00
————
Total amount to be paid by
the private respondent to
the petitioner P51,334.00
Total amount to be paid
by the private respondent P51,334.00
Total amount paid by

492
the private respondent 48,250.00
————
Deficiency in the amount
paid by the private respondent P3,084.00
ACCORDINGLY, the decision of the respondent Court of Appeals is REVERSED and that of the Regional
Trial Court of Laguna AFFIRMED, with the modification that the private respondent shall pay the
petitioner the sum of P3,084.00 instead of P3,054.00, plus costs. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.
[G.R. No. 114170. January 15, 1999.]

PROSPERITY CREDIT RESOURCES, INC., Petitioner, v. COURT OF APPEALS and METROPOLITAN FABRICS,
INC., Respondents.

DECISION

MENDOZA, J.:

For review in this case is a decision 1 of the Sixth Division of the Court of Appeals in CA GR. 28684-SP
dated November 26, 1993 setting aside a writ of preliminary mandatory injunction issued by the
Regional Trial Court of Quezon City (Branch 95).chanroblesvirtuallawlibrary

On August 3, 1984, petitioner Prosperity Credit Resources, Inc. gave a loan to private respondent
Metropolitan Fabrics, Inc. 2 To secure the payment of the loan, private respondent mortgaged to
petitioner seven parcels of land located at 685 Tandang Sora Avenue, Bo. Banlat, Quezon City. 3 The lots
comprise a commercial compound with Tandang Sora Avenue as the nearest public road.

By October 27, 1987, private respondent’s loan amounted to P10.5 million. 4 As private respondent
defaulted in the payment of the loan, petitioner foreclosed the mortgage and, in the ensuing public
bidding, became the highest bidder and purchaser of the seven (7) lots subject of the mortgage.

Later, private respondent negotiated with petitioner for the redemption of three lots covered by TCT
Nos. 317705, 317706, and 317707, 5 all located on the southern and middle portions of the compound.
As the reacquisition of these three lots by private respondent would leave the remaining four lots on the
northwestern side without access to Tandang Sora Avenue, petitioner acceded to private respondent’s
request on the condition that petitioner be given a right of way on the existing private road which forms
part of the area to be redeemed by private Respondent. The parties’ agreement was embodied in a
Memorandum of Undertaking, dated September 18, 1987, the full text of which reads: 6

MEMORANDUM OF UNDERTAKING KNOW ALL MEN THESE PRESENTS:chanrob1es virtual 1aw library

That METROPOLITAN FABRICS, INC. is the registered owner of that certain land covered by Transfer
Certificate of Title No. 317709, more particularly described as follows:chanrob1es virtual 1aw library

A parcel of land (Lot 11 (Existing Road) of the consolidation-subd. plan (LRC) Pcs-27706, approved as a
non-subdn. project, being a portion of the consolidation of Lots 373-E, (LRC) Psd-16383; 377-B, Fls-2163-
D; 377-C-1, 2, 3, & 4 (LRC) Psd-5025; 377-C-5-A, & B, (LRC) Psd-9474; 384-A & 387-B-1, (LRC) Psd-
254813; 388-A & C, Psd-30663; 388-B-1, 2, 3, 4 & 5, Psd-54827; 389-A-1, 2 & 3, 389-B-1 (LRC) Psd-10087;
and 389-B-2-C, (LRC) Psd-18842; LRC (GLRO) Rec. No. 5975) situated in the Bo. of Banlat, Quezon City,
Metro Manila, Is. of Luzon . . . containing of an area of FIVE THOUSAND THREE HUNDRED SIXTY SEVEN
(5,367) SQUARE METERS, more or less.

That the above-described lot, being an existing private road, will remain open to ingress and egress for
whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES, INC. or its successors-in-
interest, the mortgagee of Lots 1, 4, 5, 6, 7, 8 and 9 of the consolidation-subdivision plan, Pcs-27706 of

493
Transfer Certificates of Title Nos. 317699, 317702, 317703, 317704, 317705, 317706 & 317707,
respectively, in the name of METROPOLITAN FABRICS, INC.

DONE this Sep. 18, 1987 in the city of Manila.

On November 7, 1991, petitioner filed an injunctive suit in the Regional Trial Court of Quezon City
(Branch 95). Petitioner alleged that, in violation of the terms of the Memorandum of Agreement, private
respondent refused to allow petitioner to make excavations on one side of the access road for the
installation of water pipes; that it banned entry of petitioner’s trucks and those of its tenants between
11:30 A.M. to 1:00 P.M. and 10:00 P.M. to 7:00 A.M.; and that it subjected the vehicles to unnecessary
searches. Petitioner sought the issuance of a writ of preliminary mandatory injunction requiring private
respondent "to allow [petitioner] to proceed with the MWSS installation project over the road lot in
question, to allow [petitioner’s] and [its] tenants’ delivery trucks and other vehicles access to the same
at any time and without undergoing unnecessary searches, and to otherwise recognize [petitioner’s]
right of way over the said lot." 7 Petitioner prayed that, after trial, the writ be made final.

On December 21, 1991, private respondent filed an answer with counterclaim, alleging that petitioner’s
right to undertake excavations on the access road was not provided for in the Memorandum of
Undertaking. 8 As counterclaim, private respondent alleged that it was petitioner which caused damage
to private respondent’s tenants by undertaking, without its consent, construction works on the access
road which raised its level to about a meter and caused serious flooding of the nearby buildings
whenever it rained; 9 and that, as a result, its tenants demanded compensation for damage to their
merchandise and equipment occasioned by the flooding. Private respondent prayed for P2.1 million as
counterclaim. 10

The trial court required the parties to submit position papers in connection with petitioner’s prayer for a
preliminary mandatory injunction. 11 After the parties had done so, the trial court granted, on February
14, 1992, petitioner’s prayer for a preliminary writ, conditioned upon the filing by petitioner of a bond in
the amount of P500,000.00. The trial court said in part:chanrob1es virtual 1aw library

. . . [T]he court finds that to deny plaintiff’s application for a preliminary mandatory injunction writ
would be to disregard its right of way in respect of the road lot in question, a right clearly set forth in
defendant’s memorandum of undertaking of September 18, 1987; indeed, no cogent reason appears to
warrant treating the terms "for whatever kind of passage" contained therein as nothing more than a
useless, meaningless redundancy . . .

ACCORDINGLY, plaintiff’s subject application is hereby granted and the Court hereby directs that upon
the filing and approval of the corresponding injunction bond in the sum of P500,000.00, . . . let
corresponding preliminary mandatory injunction writ be issued directing defendant to allow plaintiff to
proceed with its MWSS installation project over the road lot in question, to allow plaintiff’s and its
tenant’s delivery trucks and other vehicles access to the same at any time and without undergoing
unnecessary searches, and to otherwise recognize plaintiff’s right of way over the said road lot, pending
the termination of this litigation and/or unless a contrary order is issued by this Court . . . 12

On March 2, 1992, the trial court issued the writ upon filing of the required bond by petitioner. 13
Private respondent filed a motion for reconsideration of the orders granting injunction which the trial
court denied. 14 However, it increased the injunction bond to P2.1 million. 15

Private respondent filed a petition for certiorari and prohibition with the Court of Appeals to annul the
aforesaid orders, dated February 14, 1992 and March 2, 1992, of the trial court. On November 26, 1994,
the appellate court granted the petition and set aside the questioned orders after finding that the trial
court had acted with grave abuse of discretion in issuing them. 16 Its motion for reconsideration having
been denied on February 28, 1994, petitioner filed the present petition for review on certiorari alleging
that: 17

1. THE COURT OF APPEALS GRAVELY ERRED WHEN IT EXERCISED CERTIORARI POWERS TO REVERSE AN
ERROR OF JUDGMENT COMMITTED BY THE REGIONAL TRIAL COURT, UPON FINDING THAT THE LOWER
COURT "MISUNDERSTOOD" THE RIGHT OF HEREIN PETITIONER PROSPERITY OVER THE ROAD LOT IN

494
QUESTION.

2. THE COURT OF APPEALS GROSSLY ERRED WHEN IT APPLIED THE DOCTRINE ENUNCIATED IN RIVAS V.
SEC (190 SCRA 295) DESPITE THE DIVERSITY IN FACTUAL SETTING OF THE INSTANT CASE VIS-A-VIS THAT
OBTAINING IN THE CITED CASE.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

3. THE COURT OF APPEALS GRAVELY ERRED WHEN IT DECIDED THE MERITS OF THE MAIN CASE IN A
CERTIORARI PROCEEDING PRACTICALLY RENDERING ACADEMIC THE HEARING PROPER YET TO BE
CONDUCTED BY THE REGIONAL TRIAL COURT.

4. THE COURT OF APPEALS GRAVELY ERRED WHEN IT MADE FINDINGS OF FACTS ON THE BASIS OF THE
REPRESENTATION AND RECITAL OF FACTS MADE IN THE MFI PETITION AND PROCEEDED TO INTERPRET
THE MEMORANDUM OF UNDERTAKING WITHOUT CONSIDERING FACTS AND CIRCUMSTANCES
SURROUNDING ITS EXECUTION WHICH WERE YET TO BE ESTABLISHED IN A FULL BLOWN TRIAL.

The assignment of errors raises a single question: whether, in issuing a writ of preliminary mandatory
injunction ordering private respondent to allow petitioner to undertake excavations along the access
road for the purpose of installing water pipes, the Regional Trial Court gravely abused its discretion.

As held in Pelejo v. Court of Appeals, 18 to justify the issuance of the writ of preliminary mandatory
injunction the following must be shown: (1) that the complainant has a clear legal right; (2) that his right
has been violated and the invasion is material and substantial; and (3) that there is an urgent and
permanent necessity for the writ to prevent serious damage.

The right of the complainant must be clear and unmistakable because, unlike an ordinary preliminary
injunction, the writ of preliminary mandatory injunction requires the performance of a particular act or
acts 19 and thus tends to do more than maintain the status quo. 20 In the case at bar, petitioner
anchors its alleged right to the preliminary mandatory injunction on the Memorandum of Undertaking,
dated September 18, 1987, which provides that:chanrob1es virtual 1aw library

[T]he above-described lot, being an existing private road, will remain open to ingress and egress for
whatever kind of passage in favor of PROSPERITY FINANCIAL RESOURCES, INC. or its successors-in-
interest.

There is no question as to the meaning of the terms "ingress" and "egress." They give petitioner the
right to use the private road as a means of entry into and exit from its property on the northwestern
side of the compound. The question concerns the meaning of the phrase "for whatever kind of passage."
The trial court read this phrase to mean that petitioner had the right to make excavations on the side of
the access road in order to install a network of water pipes. The word "passage" does not, however,
"clearly and unmistakably" convey a meaning that includes a right to install water pipes on the access
road. The ordinary meaning of the word, as defined in Webster’s Dictionary, is that it is "the act or
action of passing: movement or transference from one place or point to another." 21 Its legal meaning is
not different. It means, according to Black’s Law Dictionary, the "act of passing; transit; transition." 22
To achieve a meaning such as that which petitioner proposes requires the consideration of evidence
showing the parties’ intention in using the word which can only be done during trial on the merits. Until
such time, petitioner cannot claim to have a "clear and unmistakable" right justifying the issuance of a
writ of preliminary mandatory injunction in this case. Thus, the trial court should have observed caution
and denied petitioner’s application for the preliminary writ.

Petitioner contends that resort should be made to facts surrounding the execution of the Memorandum
of Undertaking which, according to it, shows the intention of the parties to give petitioner the right to
install water pipes along the side of the access road. 23 It cites Rule 130 §11 24 of the 1964 Rules of
Court, which provides:chanrob1es virtual 1aw library

SECTION 11. Interpretation according to circumstances. — For the proper construction of an instrument,
the circumstances under which it was made, including the situation of the subject thereof and of the
parties to it, may be shown, so that the judge may be placed in the position of those whose language he
is to interpret.

495
That is precisely what we are saying. The recourse petitioner proposes must await the presentation of
the parties’ evidence during trial and the determination of their intention must be made by the trial
court, not by this Court. Petitioner cannot circumvent the process by asking this Court to determine the
facts surrounding the execution of their agreement. Indeed, for us to undertake such inquiry would be
to expand the scope of the present review and intrude into the domain of the trial court. Petitioner will
have ample opportunity to substantiate its allegations on this point during the trial of the case. Rule 130
§11, which petitioner invokes, is actually a rule for interpretation of documentary evidence formally
offered at the trial. It does not apply to preliminary proceedings concerning the issuance of ancillary
remedies.

Anent petitioner’s contention that the writ of certiorari does not lie because the error sought to be
corrected is an error of judgment, suffice it to say that the lower court acted with grave abuse of
discretion in issuing the writ of preliminary mandatory injunction despite the doubt on petitioner’s right
to it.

WHEREFORE, the decision of the Court of Appeals, dated November 26, 1993, and its resolution, dated
February 28, 1994, are hereby AFFIRMED.

SO ORDERED.chanroblesvirtuallawlibrary

Bellosillo, Puno and Martinez, JJ., concur.

G.R. No. 100199 January 18, 1993

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
PRUDENCIO DOMINGUEZ and RODOLFO MACALISANG, accused-appellants.

The Solicitor General for plaintiff-appellee.

Amadeo Seno for accused-appellants.

PER CURIAM:

Prudencio Dominguez and Rodolfo Macalisang, along with Roger C. Dominguez, were charged with the
murders of Regional Trial Court Judge Purita A. Boligor and of her brother Luther Avanceña. Prudencio
and Rodolfo were found guilty and sentenced to suffer the penalty of reclusion perpetua and to
indemnify the heirs of Judge Purita A. Boligor in the amount of P30,000.00 and the heirs of Luther
Avanceña of another P30,000.00, jointly and severally. At the same time, the trial court dismissed the
charges against Roger C. Dominguez for lack of sufficient evidence.

In their brief, accused-appellants assigned the following as errors allegedly committed by the trial court:

First error — the trial court gravely erred in giving credence to the prosecution's
evidence, particularly the testimony of Oscar Cagod, and basing its judgment of
conviction thereon.

Second error — the trial court gravely erred in refusing to give credence to the evidence
of the accused-appellants.

Third error — the trial court gravely erred in not acquitting the accused-appellants and
declaring them innocent of the charge against
1
them.

496
The facts as found by the trial court may be summarized in the following manner. Sometime after 8:00
o'clock in the evening of 6 February 1986, that is, on the eve of the "snap" presidential election held on
7 February 1986, appellant Prudencio Dominguez then Mayor of the Municipality of Sinacaban, Misamis
Occidental and his brother Roger C. Dominguez went to visit their second cousin, Judge Purita A. Boligor.
Judge Boligor, according to the defense, was promoting the candidacy of Mrs. Corazon C. Aquino, the
opposition candidate in the presidential race. Mayor Dominguez was affiliated with the "Kilusan ng
Bagong Lipunan" ("KBL") and was at that time working for the re-election of former President Marcos.
Mayor Dominguez and Roger arrived at Judge Boligor's house in Sinacaban in an Integrated National
Police ("INP") jeep driven by Felix Amis, a police officer detailed as security man of Mayor Dominguez.
Rodolfo Macalisang, brother-in-law of Mayor Dominguez, emerged on the leftside of the jeep, spoke
briefly with the Mayor, then stepped aside and stayed under the shadow of a citrus (calamansi) tree.
The Mayor and his brother Roger proceeded towards Judge Boligor's house and entered that house.
There they met with Judge Boligor and her brother Luther Avanceña who was then the UNIDO Chairman
in Sinacaban, Misamis Occidental. About ten (10) minutes later, Rodolfo Macalisang entered Judge
Boligor's house with an M-16 armalite automatic rifle and bursts of gunfire were heard. Shortly
thereafter, Mayor Dominguez and Roger ran out of the house, got into the jeep which had been waiting
for them and sped away. Macalisang then came out of the house and disappeared into the darkness.
Judge Boligor and Luther were found inside the house, with multiple bullet wounds in vital parts of their
bodies which caused their instantaneous death.

The prosecution's case rested mainly on the testimony of Oscar Cagod who witnessed the above
sequence of events from a store across the street. The defense, for its part, attacked the credibility and
the testimony of Oscar Cagod on the following grounds:

First, Cagod was not a disinterested witness, having lived in the house of Judge Boligor
for eighteen (18) to nineteen (19) years and having treated the Judge like his own
mother;

Second, Cagod waited for four (4) months after the slaying of Judge Boligor and Luther
Avanceña before he executed his sworn statement;

Third, Cagod, according to the defense, executed his sworn statement only after the
police authorities had arrested him and promised him immunity from prosecution. His
testimony therefore came from a polluted source and should be received only with
utmost caution.

Fourth, Cagod had been convicted, when he was twelve (12) years old, of murder, a
crime involving moral turpitude and accordingly his testimony deserved no credence.

Last, the defense assailed the testimony of Cagod as being incredible in itself.

We consider the above objections seriatim. We must note initially, however, that Oscar Cagod, the
prosecution star witness, was slain not long after he had testified on direct examination and on cross-
examination. So far as the record here is concerned, the killer or killers of witness Oscar Cagod remain
unknown. Another prosecution witness, Diosdado Avanceña brother of the two (2) deceased victims,
mysteriously disappeared after his direct examination. He could not be recalled to testify on cross-
examination and his testimony was stricken from the records by the trial judge upon motion of the
defense.

We find the first contention of appellants to be without merit. In a long line of cases, the Court has
consistently held that the relationship of a witness to a party to a case does not, by itself, impair the
credibility of the witness.2 In the instant case, assuming that Cagod had indeed treated the deceased
victim Judge Boligor like his own mother, that circumstance would only add to the weight of his
testimony, since he would then be most interested in seeing the real killers brought to justice rather
than in falsely implicating innocent persons. In People v. Uy, et al.,3 the Court explained:

. . . mere relationship to the victim need not automatically tarnish the testimony of the
witness. When there is no showing of improper motive on the part of the witnesses for

497
 testifying against the accused, the fact that they are related to the victim does not
render their clear and positive testimony less worthy of full faith and credit. On the
contrary, their natural interest in securing the conviction of the guilty would prevent
them from implicating persons other than the culprits, for otherwise, the latter would
thereby gain immunity.4 (Emphasis supplied).

In its second argument, the defense assails witness Cagod's credibility since he waited four (4) months
after the slaying before executing his sworn statement. The sworn statement was allegedly made by
Cagod after he had been arrested by Philippine Constabulary-Criminal Investigation Service ("PC-CIS")
operatives and placed under detention. The defense complains that prior thereto, Cagod had not
informed anyone about what he saw on the night of the slaying. It is settled, however, that delay on the
part of witnesses in informing the authorities of what they know about the occurrence of a crime will
not, by itself, affect their credibility, where such delay is satisfactorily explained.5 We consider that the
delay of four (4) months before prosecution witness Cagod executed his sworn statement should not
affect the credibility of his testimony. Cagod had understandable reasons for hesitating to report to the
authorities what he had seen. The accused in the instant case were clearly powerful and influential
persons in Sinacaban. Prudencio Dominguez, as already noted, was Mayor of Sinacaban and Roger
Dominguez was his brother. As Mayor, appellant Dominguez had armed men as personal bodyguards
and otherwise at his command. Appellant Rodolfo V. Macalisang was a PC Sergeant and Civilian Home
Defense Force ("CHDF") Supervisor. An alleged co-conspirator, Isidro Macalisang, was a Lieutenant of
the Armed Forces of the Philippines ("AFP"), while Josue Vente also an alleged co-conspirator, was a
Police Sergeant and Police Station Commander of Sinacaban. Cagod had been warned by Alfeo Lucing, a
CHDF member and a follower of Mayor Dominguez, and by appellant Macalisang himself, not to talk
about the shooting, upon pain of dire consequences.6 In People v. Bustarde, et al,7 the Court stated that
the

failure of the witness to go to the police immediately after the killing because she feared
for her life, is a factor which is entirely human and quite understandable, and should not
detract from her testimonial credit.8

In People v. Marmita, Jr.,9 the Court likewise sustained the credibility of the witness after the latter's
delay in identifying the accused was explained to have been due to fear of reprisal from the accused
who was known to be a powerful and influential person. In People v. Baring,10 witness explained that her
silence immediately after the slaying of her father was due to the fact that previous killings in the barrio
had not been given proper attention by the police authorities, and this Court ruled that her silence was
understandable and did not affect her credibility. The natural reluctance of most people to get involved
in a criminal case, and to volunteer information about a criminal case, is a mutter of judicial
notice. 11 We, therefore, agree with the trial judge when she rejected this argument of the defense,
saying:

Cagod's credibility also comes under fire for the reason that it took him four months
before he executed a statement revealing what he had witnessed on February 6, 1986.
As the defense would have it, be should have gone straight-away to Boligor's son or to
any member of the Boligor household with his story. The defense points out that
instead of doing so, Cagod went away to the ABC Hall to sleep until morning. This Court,
however, notes that it was not so, for Cagod related that he rushed away to inform a
cousin of Boligor, Mrs. Candelaria Gamotin, and that before he reached her house, Alfeo
Lucing, one of the Mayor's men, followed him warning him not to tell other stories
except that Boligor was dead.

That defense makes much of Cagod's conduct after the shooting of Boligor. Why did he
remain silent when everyone wanted to know who the malefactors were? Why indeed?
The defense forgets that the malefactors were not just any Tom, Dick and Harry — they
were, perhaps, the most powerful and influential men in the Municipality of Sinacaban.
Alfeo Lucing, who had shadowed Cagod, had already given stern warning. Cagod's fears
later took concrete shape when Macalisang (whose name, oddly enough, translates as
"terrifying") threatened him at gun point with dire consequences if he as much as
breathe a word of the incident. Was Cagod's conduct after the shooting natural,

498
 conforming to normal behavior? This Court believes that his conduct was as normal as
that of Mrs. Gamotin who, upon learning of Boligor's death, is not shown to have roused
up family, relatives and neighbors to succor the Boligors — the record only shows that
"they cried." Cagod's conduct was as normal as that of Dionisio Burlat, Engracia
Avanceña and Diosdado Avanceña who fled the Boligor house and remained holed up in
a neighbor's house till the following morning. Cagod's conduct was as normal as that of
neighbors who refused to succor the Boligor household.12

As to the third contention of the defense that Cagod's testimony came from a "polluted source" because
the sworn statement had been given after his arrest and after he had been promised immunity from
prosecution, the Court notes that there was no showing that the prosecuting authorities would have
included him in the criminal information. In other words, the record is bereft of any indication that
Cagod was a participant or co-conspirator in the carrying out of the crimes. Neither was there any
showing that Cagod had been promised or granted immunity from prosecution in consideration of his
executing the affidavit in question. Even if he had been promised or granted immunity, that in itself is no
indication of lack of truth or credibility in his testimony, considering that a person already charged in
court may be discharged from the information and utilized as a state witness under certain
conditions. 13 The defense also assails a supplemental affidavit executed by witness Cagod on 31 July
1986 as baseless and untrue and designed merely to reinforce the prosecution's theory. Cagod's first
affidavit lacked certain details which Cagod later supplied in a supplemental affidavit after more
clarificatory questions had been asked of him. In People v. Salvilla, 14 the Court held that the failure of a
prosecution witness to mention the taking, an essential element of the crime of robbery, in her sworn
statement did not militate against her credibility, considering that "an affidavit is almost always
incomplete and inaccurate and does not disclose the complete facts for want of inquiries and
suggestions."

In its fourth contention, the defense stresses that Oscar Cagod had been convicted of murder when he
was twelve (12) years old and insists that, therefore, Cagod's testimony "deserves no credence and must
be considered with extreme caution. 15 Initially, we note that Rule 130 of the Revised Rules of Court
provides as follows:

Sec. 20. Witnesses; their qualifications. — Except as provided in the next succeeding
section, all persons who can perceive, and perceiving, can make known their perception
to others, may be witnesses.

. . . [C]onviction of a crime unless otherwise provided by law, shall not be a ground for
disqualification. (Emphasis supplied).

In Cordial v. People, 16 this Court echoed the above cited provision of law stating that

even convicted criminals are not excluded from testifying in court so long as, having
organs of sense, they "can perceive and perceiving can make known their perceptions to
others. 17

The fact of prior criminal conviction alone does not suffice to discredit a witness; the testimony of such a
witness must be assayed and scrutinized in exactly the same way the testimony of other witnesses must
be examined for its relevance and credibility. None of the cases cited by the appellants militates against
this proposition.18

Oscar Cagod did not dispute his prior conviction for murder when he was only twelve (12) years old.
Because of his minority, instead of being imprisoned, he was placed under the custody of Judge Boligor
and her late husband, who was then Chief of Police of Sinacaban. Cagod lived with the for eighteen (18)
or nineteen (19) years until Judge Boligor was slain. During that period of time, Cagod had no record of
any bad or socially destructive behavior. He had in fact been of much help around the Boligors' house
and had in fact worked for appellant Mayor Dominguez himself as a motorcar driver.19 His testimony
was not in favor of an accused "comrade,"20 and Oscar Cagod, moreover, was obviously not a hardened
criminal.21 Taking account of these circumstances, the Court considers that Oscar Cagod's credibility was
not put in doubt by reason alone of conviction of a crime when he was twelve (12) years old.

499
In their final contention concerning the credibility of Oscar Cagod as a witness, the defense insists that
the testimony of Cagod was incredible in itself.

Cagod had testified that he was in the store across the street from Judge Boligor's house on the night of
the killing, because he had been about to get sample ballots of candidate Corazon C. Aquino from Judge
Boligor; but when he arrived at the latter's house, Judge Boligor told him to stay across the street
considering that Mayor Dominguez was coming to her house. And so Cagod was there across the street
from the Boligors' home and had an unobstructed view of the events as they unfolded outside the
Boligor house which events culminated in gunfire inside the house and the Mayor and Roger speeding
away from the Boligor house on the jeep which had waited for them and appellant Macalisang coming
out of Judge Boligor's house and fading away into the darkness while she and her brother Luther lay
dead in her house.

In addition, Oscar Cagod had testified that on the afternoon of that same day, while he was at the
market place in Sinacaban, Roger Dominguez (the Mayor's brother), Josue Vente (the Police Station
Commander of Sinacaban), Lt. Isidro Macalisang of AFP and the Mayor were on the terrace of the
Mayor's house fronting the Sinacaban Public Market. Josue Vente summoned him (Cagod), and so he
went up the stairs to the terrace. As he stepped on the terrace, he heard Mayor Dominguez saying
angrily: "I gave money to Purita [A. Boligor] and Luther (Avanceña) so they will not work during election,
they are hard-headed, better that these persons are taken care of." Cagod further testified that Josue
Vente ordered him to buy a pack of cigarettes and that when he returned to the terrace with the
cigarettes, he heard Mayor Dominguez say: "This is our agreement." Later, Mayor Dominguez ordered
his men to go to Barangay Sinonok to continue their election campaign efforts and they left in four (4)
motorcycles. Cagod stated that he heard the Mayor telling Roger over an hand-held radio to follow
Judge Purita Boligor and to apprise him (the Mayor) of her whereabouts periodically.22

The defense expended a great deal of effort assailing the above testimony of Oscar Cagod concerning
the goings-on on the terrace of the Mayor's house, the basic contention being that if the accused-
appellants were indeed to plan a conspiracy, they would not have been so "stupid" as to batch it in
broad day light within public view and within hearing distance of strangers, when they could have very
well gone inside the Mayor's house. It does not seem necessary for the Court to consider in detail the
arguments of the defense in this connection. For the trial court did not interpret the above testimony of
Oscar Cagod as showing conspiracy being hatched by the appellants and their associates while on the
Mayor's terrace. For the trial court ruled that:

. . . The Mayor at that precise time [need] not have been plotting a dastardly deed. He
could have been merely expressing his disgust or anger with Boligor and Luther . . .
nevertheless, . . . this Court is convinced that he (Cagod) was telling the facts as he had
actually heard and seen them. He had no motive to testify falsely.23

The evidence of the defense included ballistics reports (Exhibits "16" and "16-A") concerning twenty-
seven (27) empty cartridges retrieved from the scene of the crime. These twenty-seven (27) empty
cartridges or shells were, according to this ballistics report, examined and compared with twenty-four
(24) test cartridges submitted by the accused appellant and said to have been fired from eight (8) M-16
armalite rifles in the armory of the Sinacaban Police Force, including an M-16 rifle with Serial No. 162705
which allegedly was taken by appellant Macalisang from Wilfredo Daluz, a police officer and prosecution
witness. In those reports, PC T/Sgt. Rodolfo C. Burgos, a ballistic technician who had conducted the
examination, concluded that the twenty-seven (27) empty shells retrieved from the scene of the crime
had not been fired from any of the weapons from which the twenty-four (24) test cartridges had been
fired.24 According to the letter of PC Capt. Bonfilio Dacoco, Commanding Officer of the 466th Philippine
Constabulary Company, Ozamis City, dated 21 February 1986, which Sgt. Burgos read into the record
during the trial, the twenty-one (21) test shells had been fired from eight (8) long firearms of the
Sinacaban Police Force.25 The trial court, however, did not give much weight to this ballistic report
saying:

. . . Cagod's testimony that he had seen Macalisang enter and exit from the house of the
Boligor's moments before and after the shooting remains unshaken by Burgos's
testimony, especially when taken with the defense story.26

500
We agree with the trial court's appraisal that the testimony of Ballistic Technician Burgos did not have
the effect of overturning the testimony of Oscar Cagod. We note that the defense had not shown that
appellant Macalisang had no access to any M-16 rifle other than the eight (8) rifles of the Sinacaban
Police Force from which the twenty-one (21) test bullets were said to have been fired. The negative
allegation that Macalisang did not use any of the eight (8) M-16 rifles, particularly the rifle with Serial No.
162705, does not logically lead to the conclusion that Macalisang could not have used any other weapon
nor does it prove that he was not the assailant. All that the testimony of Sgt. Burgos tended to show was
that the murder weapon was not among the eight (8) rifles of the Sinacaban Police Force from which the
test shells were said to have been fired.

In addition to denying and assailing the testimony of the now deceased witness Oscar Cagod, the
appellants' raised the defense of alibi. In a long line of cases, this Court has held that for the defense of
alibi to prosper, it is not enough to show that the accused was somewhere else when the crime was
committed, but that the accused must further demonstrate that it was physically impossible for him to
have been at the scene of the crime at the time of the commission thereof.27 In the instant case, the
Mayor's argument was that when the shooting occurred, he was already outside the house of Judge
Boligor. Clearly, therefore, it was not impossible for him to have been at the scene of the crime. In fact,
he was only a few steps away, according to his own testimony, when Judge Boligor and her brother were
felled by automatic fire. Appellant Rodolfo Macalisang, the latter's Chief Security Officer, and as already
noted, Police Supervisor of the CHDF of Sinacaban, said that he had slept the whole night of 6 February
1986 (the eve of the "snap" presidential election) and that he knew nothing of the murder until the next
morning.28 This alibi was obviously a very weak one, considering that Macalisang's house was not only in
the same municipality but was indeed only "about 120 meters" away from Judge Boligor's house.29

The applicable doctrine is that the defense of "alibi is worthless in the face of positive identification by
the prosecution witnesses."30 In People v. Plandez,31 the Court stressed that:

. . . [A]libi — the much abused sanctuary of felons and which is considered as an

argument with a bad reputation, cannot prevail over positive testimonies of the
prosecution witnesses. It is, to say the least, the weakest defense and must be taken
with caution being easily fabricated. (Emphasis supplied).

In the instant case, Cagod did not, of course, see appellant Macalisang actually shooting Judge Boligor
and her brother inside her house. But Cagod did see Macalisang enter the Boligor house with a firearm,
hear automatic gunfire and later saw him leave the same house with a firearm and melt away in the
night. We hold that in the circumstances of this case, the testimony of prosecution witness Cagod was
sufficient to produce moral certainty of guilt on the part of both appellants. Clearly, here as in most
criminal cases, the issues before this Court relate to the credibility of the witnesses, particularly of Oscar
Cagod and of accused-appellants. It is true that the trial judge who wrote the decision, Judge Ma. Nimfa
Penaco-Sitaca, was not presiding over the trial court when Oscar Cagod rendered his testimony on direct
and on cross-examination. At the same time, it was before Judge Penaco-Sitaca that the prosecution
presented additional witnesses and before whom the defense presented all its evidence, both
testimonial and documentary and rested its case. Thus, Judge Penaco-Sitaca had observed the
deportment of the defense witnesses and their manner of testifying during the trial. The doctrine is
firmly settled that the trial court's conclusion on issues of credibility is accorded with highest respect by
appellate courts.32 We have examined carefully the record of this case before the trial court and the
briefs of both the appellants and the People and we
have found nothing to justify overturning the conclusions reached by Judge Penaco-Sitaca.

In its decision, the trial court found the presence of treachery as well as the generic aggravating
circumstances of dwelling and abuse of superior strength. The trial court said:

. . . [The mayor] had the motive. He called the shots. He occupied a position of
ascendancy over his brother-in-law and personal security officer, Macalisang, who, on
his own, would have no motive nor criminal design against the victims. . . . Macalisang's
armed entry into the house, immediately followed by the burst of gunfire, . . .
constituted a sudden, unexpected, treacherous attack of the victims who could not have

501
 had the slightest opportunity to defend themselves. Just as treacherous was the
Mayor's entry into the house under cover of civility and mirthful conversation.

It is very difficult to disagree with this finding of the trial court. We agree, further, that the aggravating
circumstance of dwelling was present, but believe that the circumstance of abuse of superior strength is
properly deemed absorbed by the qualifying circumstance of treachery. This modification, however, has
no effect upon the penalty properly imposable upon accused-appellants.

WHEREFORE, for all the foregoing, the decision of the trial court dated 10 May 1991 is hereby AFFIRMED,
except that the element of abuse of superior strength is properly disregarded, and except that the
indemnity imposable is hereby, in accord with current jurisprudence, RAISED to P50,000.00 for the
killing of Judge Purita A.. Boligor and another P50,000.00 for the slaying of Luther Avanceña. Costs
against appellants.

SO ORDERED.

Narvasa, C.J., Feliciano, Regalado, Nocon and Campos, Jr., JJ., concur.

G.R. No. 135368 February 9, 2000

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ALFREDO ENTILA y PINEDA alias "BOGIE", accused-appellant.

DE LEON, JR., J.:

Before us is an appeal from the Decision1 dated March 11, 1998 of Branch 26 of the Regional Trial Court
(RTC) of Manila finding appellant Alfredo Entila alias "Bogie" guilty beyond reasonable doubt of the
crime of kidnapping and sentencing him to suffer the penalty of reclusion perpetua.

The Information reads as follows:

The undersigned accuses ALFREDO ENTILA Y PINEDA of the crime of Kidnapping, committed as
follows:

That on or about and during the period comprised between December 15, 1995 and February 21,
1996, in the City of Manila, Philippines, the said accused, being then a private individual, did
then and there wilfully, unlawfully, feloniously, and illegally kidnap or detain or in any manner
deprive ten years (sic) old THERESA ADATO of her liberty and deliberately failed to return or
restore her to her guardian.

Contrary to law.2

Upon arraignment, appellant pleaded "not guilty"; and trial on the merits ensued.

Prosecution witness Araceli Mendiola testified that the victim, Theresa Adato, was entrusted to her
custody since 1995 by a friend;3 and that in 1995, her ten (10) year old ward was enrolled in the Justo
Lucban Elementary School in Paco, Manila. On December 19, 1995, Adato failed to come home, from
her afternoon classes, at the usual time of six o'clock in the evening. Worried by Adato's failure to come
home on time, Mendiola went to the school to look for her. When Mendiola arrived at the school at
6:30 in the evening, it was already closed. Outside the school, she met one of Adato's classmates who
informed her that he saw Adato forcibly being taken by a man. Mendiola immediately reported the
incident to the barangay authorities. But when the barangay authorities were unable to find Adato,
Mendiola sought the help of one SPO2 Conrado Quilala.4

SPO2 Conrado Quilala testified for the prosecution and stated that Mendiola approached him regarding
the case of Adato on January 29, 1996. At that time, he was an intelligence operative of the Task Force
Spider at Camp Bagong Diwa, Bicutan, Taguig. He invited Mendiola to file a formal complaint at the

502
police precinct in Bicutan, and Mendiola readily complied. Quilala then advised Mendiola to gather more
information pertaining to the whereabouts of her ward and the appellant.5

Later, Mendiola received a call from one Bobby Cabanero who was a housemate of appellant in
Tuguegarao, Cagayan informing her that appellant was there with Adato.6 Mendiola relayed this
information to Quilala on February 19, 1996.

Thereafter, a team, composed of Quilala, Captain Cabigas and SPO2 Camacho, was organized to rescue
Adato. The team then proceeded to Cagayan on February 21, 1996. Upon reaching Cagayan, they
proceeded to Barangay Bag-ay where appellant was renting a house. They were, however, informed that
appellant had already left for work at Barangay Abay and that Adato was with him.7

In Barangay Abay, the team found appellant in a shop where he was painting a car. They approached
him and informed him that Mendiola had filed a complaint against him. When asked about Adato, the
appellant replied that she was just within the vicinity playing "sungka". True enough, they found Adato
playing some fifty (50) meters away from the shop. The team arrested appellant on the spot and
brought him and Adato back to Manila.8

Adato narrated that on December 15, 1995, at around eleven o'clock in the morning, she was at the Jose
Lucban Elementary School. She saw appellant near the entrance of the market which is two (2) meters
away from the school gate. Appellant was familiar to her as they lived in the same house with Adato and
her guardian, Mendiola, occupying the second floor, and the appellant and his children staying in the
ground floor. Thus, when appellant summoned her, she readily approached the former. Thereupon, the
appellant pulled Adato inside the sidecar that he was driving.9 Then she was told by the appellant, to
keep quiet and he threatened to box her should she say anything.10 Appellant brought Adato to a house
in Mataas na Lupa near Paco which, Adato later came to know, was owned by appellant's friend,
Chit.11 On the way to Mataas na Lupa, Adato could not alight from the sidecar because appellant held
her whenever the traffic stopped. Appellant also discouraged Adato from shouting for help by telling her
that no one would be able to hear her.12

According to Adato, she was locked inside a room in Chit's house for more or less one (1) week. During
that time, she did not see appellant, and it was Chit who gave her food.13

Adato only saw appellant again when the latter fetched her and brought her to the bus terminal where
they were to board a bus for Tuguegarao. While waiting for their bus, Adato did not ask help from any of
the other passengers in the bus terminal since appellant had threatened her life before leaving Chit's
house.14

When they reached Tuguegarao, they initially stayed in the house of Bobby Cabanero who was
introduced to Adato as appellant's cousin. Appellant and Adato occupied one room in Cabanero's house.
Upon the appellant's instructions, Adato did not leave the room except to eat and to relieve herself.15

After a while, appellant and Adato transferred residence to a rented house in Barrio Bag-ay.16 While they
lived together, appellant repeatedly had sexual intercourse with Adato against her will. The appellant
first abused Adato sexually on January 15, 1996 and this continued until the policemen rescued her and
brought her home to Mendiola.17

For his part, appellant interposed the defense of denial and claimed that Adato voluntarily went with
him to Tuguegarao to escape the unhappy life she led under the care of her guardian, Mendiola.

Appellant testified that he was an overseas contract worker in Saudi Arabia from 1984 to March 15,
1995 when he returned to the Philippines after hearing of his wife's critical condition. After his wife's
demise on July 10, 1995, appellant decided not to go back to Saudi Arabia anymore. He stayed with his
children in their house in Paco, Manila. According to the accused-appellant, he rented out the second
floor of the said house to his cousin, Mendiola, who was living there with her family and ward, Adato.18

In the early morning of December 15, 1995, appellant informed his children that he was going to
Tuguegarao as his friend, Bobby Cabanero, had offered him a job there. His children agreed, and he

503
proceeded to his mother's house in Santiago Street, Paco, Manila, to ask for her blessing. Outside his
mother's house, he saw his cousin, Arvie Entila, driving a sidecar. He then asked Arvie Entila to bring him
to Quirino Highway where he planned to wait for a ride going to the bus terminal. Arvie Entila acceded
to his request and brought him to the highway. While appellant was waiting for a ride, Adato
approached him. According to appellant, Adato wanted to go with him, and when he told her to go back
to her foster mother, she replied that Mendiola and her husband had no business meddling in her life as
they were not her real parents. Adato also complained that she always quarreled with Pollard,
Mendiola's real son, who often taunted her: "salot ka, umalis ka dito" (you are a curse, go away). Taking
pity on Adato, appellant agreed to let her tag along.19

Appellant and Adato took the bus from Manila to Tuguegarao that same morning. Upon reaching
Tuguegarao, they proceeded to the house of Bobby Cabanero in Barrio Calita. According to appellant,
they talked about the car repair job that Cabanero had promised him,20 and that he and Adato stayed at
the residence of Cabanero for about two (2) weeks during which time, Adato slept in the room of
Cabanero's mother, while he stayed in the room of Cabanero's brothers.21

Thereafter, appellant proceeded to a repair shop in Barangay Bag-ay where the car repair job was
waiting for him. While working at the repair shop owned by a certain Vito, appellant stayed at a house
being rented by the niece of Vito while Adato stayed in a neighbor's house.22

One and a half weeks later, SPO2 Quilala arrived at Barangay Bag-ay with his companions. Quilala
informed appellant that Mendiola had filed a complaint against him for the kidnapping of Adato.
Appellant was stunned by the seriousness of Mendiola's charges, and although he denied the same to
Quilala, he readily acceded to the latter's request that he go back to Manila with them.23

Before going back to Manila, however, appellant was brought to the Tuguegarao Municipal Hall where
he was investigated by Colonel Peñalosa. Thereafter, appellant, together with Quilala's team and Adato,
bearded an Island Liner bus bound for Manila. When they reached Manila, they proceeded to Camp
Ricardo Papa in Bicutan, Taguig.24

Appellant was detained in Camp Ricardo Papa for two (2) days without an investigation being conducted
by the police officers. Thereafter, he was transferred to the Manila City Jail. Appellant claims that while
at the Manila City Jail, police officers forced him to affix his signature to a document, the contents of
which were not explained to him. The fiscal investigated appellant only after he had already been
detained for two (2) days.25

Arvie Entila corroborated the testimony of appellant that Adato voluntarily went with the former.

According to Entila, while he was driving his sidecar along Quirino Highway on December 14, 1995 at
around eleven o'clock in the morning, he saw Adato with a classmate. Entila who knew Adato as the
ward of his aunt, Mendiola, asked her why she was there, but he received no reply from the latter.26

Later that day, Entila heard that Mendiola27 was looking for Adato so he went to the house of Mendiola
to inform her that he had seen Adato along Quirino Highway. However, Mendiola did not react to
Entila's information.28

At around 8:30 in the evening of same day, Entila saw Mendiola walking along Santiago Street in Paco,
Manila. He asked her if Adato had already gone home, and Mendiola replied in the affirmative. On his
way out of Santiago Street, he met Adato who was apparently on her way home.29

The following day, at around 5:30 in the morning, Entila was outside his grandmother's house in
Santiago Street. While waiting for his grandmother, he saw his uncle, the appellant. The latter
approached him and told him that he was going to Olongapo to work there. Appellant then asked Entila
to inform his grandmother, that is, appellant's mother, about his plan to leave town.30

Appellant then requested Entila to take him to Quirino Highway where he planned to hail a cab. Entila
acceded and drove appellant to Quirino Highway. While appellant was waiting for a cab, Entila saw
Adato come out from behind some plants at the side of Lanuza Street. He overheard Adato asking

504
appellant to allow her to go with him because she was being given away by Mendiola. At first, appellant
refused, saying that Mendiola might get angry. However, when Adato cried, appellant eventually
succumbed to her pleas and took her with him.31

After weighing the evidence presented by both parties, the trial court found appellant's denial unworthy
of merit in the face of Adato's positive declaration that appellant forcibly brought her first to a friend's
house and then to Tugugarao, and deprived her of liberty for more than two (2) months. The trial court
thus declared that appellant's guilt of the crime of kidnapping has been established beyond reasonable
doubt. Accordingly, appellant was meted out the penalty of reclusion perpetua.32

Hence, this appeal where the appellant contends that:

The Court A Quo Erred:

1) In convicting appellant of the crime of Kidnapping; and

2) In the appreciation of the Evidence presented by the parties.33

We find for the accused-appellant.

At the outset, this Court observes that a material point of inconsistency has unfortunately been totally
disregarded by the trial court and even by the prosecution and defense. The actual date of the alleged
commission of the crime has been subject of varying testimonies.

During the direct and cross-examination of Mendiola, she consistently referred to December 19,
199534 as the day when Adato failed to come home from school. Thus, if Mendiola's testimony is to be
given any weight, then the accused-appellant kidnapped the victim on December 19, 1995, and held her
captive until February 21, 1996. However, Adato herself testified that the appellant kidnapped her
on December 15, 1995. In denying Adato's charges, appellant declared that Adato voluntarily went with
him on December 15, 1995, and this was corroborated by defense witness Arvie Entila.

Mendiola's sworn statements before the police authorities are likewise not helpful and merely add to
the confusion. On January 29, 1996, she executed a sworn statement before SPO2 Simplicio Robles of
the Philippine National Police at Camp Ricardo Papa, Taguig, Metro Manila where she said that her ward,
Adato, failed to come home on December 15, 1995.35 In a subsequent statement given to SPO1 Celso
Zapata also of the PNP at Camp Ricardo Papa, Mendiola reported that Adato had been missing
since December 19, 1995.36 Earlier, however, Mendiola had executed an affidavit of complaint against
appellant wherein she stated that Adato failed to return home on December 15, 1995.37

What baffles this Court even more is that the trial court completely ignored this discrepancy, and the
prosecution exerted no effort whatsoever to explain these inconsistencies.

This is not to say, however, that we are acquitting appellant solely on the basis of Mendiola's
inconsistent statements with respect to the date Adato failed to return home. But we acquit appellant
because a judicious review of the records of this case reveals that the defense had presented evidence,
which if given due credence by the trial court, would have been sufficient to acquit him on the ground of
reasonable doubt. We refer to the corroborative testimony of defense witness Arvie Entila.

Consistent with the appellant's allegation that Adato voluntarily accompanied him to Tuguegarao is the
following testimony of defense witness Arvie Entila:

Q On December 15, 1995 at about five thirty in the morning can you tell us where were
you, Mr. witness?

A I was at home, sir.

Q What were you doing at that time?

505
A I was about to bring my grandmother to the market.

Q By the way, Mr. witness, what is the exact address of your house?

A 1265 Santiago street.

Q While saiting (sic) for your grandmother what happened, if any, Mr. witness, at that
time?

A I fixed my sidecar.

Q While you were fixing your sidecar what happened, if any, Mr. witness?

A I saw my uncle.

Q What is the name of your uncle, Mr. witness?

A Alfredo Entila, sir.

Q What was he doing at that time when you saw him?

A He was carrying a TV set approaching me.

Q What did you do, Mr. witness, when you saw your uncle carrying a TV set.

A I asked him where he would go.

Q What was the answer of your, uncle?

A He said that he would go to Olongapo because he would work there.

Q You said that he was carrying a television set, will you tell us how big is that television
set?

A 21-inch TV set, sir.

Q What did you do when your uncle answered you that he will be going to Olongapo?

A I did not say anything.

Q After that what happened, if any?

A He asked for my grandmother.

Q What was your answer, if any, Mr. witness?

A I told him that she was upstairs.

Q What did your uncle do when you informed him that your grandmother was upstairs?

A He told me to inform my grandmother about his leaving.

Q Did you do that, Mr. witness, as requested?

A Yes, sir.

Q After that what happened?

506
A Alfredo requested me to bring him to Quirino Highway.

Q Did you bring him to Quirino Highway as per request?

A Yes, sir.

Q While at Quirino Highway what happened, if any, Mr. witness?

A He called a taxi.

Q After that what happened, what else happened, if any?

A Suddenly Teresa went out.

Q From where?

A At the side of the plants.

Q In what particular place, Mr. witness?

A Side of Lanuza street, sir.

Q What did Teresa do after you saw yer (sic) came (sic) out from Lanuza at the side of
Lanuza street?

A She wanted to go with Alfredo, my uncle.

Q How did she ask Alfredo Entila that she would go with him?

A she told my uncle that she was being given away by Chi.

Q What was the answer of Alfredo Entila of (sic) the information given to him?

A Alfredo told Teresa that Chi might get angry.

Q What did Teresa do after being informed that this Entila does not want Teresa to go with
him?

A She forced Alfredo.

Q What did Alfredo do, if any?

A Teresa was crying.

Q Did Alfredo eventually agree?

pros. icay

Leading, Your Honor.

defense counsel

I will reform.

court

Reform.

507
 defense counsel

Q What did Alfredo Entila do when Teresa Adato cried and informed him that she wanted
to go with him?

A Alfredo brought Teresa with him.

Q Do you know where?

A Olongapo.

Q Teresa Adato or Teresa testified here that she was forcibly taken by Alfredo Entila on
December 15, 1995 at about eleven o clock in the morning, what can you say about it, Mr.
witness?

A That is not true, sir.

Q Why do you say that Teresa Adato was not telling the truth when she said that she was
forcibly taken by Alfredo Entila on that particular date?

A I was the one who brought my uncle.38

The prosecution would have us believe that defense witness Arvie Entila's testimony was motivated by
nothing more than the natural desire to help the appellant who is his uncle. It is true that in most
instances, corroboration by relatives of an accused is accorded scant consideration in view of the truism
that blood is thicker than water.39 However, a witness' testimony cannot be stripped of full faith and
credit simply on account of his relationship to the parties.40 Although relationship can put the testimony
of a witness in doubt, it cannot affect credibility itself.41 The Judge should have subjected the testimony
of defense witness Arvie Entila to the ordinary process of evaluation and accordingly assigned to it the
proper intrinsic weight.42

Furthermore, the basis for disregarding Arvie Entila's testimony in this case, simply does not exist. It
should be remembered that defense witness Arvie Entila is related to the families of both the appellant
and Mendiola, guardian of Adato. While appellant is his uncle, Mendiola is also his aunt, being the first
cousin of his father.43 There is no indication whatsoever that defense witness Arvie Entila favored one
relative over another nor is then any proof that he harbored any improper motive to testify against
Mendiola or her ward.44 On the contrary, there exists evidence that defense witness Arvie Entila was just
as concerned over the welfare of his aunt's ward, Theresa Adato. Thus, having heard that Mendiola was
looking for Adato, Entila did not waste any time in informing Mendiola that he had seen Adato in
Quirino Highway. Later that day, Entila again asked about Adato. Hence:

Q Mr. witness, On December 14, 1995 at about eleven o (sic) clock in the morning can you
tell us where were you?

A I was in the market, sir.

Q Where is this market located, Mr. witness?

A In Paco, Manila, sir.

Q What were you doing at that particular place and time?

A I was driving my sidecar looking for passenger (sic), sir.

Q While thereat, Mr. witness, can you tell us what happened, if any?

A I have no passenger, sir.

508
Q So what did you do then, Mr. witness?

A So I went around, sir.

Q Where?

A Quirino Highway, sir.

Q Where is this Quirino Highway located, Mr. witness?

A Corner of Lanuza.

Q Is this located within Manila?

A Yes, sir.

Q While at Pres. Quirino Highway looking for passenger (sic) while you were driving your
pedicab what happened, if any?

A I saw Teresa, sir.

Q Who is this Teresa, Mr. witness?

A Chit was the one who was taking care of Teresa, a ward of Chit.

Q If this Teresa is here in court can you point her to us, Mr. witness?

A Yes, sir.

Q Will you (sic) please stand up and point her to us?

A There sir.

interpreter

Witness pointing to a person who when asked her name answered . . .

complainant

Teresa Adato.

defense counsel

Q What was Teresa doing when you saw her at Quirino Highway on December 14, 1995 at
about eleven o'clock in the morning?

A She was with her classmate sitting.

Q What did you do, Mr. witness, when you saw this Teresa Adato?

A I asked her why she was there.

Q What was her answer, Mr. witness?

A She did not answer.

509
Q At about four o'clock in the afternoon of the same date, Mr. witness, can you tell us
where were you?

A I was also still in the market.

Q What were you doing there, Mr. witness?

A Still waiting for passenger.

Q Were you able to get a passenger at that time?

A Yes, sir.

Q What happened when you were able to get that passenger?

A I brought them at (sic) Santiago street.

Q Where is this Santiago street?

A Paco, Manila, sir.

Q Were you able to bring that passenger of yours at (sic) Santiago street?

A Yes, sir.

pros. icay

Leading, Your Honor.

defense counsel

Already answered, Your Honor.

Q What happened when you arrived together with your passenger at Santiago street?

A I went to my aunt.

Q And where?

A 1238 Santiago street..

Q On your way to the house of your aunt what happened, if any, Mr. witness?

A I heard that Chi was looking for Teresa.

Q Who is this Chi?

A She is the one taking care of Teresa.

Q Is this Chi here in court now?

A No, sir.

Q What did you hear, Mr. witness, from Chi?

A That she was looking for Teresa.

510
Q Do you know the reason why this Chi was looking for Teresa?

pros. icay

Incompetent.

court

Witness may answer.

witness

A She did not come here.

defense counsel

Q What did you tell her when you heard that this Chi was looking for Teresa?

A I told her that I saw Teresa along Quirino Highway.

Q What was the reaction of this Chi, if any, when you tell (sic) her that you saw Teresa at
the Highway?

A No reaction, sir.

Q Mr. witness, at about eight thirty p.m. on the same date can you tell us where were
you?

A I was in the house of my aunt, sir.

Q While at the house of your aunt what happened, Mr. witness?

A I went out.

Q To where?

A I went out of Santiago street.

Q On your way out of Santiago strert (sic) will you tell us what happened, if any, Mr.
witness?

A I saw Chi.

Q what was Chi doing at that time, Mr. witness?

A She was walking.

Q What else happened, if any, Mr. witness?

A I asked Chi if Teresa has arrived.

Q What was the answer of Chi?

A And she answered yes.

Q What did you do after that, Mr. witness, if any?

511
 A I was on my way out of Santiago street when I saw Teresa.

Q What was Teresa doing then, Mr. witness?

A She is on her way home.

Q What did you do when you saw Teresa at that time?

A I told Teresa that you are really here.

Q what was the answer of Teresa, if any, Mr. witness?

A She did not answer.45

Even the testimonies of prosecution witnesses, SPO2 Quilala and SPO2 Camacho, show that Adato's
actuations were inconsistent with those expected of one who has been kidnapped.

SPO2 Camacho testified as follows:

Q you said that when you arrived in Cagayan you were able to contact Magno Quilang, is
that correct?

A no, the informant first.

Q But eventually you were able to contact Magno Quilang?

A yes, sir.

Q and in fact, you said you were able to talk to him?

A yes, sir.

Q did you ask him when did they start renting the place?

A no, sir.

Q and you said you proceeded to Barangay Bagay and you were able to see Entila?

A yes, maam.

Q and he even told you that the girl is just nearby playing?

A yes, maam.

Q can you describe the place where the girl was all gedly (sic) playing sungka?

A the house is very near the repair shop.

Q is this a close place?

A open place.

Q so, the child is free to go out?

A YES.

Q She wasnot (sic) detained atthat (sic) time?

512
 Q did the child told (sic) you that she was kidnapped, raped or sexually abused at the time
you saw her playing?

A no, maam. I did not ask.

Q But the child did not inform you of such fact?

A no, maam.46

Curiously, Adato did not exhibit any sign of hostility towards her alleged tormentor. On the contrary, she
prevented the police officers from handcuffing appellant during the trip from Tuguegarao to Manila.

SPO2 Quilala testified thus:

Q Is it not true also that this Adato requested you not to handcuff Entila?

A Yes, sir.

Q Why?

A I donot (sic) know, sir.

Q You said you reached Bicutan, at what date was that you arrived Bicutan, what date was
that?

A It was on the 22nd at about four thirty in the mornigg (sic).

Q As a veteran law enforcer, Mr. witness, the action of Entila and this Adato when you
found them in Tuguegarao is consistent with a woman or a child which (sic) has not been
detained or kidnapped, is that right?1âwphi1.nêt

A Yes, sir.47

Adato's compassion towards appellant is more consistent with a debt of gratitude felt for one who had
helped her escape a miserable life than anger and vengefulness at one who had taken her away from
home and repeatedly abused her.

In convicting the appellant, the trial court relied on the oft-cited rule that denial, like alibi, is a weak
defense since it is easily fabricated or concocted. There are nonetheless settled pronouncements of this
Court to the effect that where an accused sets up alibi, or denial for that matter, as his line of defense,
the courts should not at once look at the same with wary eyes for taken in the light of all the evidence
on record, it may be sufficient to reverse the outcome of the case as found by the trial court and
thereby rightly set the accused free.48 Furthermore, the defense of alibi or denial may assume
significance or strength when it is amply corroborated by a credible witness, as in the instant case.49

The trial court also pointed out that the defense had failed to establish any nefarious or sinister motive
on the part of the victim to impute the commission of a crime to the appellant. It should be noted,
however, that although Adato herself had no motive to falsely incriminate appellant, her guardian,
Mendiola, had an axe to grind against appellant.

That appellant and Mendiola were feuding over the ownership of the house they were occupying in
Paco, Manila is evident from their respective statements in open court.

Thus, appellant testified, thus:

Q do you know one Araceli Mendiola, Mr. witness?

A Yes, sir, my first cousin, sir.

513
Q Can you tell us . . .

A Araceli Pineda Mendiola.

Q where was she residing at that time, Mr. witness, in 1995?

A Just on the second floor of my house which I rented out.

Q You mean to say that you are the owner of the house which Araceli Mendiola was
occupying at the time?

A Yes, sir.

Q When you returned to the Philippines and after the death of your wife do you have any
occasion to talk with Araceli Mendiola regarding the lease of your property?

A No, sir, she just occupied the place.

Q My question, Mr. witness, is that did you have any occasion to talk with Araceli
Mendiola after the death of your wife regarding the lease of your property?

A Yes, sir.

Q What did you talk about, Mr. witness?

A about the rent of the house.

Q What did you tell her regarding the lease of your property?

A She said that if she has only available money that was the only time that she will pay me.

Q On December 14, 1995 Araceli Mendiola testified here before that she is the owner of
the house from (sic) which she was residing at the time and it was located on the second storey
(sic) of the place where you are residing, what can you say about that, Mr. witness?

A I am the owners (sic), sir.

Q Do you mean to say that this Araceli Mendiola was not telling the truth when she said or
testified that she is the owner of the place, Mr. witness?

pros. icay

Leading, Your Honor.

defense counsel

Point of clarification, your Honor.

court

Witness may answer.

witness

A That is not true, sir.

defense counsel

514
 Q what did you do when this Araceli Mendiola claims (sic) ownership over the house, over
the portion of the house which you said that you only rented to her, Mr. witness, if any?

A I did not agree to that situation, sir.

Q When you did not agree to that situation, Mr. witness, what did Araceli Mendiola do, if
any?

A She got mad at me.

Q How?

A She said that she introduced some improvements on the property.

court

Q Do you know what was that improvement?

Q What?

A The three G.I. sheets that she replaced, sir.50

On the other hand, Mendiola denied accused-appellant's ownership of the said house:

Q Madam witness, you are residing at 1238 Santiago St., Paco, Manila?

A Yes, sir.

Q And you are renting this place from theaccused (sic), is that right?

A No, sir.

Q And the accused is also residing at that place at 1238 Santiago St., Paco, Manila is that
right?

A Yes, sir.

Q And he is residing in that place because he is the owner of the house is that right?

A No, sir.

Q Will you please tell us why is it that he is residing in that address?

A He lives downstairs while I live on the second floor of the house, sir.51

It is therefore not altogether impossible, as alleged by the defense, that Adato was merely cajoled by
Mendiola into concocting the charges against appellant.

Defense witness Arvie Entila's testimony, coupled with the aforementioned circumstances, has
engendered in the mind of this Court a nagging doubt as to the guilt of the appellant. This uneasiness
has been spawned by the failure of the prosecution to convince this Court of appellant's guilt to that
degree of moral certitude that is indispensable for the conviction of an accused. Hence, we have held in
a long line of cases that if the inculpatory facts and circumstances are capable of two or more
explanations, one consistent with the innocence of the accused and the other consistent with his guilt,
then the evidence does not fulfill the test of moral certainty and is not sufficient to support a
conviction.52

515
WHEREFORE, the Decision of Branch 26 of the Regional Trial Court of Manila in Criminal Case No. 96-
147974 is REVERSED and SET ASIDE. The accused-appellant, Alfredo Entila Y Pineda alias "Bogie" is
hereby ACQUITTED on the ground that his guilt was not proven beyond reasonable doubt.

SO ORDERED.1âwphi1.nêt

Bellosillo, Mendoza, Quisumbing and Buena, JJ., concur.

G.R. No. 131357 April 12, 2000

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ERNESTO GARCHITORENA, Accused-Appellant.

PANGANIBAN, J.:

In resolving the sole issue raised by appellant, the Court relies on the time-tested doctrine that the trial
court's assessment of the credibility of witnesses should be upheld, if it is not tainted with arbitrariness
or oversight of some fact or circumstance of weight and influence which, if considered, would materially
affect the result of the case.

The Case

Filed before this Court is an appeal by Ernesto Garchitorena, who seeks reversal of the September 30,
1997 Decision 1 of the Regional Trial Court of Valenzuela, Metro Manila (Branch 171) in Criminal Case No.
5510-V-96. The Decision found him guilty of rape and sentenced him to reclusion perpetua.

In an Information 2 dated May 6, 1996, Assistant City Prosecutor Eriberto A. Aricheta charged appellant
with rape by means of force and intimidation. The Information reads as follows:

That on or about February 18, 1996 in Valenzuela, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, by means of force and intimidation employed upon the
person of one JENNIFER ACOSTA y ALEJO, did then and there wilfully, unlawfully and feloniously have
sexual intercourse with the said JENNIFER ACOSTA y ALEJO, against her will and without her consent.

Upon his arraignment, appellant pleaded not guilty. Trial proceeded in due course. Thereafter, the
court a quo rendered the assailed Decision, the dispositive portion of which reads:

WHEREFORE, finding accused Ernesto Garchitorena y Medina [g]uilty beyond reasonable doubt, he is
hereby sentenced to suffer the penalty of [r]eclusion [p]erpetua and to pay the costs.

Accused is likewise sentenced to indemnify the offended party the sum of P50,000.00. 3

The Facts

Version of the Prosecution

In its Brief, 4 the Office of the Solicitor General 5 presents the following narration of the facts:

Jennifer Acosta was nineteen (19) years old at the time she testified in court in 1996. Appellant is her
step grandfather, being the live-in partner of her paternal grandmother Rosalina Acosta. Rosalina is
separated from her husband. Rosalina and appellant took Jennifer to their custody when the latter was
only two (2) years old and until Jennifer was about ten (10) or eleven (11) years old. During that period,
however, Jennifer would reside alternately in her grandmother and appellant's house at No. 1078 Sta.
Monica Subdivision, Ugong, Valenzuela, Metro Manila and her parents' house at # 2007 La Mesa St.,
Ugong, Valenzuela. Rosalina and appellant's house is about two hundred (200) steps away, or about five
(5) minutes walk [from] Jennifer's parents' house.

516
Jennifer was ten (10) or eleven (11) years old when she resided permanently at her parents['] . . . house.
But Jennifer would still go to her grandmother's house when she would call for her. Sometimes
appellant would fetch Jennifer from her parents' house pretending that her grandmother needed her. If
Jennifer would refuse to go with appellant, Clarita would scold her. When she was ten (10) years old,
Jennifer noticed that appellant treated her differently, such as placing her on his lap, kissing her on the
neck or on the cheeks and touching her private parts. Jennifer calls appellant Daddy because her
grandmother told her to address appellant as such. According to Jennifer, appellant started raping her
when she reached the age of ten (10), but she could no longer remember how many times appellant
raped her. The rapes were committed not only in her grandmother's house but also in her parents'
house. She did not tell anyone about the rapes committed by appellant against her because he
threatened to kill her, her grandmother and sister should she (Jennifer) do so.

On February 18, 1996, a Sunday, Jennifer was at the chapel until 11:00 a.m. Thereafter she went home
[to] her parents' house and had lunch with her parents and sister. Around 1:00 p.m., she went to her
grandmother's house. When she arrived at her grandmother's house, appellant and her grandmother
were eating lunch at the kitchen. Since Jennifer had eaten her lunch, she took a little food at her
grandmother's house. The kitchen was at the back of the store owned by her grandmother and outside
the house. After eating, Jennifer went to the sala of the house and lay down on the sofa while appellant
left and her grandmother went to the store. The sala was about twenty (20) to twenty-five (25) meters
away from the store. The sofa where Jennifer had [lain] down [on] was beside a window. When one
opens the door of the house, one would immediately see the sofa. When Jennifer was lying on the sofa,
her head was towards the door, so she could not see the door. She had slept for less than an hour when
she was awakened by a kiss planted by appellant on her right cheek. Jennifer was then wearing a T-shirt
and a garterized short pants while appellant was wearing a T-shirt and pants. She could no longer
remember whether appellant wore long or short pants. When Jennifer opened her eyes, she saw
appellant on her right side and she uttered "Daddy". She attempted to stand up, but appellant's right
hand held her left hand and appellant kissed her on the lips. Jennifer could not do anything but cry. She
could not shout because she was afraid of him. Then, with his right hand, appellant touched her breasts.
Thereupon, appellant raised her T-shirt and her bra with his right hand and alternately kissed and
touched her exposed breasts. While appellant was doing all these to her, she constantly pleaded with
him to stop, but her plea was useless. Thereafter, appellant pulled down her garterized short pants and
panty. When her panty was removed, appellant touched her vagina with his right hand and inserted a
finger into her vagina. At this point, Jennifer closed her eyes and when she opened them she saw
appellant removing his brief. Appellant then placed himself on top of her and masturbated with his right
hand. As appellant was on top of her, he kissed her. Jennifer was repelled by that ("nadidiri ako sa
kanya"). Then appellant inserted his penis into her vagina. Suddenly, Jennifer's grandmother called out
to appellant. Appellant stood up, hurriedly fixed himself up and told Jennifer not to leave because he
would come back. But as soon as appellant left, Jennifer fixed herself up and went home.

When Jennifer arrived at her parent's house, she tried to act normally. But her mother asked why she
was frowning and she told her mother that she had a headache. Her mother became suspicious. Then
on March 30, 1996, her mother asked her if she had a problem. Jennifer did not answer until her mother
slapped her. Then Jennifer told her mother "Nanay, hirap na hirap na ako" and told her mother that
appellant was molesting her. Her mother said, "napakawalanghiya niya".

Dr. Noel Minay, a [m]edico-[l]egal [o]fficer of the National Bureau of Investigation, Manila conducted a
physical examination on Jennifer on April 2, 1996. Dr. Minay testified that there was no physical injury
on the body of Jennifer, but he found an old healed hymenal laceration at [the] 6 o'clock position. His
examination revealed that Jennifer was no longer physically [a] virgin. 6

Version of the Defense

In his Brief, 7 appellant did not present his version of the facts, but merely stated that Witnesses Rogelio
and Rosalinda Acosta both testified that complainant had gone to his residence several times after the
date when the alleged rape took place, and that there was thus no indication that the relationship
between him and complainant was strained or abnormal.

Ruling of the Trial Court

517
After examining the evidence presented by both the prosecution and the defense, as well as the
demeanor of the witnesses of both sides, the trial court concluded that the prosecution's account was
more credible.

The trial court accorded full faith to the victim's narration of the incident which occurred on February 18,
1996. It observed that a girl of tender age would not willingly falsify a rape charge. Her lack of sufficient
discretion and judgment, as well as the threats to her life and the lives of her sister and her
grandmother, prevented her from resisting appellant's advances, thus enabling him to perpetrate the
crime. The trial court also noted the findings of the medicolegal officer, which lent support to the fact
that rape had been committed against the victim.

Hence, this appeal. 8

Assignment of Errors

In his Brief, appellant interposes this lone assignment of error:

The trial court erred in convicting the accused on the basis of the incredible and conflicting statements
of the complainant and despite the positive testimony in favor of the accused. 9

The Court's Ruling

The appeal is devoid of merit.

Solitary Issue:

Credibility of the Witness

Appellant contends that the trial court misapplied the doctrine that a girl of tender age would not
disclose that she was raped if it were not true, arguing that complainant herein was already 19 years old
at the time of the rape. He also contends that her actions of going back to his house and even eating
with him after the supposed rape showed that it did not take place. Lastly, he argues that her Appellant
contends that the trial court misapplied the doctrine that a girl of tender age would not disclose that she
was raped if it were not true, arguing that complainant herein was already 19 years old. He further
contends that her testimony should not be believed because it contained many inconsistencies.

The contentions of appellant are incorrect. He was convicted on the basis of the victim's testimony
which the trial court deemed to be a true and honest narration of the events that occurred on that
fateful day. During direct examination, Jennifer clearly testified as to how she had been raped by her
grandfather, herein appellant. We quote hereunder the pertinent portion of her testimony:

FISCAL RAZON: (To the witness)

Q. Now, when he arrived, what happened?

A. He kissed me.

Q. Where were you kissed?

A. [On] my cheeks.

Q. And after you were kissed, what happened?

A. I was awakened. When I was about to stand up, he held my hands.

Q. And after holding your hands, what happened?

A. Then he again kissed me.

518
Q. Where were you kissed the second time?

A. [On] my lips.

Q. And after you were kissed on the lips, what did the accused do?

A. He touched my breast.

Q. By the way, how were you attired at that time?

A. I was wearing shorts and T-shirt.

Q. What about your bra, were you then wearing bra?

A. Yes, sir.

Q. Now you stated that the accused touched your breast, what happened after that?

A. While he was kissing me, he was holding my breast.

Q. [Which hand] of the accused was touching your breast?

A. Right hand.

Q. What about his left hand, what was his left hand doing?

A. His left hand was holding my hands.

Q. After your breast [was] touched, what happened?

A. When he stopped touching my breast, he pulled up my T-shirt.

Q. And after your T-shirt was pulled up, what happened?

A. Then he pulled up my bra.

Q. And after he pulled your bra, what did he do next?

A. He kissed my breast.

Q. And after kissing your breast, what did he do?

A. After cooling down, he pulled down my shorts.

Q. And after pulling down your shorts, what did he do?

A. He removed my panty.

Q. And after he removed your panty, what did he do?

A. He touched my vagina.

Q. And after touching your vagina, what did he do next?

A. He inserted his finger.

Q. And after he inserted his finger into your vagina, what did he do next, if any?

519
A. He contin[u]ously inserted his finger.

Q. And how was he attired at that time?

A. He was wearing [pants].

Q. And what was your position while this thing was being done to your person?

A. I was lying down, face up.

Q. And after he repeatedly inserted his finger into your vagina, what did he do next?

A. Then he released me and unbuttoned his pants.

Q. And after he unbuttoned his pants, what did he do?

A. He put [out] his private part.

Q. And after that, what did he do?

A. He kissed me and went back to me, and placed himself on top of me.

xxx xxx xxx

Q. When he placed himself on top of you, what did he do to you?

A. While he was kissing me, he was holding his penis and he was masturbating.

Q. After he had masturbated, what did he do, if any?

A. He inserted his penis into my vagina.

Q. Now, a while ago, you stated that he unbuttoned his pants, and brought out his penis[;] how far was
he from you?

A. He was just beside me.

Q. When he inserted his penis into your vagina, what was your feeling?

A. It was painful. 10

True, the statement of the complainant that she was ravished in the sala conflicted with that of Rogelio
Acosta who, testifying for the defense, claimed that he was watching television in the same place at that
time. After hearing the testimonies of both parties, however, the trial court attached greater weight and
credence to the testimony of the victim, Jennifer Acosta. This Court finds no compelling reason to
reverse or alter its holding. It is a time-tested doctrine that a trial court's assessment of the credibility of
a witness is entitled to great weight and is even conclusive and binding, if it is not tainted with
arbitrariness or oversight of some fact or circumstance of weight and influence. 11

Furthermore, the trial court found no motive for complainant to testify falsely against appellant who
was a close relative. In People v. Tidula, this Court stated that a witness' testimony against a blood
relative is given great weight, if it is not found to have been motivated by any ill will. The Court held:

A witness' testimony is accorded great weight, particularly when his or her accusation is directed against
a close relative. For one to prosecute a blood relative - especially when, as in this case, no ill or evil
motive is shown - goes beyond logic and normal human experience. 12

520
Appellant insists that Jennifer fabricated the rape charge, because she had felt that her grandparents
were too strict with her and her suitors. This allegation does not hold water, because no proof was ever
offered to substantiate it. Moreover, one does not fabricate so serious a charge as rape simply because
one's grandparents are strict, especially in this case wherein complainant was not even living with them
but only visited them from time to time. In any event, her testimony is corroborated by the findings of
the NBI medicolegal officer, 13 who found an old healed laceration in her sexual organ after conducting a
genital inspection.

In insisting that the trial court erred in finding that Jennifer did not resist, appellant is not correct either.
In rape cases, the force applied need not be irresistible. 14 It merely has to be enough to successfully
carry out the assailant's carnal desire. In the present case, appellant did apply sufficient force and
intimidation to consummate his lustful desire.

During her testimony, Jennifer stated that appellant held her hands while kissing her. Also, she
explained that she did not shout or ask for help because she was afraid, and that he threatened to kill
her grandmother and her sister. She testified as follows:

Q. Why did you not shout and ask for help from anybody?

A. I was afraid of him.

Q. Why were you afraid?

A. Because when he was doing that thing to me, when he was raping me, he told me that he [would] kill
my grandmother and my sister.

Q. And after the penis was inserted into your vagina, what happened?

A. When his penis was already inside my vagina, my grandmother shouted, calling him.

Q. You stated a while ago that your grandmother was inside?

A. Inside the store.

Q. How come that she was able to call on your grandfather[?]

A. Because the store was just outside . . . the house.

Q. How far was it [from] the house of your grandmother?

A. More or less ten (10) meters away. 15

Lastly, appellant's argument that complainant would not have returned to his house if the rape had
really occurred can also be easily dispensed with. She was reported to have been to appellant's house
after February 18, 1996, but prior to March 30, 1996. However, she told her mother about the rape only
on the latter date because she had at first been reluctant to talk about it out of either fear or
humiliation. Thus, prior to March 30, 1996, complainant had to pretend that everything was normal. Not
going to appellant's house which she was known to have frequented could have caused suspicion that
something was amiss.

It can be seen from her testimony, however, that she did not go to that house on the mentioned dates
without anyone accompanying her. She testified thus:

Q. [On w]hat other dates [did] you [see] Jennifer Acosta at the house of your mother?

A. On March 22, 1997 . . . my brother arrived from abroad[;] the next day March 23, 1996 Jennifer
Acosta went to our house.

521
Q. And who were the companion[s] of Jennifer Acosta when she arrived at the house of your mother on
March 23, if any?

A. She was accompanied by her father and her mother.

Q. Who else?

A. And he[r] sister.

Q. After March 23 was there any occasion [on which] Jennifer Acost[a] went to the house of your
mother?

A. From March 23 to March 29, 1996 they came to our [house] to play domino.

Q. And who was her companion at the time she returned on March 24 to March 29?

A. Her younger sister. 16

The trial court correctly awarded the amount of P50,000 by way of civil indemnity, which was
mandatory upon the finding of the fact of rape. 17 This Court likewise awards an additional sum of
P50,000 by way of moral damages. The fact that complainant has suffered trauma which constitutes the
basis for moral damages is too obvious to still require the victim's recital thereof at the trial. 18

WHEREFORE, the appeal is hereby DENIED and the Decision of the Regional Trial Court AFFIRMED, with
the modification that appellant is ordered to pay the victim the amount of P50,000 as moral damages, in
addition to the trial court's grant of P50,000 as indemnity ex delicto. Costs against appellant.

SO ORDERED.

Melo, Purisima and Gonzaga-Reyes, JJ., concur.

Vitug, J., abroad on official business.

[G.R. No. 130667. February 22, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ILDEFONSO VIRTUCIO JR. alias "Gaga", Accused-
Appellant.

DECISION

BELLOSILLO, J.:

An Information was filed on 8 April 1996 charging Ildefonso Virtucio, Jr. with murder for the death of
Alejandro Briones. To this day however the accused professes innocence.

The conviction of the accused was based on the following evidence of the prosecution: At around ten
o’clock in the evening of 31 March 1996 Alejandro Briones was standing outside his store in Mambaling,
Cebu City. He was watching his neighbors play "chikicha," a card game. Suddenly appearing from
nowhere accused Ildefonso Virtucio Jr. approached the store muttering, "Ako nasay andar karon kay
duna koy tawo nga nalagutan nga nagpa-raid nako sa shabu." 1 The accused then took out his gun and
fired downwards. Then without any provocation the accused aimed his gun at the head of Alejandro
Briones; the gun did not fire. Alejandro stood up and parried off the firearm. He asked Virtucio, "Unsa
man, Ga?" In answer, Virtucio fired his gun and this time Alejandro was hit on his stomach. Virtucio fired
another shot hitting Alejandro on his right forearm. Wounded and bleeding from his wounds, Alejandro
tried to run but Virtucio finished him off with a fatal shot on the head which sent the victim falling to the
ground.chanrobles.com : red

522
Betty Briones, wife of Alejandro, was in their store. She was just one and a half (1 1/2) meters away
from her husband when shot. She saw the startling occurrence as did their 12-year old son "Aly Boy"
who was playing outside the store.

With the help of their neighbors Alejandro was taken to the Cebu City Medical Center where he died
two (2) days later. Proximate cause of his death, according to his examining physician, was
"cardiopulmonary arrest secondary to pulmonary embolism with possible myocardial infraction and
fulminating sepsis secondary to multiple gunshot wounds. 2 For his hospitalization and medical
attendance, the Brioneses incurred expenses in the amount of P57,000.00.

Accused Virtucio interposed alibi for his defense. He alleged that as early as eleven o’clock in the
morning of 31 March 1996 he was already on his way to Tabuelan, Cebu, together with his business
partner, Pablo Cuer, to await the arrival of seashells from Escalante, Negros Occidental. They arrived in
Tabuelan at around four-thirty in the afternoon. He stayed in the house of Cuer until 2 April 1996 since
the seashells did not arrive on the expected date. During his stay in Tabuelan he shared the same room
with Cuer leaving the latter’s wife to sleep in another room.

On 2 April 1996 police authorities from the Tabuelan Police Station went to the Cuer residence and
invited the accused to their headquarters where he was subsequently detained. He came to know that
he was implicated in the killing of Alejandro Briones only on 3 April 1996. He could not think of any
reason why Betty and "Aly Boy" Briones would implicate him in the crime. In fact, the Brioneses were his
neighbors for three (3) years and they had maintained good relationship throughout those years. He
admitted though that one (1) month before the killing, the house of his common-law wife’s parents was
raided for shabu; however, he never blamed anyone for the incident.

Pablo Cuer corroborated the testimony of Virtucio. He said that once in Tabuelan, Cebu, the accused
never left their house as they even shared the same room, while his wife slept in another room. On 1
April 1996 they woke up at four-thirty in the morning and proceeded to the wharf to wait for the
seashells from Escalante, Negros Occidental. Since the seashells failed to arrive as scheduled Virtucio
had to stay with the Cuers for another night. In the afternoon of the following day, 2 April 1996,
Policeman Alfredo Arellano invited Virtucio to the police station where he was subsequently detained.
According to Cuer, he did not bother to give Virtucio some food while detained because he (Cuer)
returned to the wharf to get the seashells.

Fe Tesoro, mother of the common-law wife of the accused, testified that she asked the accused to go in
her stead to Tabuelan in the company of Pablo on 31 March 1996. So, Virtucio and Cuer left Cebu City at
about ten o’clock in the morning. The Tesoros likewise went to Tabuelan that same evening using their
old Tamaraw vehicle. They arrived at the house of the Cuers at around eleven o clock in the evening. Fe
Tesoro allegedly told the accused to go home as soon as the seashells were available, after which the
Tesoros returned to Cebu City arriving there at midnight. Fe denied knowing that her neighbor Alejandro
Briones was shot at the time she left for Tabuelan, Cebu. She insisted that she only knew about the
shooting of Alejandro the following day. As to the fact that Virtucio was a suspect, she testified that she
learned about it only on 2 April 1996 when the police authorities fetched him from Tabuelan, Cebu.

On 21 October 1996 the Regional Trial Court of Cebu City found Virtucio guilty of murder and sentenced
him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Alejandro Briones the
amount of P50,000.00. The court a quo disregarded the alibi of the accused in view of his positive
identification by the prosecution witnesses as the author of the crime. Besides, he miserably failed to
prove that it was physically impossible for him to have been at the crime scene at the time it was
committed.

The trial court found that evident premeditation and treachery qualified the killing to murder. The court
below ratiocinated that evident premeditation was present considering that the accused had harbored a
grudge against the victim, the latter being suspected of instigating the raid in the house of his common-
law wife’s mother. The court a quo concluded, in addition, that the killing was treacherous as it was
done in a sudden and unexpected manner, leaving the victim in no position to effectively defend
himself.chanrobles.com : red

523
Accused-appellant is now before us impugning the testimonies of the victim’s widow and son for
allegedly being "biased and polluted." He suggests that their testimonies be considered fabricated as
they were too harmonious with nary a hint of inconsistency in their narration of facts.

In resolving the issue of credibility of witnesses, we must yield to the oft-repeated rule that the trial
court’s evaluation of the testimony of a witness is accorded the highest respect because of its direct
opportunity to observe the witnesses on the stand and to determine if they are telling the truth or not. 3
Lacking any ground in questioning the discretion of the trial court, we consider its ruling on the
credibility of the witnesses as settled.

The witnesses’ relationship to the victim does not automatically affect the veracity of their testimonies.
No legal provision disqualifies relatives of the victim of a crime from testifying if they are competent.
That the prosecution’s eyewitnesses were the widow and son of the deceased, without more, is not
reason enough to disregard and label their testimonies as biased and unworthy of credence. Plainly,
relationship did not affect their credibility. 4 This Court is well aware that not too infrequently crimes
are committed with just the relatives of the victim as witnesses. 5

On the same note, the testimony of "Aly Boy" should not be discarded simply because he was a mere
child when he testified. A child is only disqualified if it can be shown that his mental maturity renders
him incapable of perceiving the facts respecting which he is being examined and of relating them
truthfully. 6 Once it is established that he understands or discerns the nature and character of an oath,
full faith and credit should be given to his testimony. The narration of "Aly Boy" was vivid and full of
details, stemming only from a recollection of what actually took place and not from a concocted story
impressed upon him by his mother, as insinuated by Accused-Appellant.

The prosecution witnesses positively identified accused-appellant as the author of the crime. Faced with
this positive identification, he could only offer the defense of denial and alibi. Denials, as negative and
self-serving evidence, do not deserve as much weight in law as a positive and affirmative testimony. 7
Alibi as a defense has an inverse relation to positive identification. It is regarded as the weakest and
most unreliable of all defenses especially in the light of clear and positive identification of the accused
by the prosecution witnesses against whom no motive to falsely testify against the accused can be
imputed. Alibi can only prosper by indubitably proving that the accused was somewhere else when the
crime was committed, and that he could not have been physically present at the locus criminis or its
immediate vicinity at the time of its commission; physical impossibility, in other words, of being in two
(2) places at the same time. 8

Accused-appellant’s defense that he was in Tabuelan, Cebu, when Briones was killed does not persuade.
The sequence of events is much too doubtful to be believed. His nonchalance upon being invited by the
police strikes us as unusual. His subsequent detention minus any vehement objection also baffles this
Court. Paradoxically, he claims innocence yet he has shown no signs of it. His contention that his
business partner Pablo Cuer fetched him contradicted Cuer’s and Tesoro’s testimony that he was asked
to accompany Cuer. Plainly, his alibi is riddled with inconsistencies.

The trial court, however, erred in appreciating the qualifying circumstance of evident premeditation.
The court below concluded that accused-appellant must have planned the killing considering that he
harbored a grudge against the deceased for quite some time. This basis falls short of the requirement
that the element of evident premeditation must, like the crime itself, be proved beyond reasonable
doubt. There is evident premeditation when the following are satisfactorily proved: (a) the time when
the appellant decided to commit the crime; (b) an overt act showing that the appellant clung to his
determination to commit the crime; and, (c) the lapse of sufficient period of time between the decision
and the execution of the crime, to allow the appellant to reflect upon the consequences of the act. 9
Other than the fact that accused-appellant had the motive to kill the victim, the prosecution in the
instant case miserably failed to establish that he plotted the killing of Briones and that he had sufficient
time to ponder over his plan. Notably, the proof of motive is no longer necessary in view of the positive
identification of accused-appellant as the assailant.

On the other hand, the court a quo properly appreciated the qualifying circumstance of treachery. The

524
essence of treachery is the sudden and unexpected attack without the slightest provocation on the part
of the person attacked. There is treachery when the attack on the victim was made without giving the
latter warning of any kind and thus rendering him unable to defend himself from an assailant’s
unexpected attack. While a victim may have been warned of a possible danger to his person, in
treachery, what is decisive is that the attack was executed in such a manner as to make it impossible for
the victim to retaliate. 10 In the case before us, the deceased was totally unaware of the impending
attack to his person. He was just standing outside their store watching some neighbors play cards.
Accused-appellant suddenly sprang from nowhere and without any provocation from the victim, shot
him at close range. The deceased was unarmed and defenseless when he was killed in cold blood.

The trial court failed to award actual damages to the heirs of the victim despite the testimony of the
widow that they incurred P57,000.00 for hospital and burial expenses. However, upon examination of
the records, we find that only P9,000.00 of the total P57,000.00 was sufficiently and competently
proved. Hence, the heirs of the deceased are entitled to an award of P9,000.00 as actual damages. On
the other hand, the trial court properly awarded P50,000.00 as civil indemnity without need of further
proof other than the death of the victim.

WHEREFORE, the Decision of the Regional Trial Court of Cebu City finding accused-appellant ILDEFONSO
VIRTUCIO JR. alias "Gaga" guilty of murder and sentencing him to suffer the penalty of reclusion
perpetua and to indemnify the heirs of Alejandro Briones the amount of P50,000.00 as civil indemnity is
AFFIRMED with the MODIFICATION that accused-appellant is additionally ordered to pay the heirs of the
deceased P9,000.00 as actual damages. Costs against Accused-Appellant.chanroblesvirtuallawlibrary

SO ORDERED.

Mendoza, Quisumbing and De Leon, Jr., JJ., concur.

Buena, J., on leave.

G.R. No. 110813 June 28, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ERNESTO PARDUA, ROGELIO PARDUA, GEORGE PARDUA, and WARLITO PARDUA, accused-appellants.

PARDO, J.:

The case is an appeal from the decision1 of the Regional Trial Court, Isabela, Roxas, Branch 23 convicting
accused Ernesto Pardua, Rogelio Pardua, George Pardua and Warlito Pardua of murder and sentencing
each of them to reclusion perpetua and to indemnify jointly and severally the heirs of the victim Toribio
Simpliciano in the amount of P62,000.00 as actual and compensatory damages, and an additional sum of
P150,000.00 as moral and exemplary damages and to pay the costs.

Only accused Ernesto Pardua was charged in the original information.2 On May 13, 1991, at the
arraignment, accused Ernesto Pardua pleaded not guilty to the crime charged.3

After the prosecution presented two witnesses, namely, Orlando Simpliciano and Alfredo Villanueva, on
May 21, 1991, the prosecution filed a motion to admit amended information to include accused Rogelio,
Warlito and George, all surnamed Pardua and one Robert dela Cruz, who remained at large.4

The two prosecution witnesses were recalled for the retaking of their testimony against the three other
accused. Of the two, only Orlando Simpliciano was presented for cross-examination because Alfredo
Villanueva could no longer be located.

On July 3, 1991, the trial court admitted the amended information filed by 4th Assistant Provincial
Prosecutor Efren M. Cacatian of Isabela,5 charging accused Ernesto Pardua, Rogelio Pardua @ Angkuan,
Warlito Pardua @ Pollit, George Pardua and Robert Dela Cruz with murder, committed as follows:

525
 "That on or about the 9th day of November, 1989, in the municipality of Roxas, province of
Isabela, Philippines and within the jurisdiction of this Honorable Court, the herein accused,
conspiring, confederating together and helping one another, with evident premeditation and
treachery, did then and there willfully, unlawfully and feloniously, with intent to kill suddenly
and unexpectedly and without giving him chance to defend himself, assault, attack, club and
hack with long bolos (panabas) one Toribio Simpliciano inflicting upon him multiple stab and
hack wounds on the different parts of his body which directly caused his instantaneous death
due to massive hemorrhage and skull fracture.

"CONTRARY TO LAW."

Upon arraignment on November 4, 1991, accused Rogelio Pardua and George Pardua entered a plea of
"not guilty" to the offense charged.6 Warlito Pardua, however, was arrested later on and was arraigned
on December 9, 1991. He, likewise, entered a plea of "not guilty."7 Robert de la Cruz remained at large.

The facts are as follows:

About 8:00 in the morning of November 9, 1989, Toribio Simpliciano and his hired farm hands, including
his nephews, Alfredo Villanueva and Orlando Simpliciano, were plowing Toribio’s rice field in Rang-ayan,
Roxas, Isabela. All five accused, riding on a trailer drawn by a "kuliglig" arrived at said place. Forthwith,
they jumped off the trailer and attacked Toribio. Rogelio Pardua hacked Toribio with a long bolo locally
known as "Tabas" hitting him on the neck and the hips while Warlito Pardua, then holding a piece of
wood known as "dos por dos", hit the hapless victim as the latter fell to the ground. Then too, George
Pardua and his brother-in-law Robert de la Cruz hit the fallen Toribio with their own long bolos while
Ernesto Pardua, armed with a shotgun called "quebrang" in the locality, mauled the victim and pointed
the same to Toribio’s farm companions to prevent them from coming to the rescue of Toribio.
Thereafter, the five assailants hurried back to their ride and left the scene. Seeing the assailants gone,
Toribio’s companions rushed him to the hospital, where he later expired.8

Leonora Simpliciano, widow of the victim, testified that while she was sweeping their yard in front of
their house that fateful morning, she overheard Atty. Bugarin talking with the accused Ernesto, Rogelio,
Warlito, George and Robert in the house of one Danny Jose. Atty. Bugaring, who resented his ejectment
from the house of Adora, daughter of Toribio and Leonora, told assailants that if they would kill Toribio,
he (Atty. Bugarin) would be responsible for them. Leonora then saw Danny Jose hand a firearm to
Rogelio. Sensing imminent danger to her husband’s life, she hastened to seek assistance from the police
but soon after she reached the police station, somebody arrived and frantically said her husband was
slain in the ricefield. She also suffered mental anguish and pain, she had sleepless nights and could
hardly eat.9

On November 10, 1989, Dr. Conrado L. Gabriel, Municipal Health Officer of Ilagan, Isabela, examined
Toribio Simpliciano and issued a post-mortem examination report.10 He testified there was a fracture on
the victim’s skull, possibly caused by a blunt instrument; head stab wounds, about two (2) centimeters
in length and one-half (1/2) inch depth, possibly caused by a sharp, triangular instrument; echymotic
swollen eyes, possibly caused by a hard blow in the eyes; wound cutting the nape of the neck around 6
and 7 inches long, 3 inches deep, almost separating the head from the body; wounds on the buttocks,
around 4 inches long and 3 inches deep. Cause of death: massive hemorrhage with skull fracture.11

Accused Ernesto Pardua invoked self-defense. He was an agricultural lessee of the riceland owned by
Toribio and the latter tried to wrest physical possession of the riceland. He narrated that on that
morning while he was fixing the dikes in the ricefield to let the water flow in, Toribio arrived with seven
others, some of whom were Esperidio Pillos, Orlando Simpliciano, and Pablo Obra. When they got down
from their tractors or "kuliglig", Toribio, armed with an air rifle and holding a fork with two blades,
pointed the gun at Ernesto, and told him to go home. Ernesto refused to leave the riceland where he
derived his income. Toribio fired the gun at Ernesto, hitting the latter on his right arm. Acting in self-
defense, Ernesto grabbed the gun and thereafter swung and hacked Toribio with the bolo or "panabas"
he (Ernesto) was holding at the time. Ernesto could not remember how many times he attacked Toribio
because he saw darkness. Finally seeing his victim fall, he wanted to surrender but because he was
afraid of a reprisal from Toribio’s companions, he took a passenger bus to Manila to escape.12

526
Rogelio Pardua and his son, George, denied participation in the killing, as they claimed that they
discerned trouble when they heard people shouting from Ernesto's ricefield but they did nothing
because they were busy working in their own ricefields. Rogelio, however, was the one who hailed the
tricycle that brought Toribio to the hospital.13

Warlito Pardua did not take the witness stand to deny his participation.

On April 27, 1993, the trial court rendered a decision,14 the dispositive portion of which reads:

"WHEREFORE, in the light of the foregoing findings and conclusions the Court believes and so
holds that the prosecution has ably and satisfactorily proved the guilt of the accused beyond any
iota of doubt as principals of the offense charged qualified by evident premeditation. Having
acted in conspiracy, the commission thereof attended by the following aggravating
circumstances: abuse of superior strength and in utter disregard of the due respect to their
elder, the deceased Toribio Simpliciano, and without any mitigating circumstance to offset the
same, the Court hereby sentences each and every one of them to suffer the penalty of Reclusion
Perpetua with all the accessory penalties provided for by law; to indemnify jointly and severally
the deceased victim Toribio Simpliciano the sum of P62,000.00 as actual and compensatory
damages, and an additional sum of P150,000.00 by way of moral and exemplary damages, and
to pay the costs.

"SO ORDERED."

Hence, this appeal.15

In their appeal, accused-appellants question the credibility of the prosecution witnesses. According to
them, only Ernesto committed the hacking that led to Toribio’s death and he did so to defend his
landholding from the unlawful entry of his brother-in-law, Toribio.

It is well settled that the findings of a trial court on the credibility of witnesses deserve great weight,
given the clear advantage of a trial judge over an appellate magistrate in the appreciation of testimonial
evidence. It is well-entrenched that the trial court is in the best position to assess the credibility of
witnesses and their testimonies because of its unique opportunity to observe the witnesses firsthand
and note their demeanor, conduct and attitude under grueling examination. These are the most
significant factors in evaluating the sincerity of witnesses and in unearthing the truth. In the absence of
any showing that the trial court’s calibration of credibility was flawed, we are bound by its assessment.16

We have carefully reviewed the testimonies of the witnesses both for the prosecution and the defense
as well as other evidence. We are convinced that the trial court correctly held that the accused-
appellants’ guilt was established beyond reasonable doubt. We have no reason to doubt the testimony
of Orlando and Juanito. They recounted details of the horrifying experience of seeing their uncle, Toribio,
killed, in a manner reflective of honest and unrehearsed testimony. Their candid, plain, straightforward
account of the untoward incident that happened in broad daylight and in an open field, was free of
significant inconsistencies, unshaken by rigid cross-examination.

Accused-appellants fault the trial court for considering the testimony of Juanito, who was not among
those present at the scene of the crime by Orlando and Alfredo, and whose name was not listed in the
information as among the prosecution witnesses. According to accused-appellants, Juanito’s testimony
is a fabrication, for he saw nothing of the incident which befell his uncle, Toribio.

The Court is not persuaded. As long as a person is qualified to become a witness, he may be presented
as one regardless of whether his name was included in the information or not.17

The reason why Juanito was not mentioned by Orlando and Alfredo as one of their companions at the
scene of the crime is explained by the fact that Juanito arrived in the farm later for the purpose of asking
his uncle, Toribio, to help him cultivate his farm. Juanito, however, failed to talk to his uncle because as
he was about to do so, the accused-appellants came and suddenly attacked Toribio; Juanito’s presence

527
could possibly not have been noticed by Orlando and Alfredo because their attention at that time was
focused on the startling occurrence that was unfolding before them.

Accused-appellants claimed that Orlando and Juanito were biased witnesses for they were nephews of
the victim. The prosecution could have presented other companions of the victim at the time of the
hacking incident, like Esperidion Pillos, Alfredo Villanueva, Bobot Pillos, Ely la Fuente and Mariano la
Fuente, who were not relatives of Toribio.

Accused-appellants’ contention deserves scant consideration. Mere relationship of Orlando and Juanito
to the victim does not automatically impair their credibility as to render their testimonies less worthy of
credence where no improper motive may be ascribed to them for testifying. In fact, a witness’
relationship to a victim, far from rendering his testimony biased, would even render it more credible as
it would be unnatural for a relative who is interested in vindicating the crime to accuse somebody other
than the real culprit.18

In like manner, Leonora’s testimony that she heard her brothers plan the killing of her husband,
deserves great weight and credence. In her desire to bring to justice her husband’s assailants, she would
not falsely impute to her own brothers the killing of her husband. This goes against the grain of human
nature and is therefore unlikely.

The failure of the other companions of the victim to testify is of no moment. The defense could have
presented them as their witnesses in order to ferret out the truth. The defense failed to do so.19

The defense belabored to point out an inconsistency in Orlando’s testimony, particularly with regard to
the participation of George. In his affidavit, Orlando stated that George was unarmed at the time Toribio
was hacked and that his participation, if any, was the boxing of Toribio. At the trial, however, he testified
that George also hacked Toribio.

The discrepancy is not substantial enough to impair the credibility of Orlando or impair the evidence for
the prosecution. Rather, such minor lapse manifests truthfulness and candor and erases suspicion of a
rehearsed testimony.20

The attempt to project the victim as the aggressor with appellant Ernesto acting in self-defense is self-
serving and a last minute afterthought. The evidence is bereft of any support for appellant’s claim that
the victim fired at him with an air rifle. No injury on the body of the appellant was shown. Furthermore,
if it were true that Toribio shot Ernesto with an air rifle and Ernesto, reacting to what Toribio had done,
hacked the latter in self-defense, Ernesto had no reason whatsoever not to divulge the same to his
lawyer who went to see him at the municipal jail after his arrest and during his detention there. Ernesto
related the information that he hacked his brother-in-law in legitimate self-defense only two years
thereafter, during the trial of this case.21 Such omissions lead to the conclusion that Ernesto’s story is a
pure fabrication.

Regarding the civil liability of the accused, the trial court ordered the accused to pay the heirs of Toribio
Simpliciano, the sum of P62,000.00 as actual and compensatory damages, and an additional sum of
P150,000.00 as moral damages and exemplary damages, and to pay the costs.

The trial court’s award of actual damages for funeral expenses in the amount of P62,000.00 is reduced
to P30,000.00. We find the expenses for the interment, amounting to P30,000.00, to be duly supported
by receipts. We have held that to justify an award of actual damages, there must be competent proof of
the amount of the loss. Credence can be given only to claims which are duly supported by receipts or
other credible evidence.22

As regards moral damages, Under current case law, P50,000.00 is a reasonable amount to award as
moral damages to the heirs of a victim in a murder case.23

However, civil indemnity is automatically awarded to the heirs of the victim without need of further
proof other than the death of the victim.24 Thus, we award the amount of P50,000.00 as civil indemnity
for the death of Toribio Simpliciano, in line with current jurisprudence.25

528
WHEREFORE, the decision of the Regional Trial Court, Branch 23, Roxas, Isabela,
is AFFIRMED with MODIFICATION. Accused-appellants Ernesto Pardua, Rogelio Pardua, George Pardua
and Warlito Pardua are found guilty beyond reasonable doubt of murder, and are each sentenced
to reclusion perpetua and all its accessory penalties. They are ordered to pay jointly and severally the
heirs of the victim Toribio Simpliciano in the amounts of P30,000.00 as actual damages, P50,000.00 as
moral damages and civil indemnity of P50,000.00 and costs.

SO ORDERED.1âwphi1.nêt

Davide, Jr., C.J., Puno, Kapunan, JJ., concur.

Ynares-Santiago, J., on official business abroad.

[A.M. No. MTJ-91-619. January 29, 1993.]

ATTY. HUGOLINO V. BALAYON, JR., Petitioner, v. JUDGE GAYDIFREDO O. OCAMPO, Respondent.

SYLLABUS

1. JUDICIAL ETHICS; ADMINISTRATIVE COMPLAINT AGAINST JUDGE; SERIOUS MISCONDUCT; EVIDENCE

REQUIRED TO SHOW EXISTENCE THEREOF. — In the case of Babatio v. Tan, this Court ruled that" (f)or
serious misconduct to exist, there must be reliable evidence showing that the judicial acts complained of
were corrupt or inspired by an intention to violate the law, or were in persistent disregard of all well-
known legal rules" .

2. ID.; ID.; MERE ERROR IN APPRECIATION OF EVIDENCE UNATTENDED BY BAD FAITH IRRELEVANT AND
IMMATERIAL IN ADMINISTRATIVE PROCEEDING AGAINST JUDGE. — In the case of Vda. de Zabal v.
Pamaran, this Court had the occasion to pronounce that mere errors in the appreciation of evidence,
unless so gross and patent as to produce an inference of ignorance or bad faith, or that the judge
knowingly rendered an unjust decision are irrelevant and immaterial in an administrative proceeding
against him.

3. ID.; ID.; JUDGE SHOULD EXERCISE DUE CARE IN PERFORMING ADJUDICATORY PREROGATIVES. —
Although a judge may not always be subjected to disciplinary action for an error of judgment or lack of
awareness of the appropriate legal rules, that does not mean that he should not exercise due care in
performing his adjudicatory prerogatives. He should study the principles of law and be diligent in
endeavoring to ascertain the facts.

4. ID.; ID.; NOT EVERY ERROR OF JUDGMENT ATTRIBUTABLE TO JUDGE’S IGNORANCE OF THE LAW. —
Not every error of judgment can be attributable to a judge’s ignorance of the law. Until the alleged error
shall have been properly raised on appeal and resolved by the proper appellate court, it is generally
premature to say that the error was due to the Judge’s ignorance of the law.

5. ID.; 1989 CODE OF JUDICIAL CONDUCT; JUDGES MAY NOT ENGAGE IN NOTARIAL WORK EXCEPT AS
NOTARIES PUBLIC EX-OFFICIO; EXCEPTION; CASE AT BAR. — The 1989 Code of Judicial Conduct not only
enjoins judges to regulate their extra-judicial activities in order to minimize the risk of conflict with their
judicial duties, but also prohibits them from engaging in the private practice of law. It is well settled that
municipal judges may not engage in notarial work except as notaries public ex-officio. As notaries public
ex-officio, they may engage only in the notarization of documents connected with the exercise of their
official functions. They may not, as such notaries public ex-officio, undertake the preparation and
acknowledgment of private documents, contracts and other acts of conveyance, which bear no relation
to the performance of their functions as judges. However, taking judicial notice of the fact that there are
still municipalities which have neither lawyers nor notaries public, the Supreme Court ruled that MTC
and MCTC judges assigned to municipalities or circuits with no lawyers or notaries public may, in their
capacity as notaries public ex-officio, perform any act within the competency of a regular notary public,
provided that: (1) all notarial fees charged be for the account of the Government and turned-over to the

529
municipal treasurer and (2) certification be made in the notarized documents attesting to the lack of any
lawyer or notary public in such municipality or circuit. In the case at bar, there are two notaries public in
respondent’s station at Tupi. That these two notaries public do not appear to be stationed regularly at
Tupi, as respondent Judge claims, does not suffice to qualify under the exception. It is only when there
are no lawyers or notaries public that the exception applies. For the unauthorized notarization of nine
private documents, respondent Judge is hereby ordered to pay the fine of TEN THOUSAND PESOS
(P10,000.00) with a warning that the commission of similar acts in the future will warrant a more severe
sanction.

6. ID.; ID.; UNDER CANON 2 THEREOF JUDGE SHOULD AVOID IMPROPRIETY AND APPEARANCE OF
IMPROPRIETY IN ALL ACTIVITIES; CASE AT BAR. — Under Cannon 2 of the 1989 Code of Judicial Conduct,
respondent Judge should avoid impropriety and the appearance of impropriety in all his activities. While
respondent Judge was found to have written the police station Commander of Tupi, South Cotabato in
good faith, he should refrain from engaging in such activity, and other similar ones, so as not to tarnish
the integrity and impartiality of the judiciary.

7. REMEDIAL LAW; COURTS; POWER AND DUTY OF EVERY COURT TO REVIEW AND AMEND OR REVERSE
ITS FINDINGS AND CONCLUSIONS. — Every court has the power and indeed the duly to review and
amend or reverse its findings and conclusions when its attention is timely called to any error or defect
therein.

8. ID.; RULES ON SUMMARY PROCEDURE; WITNESS WHO HAS NOT PROPERLY SUBMITTED AFFIDAVIT
MAY TESTIFY ON SPECIFIC FACTUAL MATTER RELEVANT TO THE ISSUE. — In Orino v. Judge Gervasio, the
Supreme Court ruled in a Minute Resolution that even if a witness has not priorly submitted his/her
affidavit, he may be called to testify in connection with a specific factual matter relevant to the issue.
Thus, a medical doctor whose medical certificate is among the evidence on record may be called to
testify. This also applies to a Register of Deeds or Provincial Assessor in connection with official
documents issued by his office.

9. ID.; DEMURRER TO EVIDENCE; JUDICIAL ACTION THEREON LEFT TO EXERCISE OF SOUND JUDICIAL
DISCRETION; WHEN MAY TRIAL COURT’S DENIAL OF MOTION TO DISMISS BE SET ASIDE. — Judicial
action on a motion to dismiss or demurrer to the evidence is left to the exercise of sound judicial
discretion. Unless there is a grave abuse thereof, amounting to lack of jurisdiction, the trial court’s
denial of a motion to dismiss may not be disturbed.

DECISION

CAMPOS, JR., J.:

For our consideration is a letter-complaint of Atty. Hugolino V. Balayon, Jr., dated October 9, 1991,
charging Judge Gaydifredo O. Ocampo of the Metropolitan Trial Court, Tupi, South Cotabato with gross
ignorance of the law and grave misconduct. The charge is grounded on eight complaints, separately
discussed as follows:chanrob1es virtual 1aw library

FIRST COMPLAINT :chanrob1es virtual 1aw library

The first complaint charges respondent Judge with gross ignorance of the law and grave misconduct.
The charge arose when one Ronilo Hijastro complained to respondent Judge about a certain Romeo
Panes (complainant’s client) who allegedly was withholding possession of some sacks of copra from
Ronilo Hijastro. Hijastro sought the help of respondent Judge for protection while his dispute with
Romeo Panes was on-going. Ronilo Hijastro was not interested in the services of a lawyer. What
respondent Judge did was to write one Lt. Sulam, the Police Station Commander of Tupi, South Cotabato,
to wit:jgc:chanrobles.com.ph

"December 7, 1989

530
Dear Lt. Sulam,

Bearer went to me for legal advice affecting the sacks of copras and other produce of the land in
possession by Mr. Ronilo Hijastro but who appears to be an illegitimate son of the late Mr. Juan Panes.

Mr. Romeo Panes is allegedly claiming the land and its produce as brother of Mr. Juan Panes. Romeo has
no right on it as he has no papers on the land notwithstanding being a brother of Juan Panes.

So, if Romeo shall force Ronilo or his tenant on the land to give the produce and possession of the land,
your Office can lend assistance to Mr. Ronilo Hijastro.

Thanks.chanrobles lawlibrary : rednad

(SGD.) JUDGE GAYDIFREDO OCAMPO" 1

Complainant contends that what respondent Judge did amounts to private practice which is in conflict
with his position of being a municipal judge. Complainant further accuses respondent Judge of using his
influence as incumbent Judge to pressure the Police Station Commander as a result of which the sacks of
copra were sold with respondent Judge reportedly having been given a share in the proceeds.

In his Comment, respondent Judge admits having written the aforequoted letter, but vehemently denies
the express insinuations by complainant of any ulterior motive on his part. He does not personally know
said Ronilo Hijastro as that was the first time respondent Judge met him in his sala. He advised him to
see a counsel who could lend him legal assistance on any proper case that may be filed, if he so desired,
but Hijastro, according to him, just wanted police assistance. While he might have fallen short of using
his discretion in writing the letter, he contends that he did the same in full and absolute good faith. He
denies having gotten a share of the sale of the sacks of copra.

We do not find respondent Judge guilty of grave misconduct: In the case of Babatio v. Tan, 2 this Court
ruled that" (f)or serious misconduct to exist, there must be reliable evidence showing that the judicial
acts complained of were corrupt or inspired by an intention to violate the law, or were in persistent
disregard of all well-known legal rules" .

In the case at bar, although respondent Judge admitted having written the letter dated December 7,
1989, there is no showing that he did so with the intention to violate the law. Neither is the charge that
he was reportedly given a share of the sale substantiated. Mere suspicion without proof cannot be a
basis for conviction. It should be pointed out, however, that under Cannon 2 of the Code of Judicial
Conduct, a judge should avoid impropriety and the appearance of impropriety in all activities. Hence,
respondent Judge is advised to conduct himself accordingly.

SECOND COMPLAINT :chanrob1es virtual 1aw library

On January 4, 1990, a Criminal Complaint for Qualified Theft as Principals and Accessories After-the-Fact,
docketed as Criminal Case No. 5016 entitled, "People v. Mario Sanso, Fernando Manggubat and Tony
Joven", was filed by Lt. Sulam before respondent Judge’s sala.

Tony Joven was charged as an accessory after-the-fact for allegedly having bought two (2) piglets which
were the proceeds of the crime.

On the same date, Lt. Sulam filed an application for search warrant attaching thereto the affidavit of one
Mario Lim as witness. Respondent Judge took the sworn statements of Lt. Sulam and Mario Lim and on
the basis thereof issued the search warrant.chanrobles virtual lawlibrary

The implementation of the search warrant resulted in the seizure of two piglets found at Tony Joven’s
backyard. Thereafter, respondent Judge issued a warrant of arrest against Tony Joven who was later
arrested and imprisoned but was released after posting the necessary bail.

531
It was only after his release that Tony Joven engaged the legal services of complainant.

On January 29, 1990, complainant filed an Urgent Motion to Quash Search Warrant and Warrant of
Arrest alleging that the same were illegally issued on the ground that the applicant and his witness have
no personal knowledge of the facts and circumstances which formed the basis for the issuance of said
warrants. Hence, in violation of his client’s constitutional rights.

On February 16, 1990, respondent Judge issued a resolution annulling the subject search warrant and
the proceedings held thereon after finding that the applicant and his witness did not have the personal
knowledge as required by law. With respect to the warrant of arrest, the same stood. Respondent Judge
scheduled the arraignment and trial of complainant’s client.

Complainant charges respondent Judge for alleged illegal issuance of a search warrant and warrant of
arrest.

In his Comment, respondent Judge contends that: "Notwithstanding the fact that the respondent in its
resolution . . . quashed the said search warrant, it does not mean that the (same was) at the outset
illegally and improvidently issued as it found a basis for its issuance as aforestated. The said resolution
was accomplished not solely on the basis of the said motion of complainant . . . but on the inherent
power of the Court to amend its orders and processes to conform to law and justice. Besides, the
resolution of respondent speaks for itself. Affecting the warrant of arrest which the complainant argued
should have been cancelled also together with the search warrant, respondent does not find basis in his
judicial discretion to do so. Complainant’s allegation of gross ignorance of law on the part of respondent
is therefore only his self-serving assertions of his personal view." 3

Respondent Judge further states that after complainant filed his said Urgent Motion, he inhibited
himself from continuing with the further proceeding of this case in the exercise of his sound discretion.
He added that the subject case had long been terminated by the Judge designated by Executive Judge
Rodolfo Soledad, RTC, Marbel, South Cotabato.

Complainant failed to show that there was malice or bad faith on the part of respondent Judge in issuing
the subject warrants.

Every court has the power and indeed the duly to review and amend or reverse its findings and
conclusions when its attention is timely called to any error or defect therein. 4 In the case at bar, the
motion to quash the search warrant and warrant of arrest filed by complainant was favorably
considered by respondent Judge which resulted in the quashal of the search warrant. The non-quashal
of the warrant of arrest was due to the fact that complainant’s client has already posted bail. Absent any
showing that respondent Judge acted with malice or bad faith in the issuance of the subject warrants,
the presumption is that official duty has been regularly performed by him.

THIRD COMPLAINT :chanrob1es virtual 1aw library

On December 4, 1990, a Criminal Complaint for Theft, docketed as Criminal Case No. 5123, entitled,
"People v. Norberto Solis and Jose Catapang", was filed by Lt. Sulam on the basis of the sworn
statements of two prosecution witnesses, namely, Antonio Dacayo and Buenaventura Condova, against
Jose Catapang and Norberto Solis accusing them of stealing pineapples belonging to DOLEFIL plantation
before the respondent Judge’s court.chanrobles virtual lawlibrary

Although respondent Judge was satisfied that there existed probable cause based on the sworn
statements of the prosecution witnesses, on December 20, 1990, respondent Judge conducted a
summary clarificatory examination of Romulo Severino, a jeepney driver, and one of the accused, Jose
Catapang. Thereafter, respondent Judge issued a warrant of arrest against Jose Catapang and Norberto
Solis.

On January 15, 1991, as shown in the return of the warrant of arrest, Jose Catapang was arrested and
detained at the municipal jail of Tupi. Norberto Solis was at large.

532
On January 23, 1991, the case was called for arraignment but was postponed since the accused had no
counsel. Complainant was appointed as his counsel-de-officio.

On February 11, 1991, complainant filed an Urgent Motion for Postponement of the arraignment.

On February 12, 1991, Accused posted bail and was released.

On February 21, 1991, Jose Catapang, with the assistance of complainant, was arraigned and pleaded
not guilty. After the arraignment, complainant manifested that he was filing a Motion to Dismiss.

On March 5, 1991, complainant filed an Urgent Motion to Dismiss on the ground that the arrest of
complainant’s client was unlawful.

On March 6, 1991, respondent Judge issued an Order dismissing the case.

On March 19, 1991, private prosecutor filed a Motion for Reconsideration of the Order of Dismissal.

Per Order of the same date, respondent Judge reconsidered his Order of dismissal.

On April 2, 1991, respondent Judge reiterated his previous Order of dismissal.

Private prosecutor filed with the RTC a petition for certiorari which was pending resolution at the time
this complaint was filed.

Complainant comes to this Court charging respondent Judge with gross ignorance of the law in ordering
the arrest of accused Jose Catapang on mere suspicion, hence, resulting in the illegal arrest and arbitrary
detention of the accused because the sworn statements of the two prosecution witnesses were not
based on their personal knowledge of facts and circumstances. Neither did the clarificatory
examinations conducted by respondent Judge on Romulo Severino and Jose Catapang point to the
accused as the persons who stole the pineapples.

Again, there is no showing that malice or bad faith attended the issuance of the warrant of arrest by the
respondent Judge.

As earlier mentioned, every court has the power and indeed the duty to amend or reverse its findings
and conclusions when its attention is timely called to any error or defect therein. 5 Let it be noted,
though, that this is the second complaint charging respondent Judge of issuing a search warrant and/or
warrant of arrest in violation of the requirement of personal knowledge of the facts and circumstances
by the applicant and his witnesses. This does not speak well of respondent Judge’s appreciation and
application of the law. It would be beneficial for both respondent Judge and those whose cases would
fall within his jurisdiction, if respondent updated himself with the law and the latest jurisprudence.

Respondent Judge is admonished to exercise more prudence and circumspection in the issuance of the
aforementioned warrants so as not to trample on the rights as guaranteed by the Constitution.

FOURTH COMPLAINT :chanrob1es virtual 1aw library

The complaint states that respondent Judge, with gross ignorance of the law, allowed a witness to
testify during the trial without previously submitting his affidavit as required under Section 14 of the
Rules on Summary Procedure. 6

In People v. Esther Ante, Criminal Case No. 5226 for Slight Physical Injuries, a prosecution witness who
had not previously submitted his affidavit was allowed by respondent Judge to testify during the trial,
over and above the objection of complainant. Complainant alleged that Section 14 of the Rules on
Summary Procedure expressly prohibits any witness, without exception, from testifying during the trial
without previously submitting his affidavit, citing the case of Gonzales v. Presiding Judge of Branch 1,
RTC of Bohol. 7

533
In Orino v. Judge Gervasio, 8 the Supreme Court ruled in a Minute Resolution that even if a witness has
not priorly submitted his/her affidavit, he may be called to testify in connection with a specific factual
matter relevant to the issue. Thus, a medical doctor whose medical certificate is among the evidence on
record may be called to testify. This also applies to a Register of Deeds or Provincial Assessor in
connection with official documents issued by his office. Respondent Judge may not therefore be held
guilty of ignorance of the law.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

FIFTH COMPLAINT :chanrob1es virtual 1aw library

The complaint alleges that respondent Judge continuously notarized documents not connected with the
exercise of his official functions and thus earning extra money out of the same, even if there were two
duly commissioned notaries public in the municipality, contrary to the Resolution of the Court En Banc
dated December 19, 1989.

In his Comment, respondent Judge contends that the power of the MTC and MTC judges to act as
notaries public ex-officio, contained in Circular No. 1-90 dated February 26, 1990, was received by him
on March 30, 1990.

Respondent Judge vehemently denies the alleged continuous notarization. He admits that he had
notarized six documents in 1990 and three documents in 1991. The aforesaid documents were notarized
by respondent Judge by reason of the unavailability of notaries public and the urgent need by the
parties therein. The fees thereon were paid to the Government as certified to by the Clerk of Court. 9

Respondent Judge admits that there are two lawyers and notaries public in his station at Tupi. They are
Atty. Neptali Solilapsi and the herein complainant. Although Atty. Solilapsi is a resident of Tupi and with
a law office thereat, he is rarely present by reason of almost daily appearance in the courts of the
province of South Cotabato and General Santos City, not to mention his occasional trips to Manila. On
the other hand, herein complainant, although residing in Tupi holds a law office at Marbel, South
Cotabato and goes home late in the afternoon or evening. They are therefore not in a position to render
regular legal services that may be asked of them in Tupi.

The 1989 Code of Judicial Conduct not only enjoins judges to regulate their extra-judicial activities in
order to minimize the risk of conflict with their judicial duties, but also prohibits them from engaging in
the private practice of law. 10

It is well settled that municipal judges may not engage in notarial work except as notaries public ex-
officio. As notaries public ex-officio, they may engage only in the notarization of documents connected
with the exercise of their official functions. They may not, as such notaries public ex-officio, undertake
the preparation and acknowledgment of private documents, contracts and other acts of conveyance,
which bear no relation to the performance of their functions as judges.

However, taking judicial notice of the fact that there are still municipalities which have neither lawyers
nor notaries public, the Supreme Court ruled that MTC and MCTC judges assigned to municipalities or
circuits with no lawyers or notaries public may, in their capacity as notaries public ex-officio, perform
any act within the competency of a regular notary public, provided that: (1) all notarial fees charged be
for the account of the Government and turned-over to the municipal treasurer and (2) certification be
made in the notarized documents attesting to the lack of any lawyer or notary public in such
municipality or circuit. 11

In the case at bar, there are two notaries public in respondent’s station at Tupi. That these two notaries
public do not appear to be stationed regularly at Tupi, as respondent Judge claims, does not suffice to
qualify under the exception. It is only when there are no lawyers or notaries public that the exception
applies.

For the unauthorized notarization of nine private documents, respondent Judge is hereby ordered to
pay the fine of TEN THOUSAND PESOS (P10,000.00) with a warning that the commission of similar acts in
the future will warrant a more severe sanction. 12

534
SIXTH COMPLAINT :chanrob1es virtual 1aw library

On May 15, 1989, a Criminal Complaint for grave threats against Joe Maliang was filed with the
respondent Judge’s sala. After the submission of the affidavits and counter-affidavits, respondent Judge
rendered a decision dated October 4, 1989 convicting the accused of light threats as defined and
penalized under Article 285, paragraph 2 of the Revised Penal Code. On October 16,
1989, Accused appealed to the Regional Trial Court. 11th Judicial Region, Branch 25, Koronadal, South
Cotabato. The Regional Trial Court rendered its decision dated July 19, 1990 reversing the respondent
Judge and acquitting the accused on reasonable doubt.

Complainant now contends that with acquittal of his client in the grave threats case, respondent Judge
had shown his utter lack of correct appreciation of evidence. It is also a manifestation of respondent
Judge’s habit of deciding cases on his own personal view and not based on the evidence adduced.

There is no showing that respondent Judge decided the case in bad faith. It will be noted that
complainant’s client was acquitted on reasonable doubt. Hence, there was evidence indicating that he
committed the crime but that the evidence presented by the prosecution was not enough to convict
complainant’s client beyond reasonable doubt.chanrobles.com:cralaw:red

In the case of Vda. de Zabal v. Pamaran. 13 this Court had the occasion to pronounce that mere errors in
the appreciation of evidence, unless so gross and patent as to produce an inference of ignorance or bad
faith, or that the judge knowingly rendered an unjust decision are irrelevant and immaterial in an
administrative proceeding against him.

SEVENTH COMPLAINT :chanrob1es virtual 1aw library

A letter-complaint 14 for theft, dated July 2, 1991, was filed by Rodolfo L. Lizada, in his capacity as Tupi
Municipal Agrarian Reform Officer, against Feliciano Angeles, et. al. This was based on the alleged illegal
taking by the accused of the galvanized iron roofing sheets of a government warehouse. Attached to the
letter-complaint were the affidavits and sworn statements of witnesses. 15

On July 17, 1991, respondent Judge conducted an ocular inspection and found the following:chanrob1es
virtual 1aw library

1. The galvanized iron roofings of the government warehouse were indeed missing.

2. A total of eighty-eight used galvanized iron sheets were found in the premises of accused Feliciano
Angeles. He was not around when the inspection team arrived.

3. Feliciano Angeles’ wife was present during the inspection. She informed the members of the
inspection team that five of the used galvanized iron sheets were used in roofing their house. However,
when Feliciano Angeles arrived, he corrected his wife’s statement, saying that a total of eight was
instead used by them.

On August 6, 1991, respondent Judge issued a resolution dismissing the case and remanded the records
thereof to the Office of the Provincial Prosecutor at Marbel, South Cotabato.

In dismissing the case, the respondent Judge ruled as follows:jgc:chanrobles.com.ph

"For all these acts of the accused, the Court does not find a prima facie case for Theft. The elements of
Theft are clear and firm. All must be present. Intent to gain as one of its basic elements was not
satisfactorily established as the subject GI sheets were not taken away from the premises but rather
found and kept therein by the accused for cogent reason of prevailing thievery (sic) at the place which
the prosecution did not dispute. The Court neither finds a case for malicious mischief as assuming a
damage was caused by the accused. There is no evidence that he deliberately and maliciously removed
the GI sheet roofings of the subject bodega but rather he did it with cogent reason as herein before
stated. The liability of the accused, if any, is civil in nature. The private complainant has other provisional
remedies to protect its interest." 16

535
In this seventh complaint, respondent Judge is being charged with gross ignorance of the law and grave
abuse of discretion. Complainant alleges that respondent Judge abused his discretion in dismissing the
case for theft and had no jurisdiction in ruling that no malicious mischief was committed considering
that the case at bar was for theft and that another one for malicious mischief was pending in his sala.
Complainant further accuses respondent Judge of having dismissed the case on the ground that one of
the accused, Normita Cornejo, is the daughter-in-law of respondent Judge’s good friend.

A reading of the ocular inspection report shows that all the elements of theft are present in the case.
Contrary to respondent Judge’s basis for dismissal, the element of intent to gain was present therein.
The wife of the accused admitted having used five galvanized iron sheets for their house. This was
reiterated by the accused Feliciano Angeles that not only five, but eight galvanized iron sheets, were
appropriated for their house. Hence, the dismissal of the case was not proper. However, complainant
still has the remedy of review by the provincial fiscal.

Although a judge may not always be subjected to disciplinary action for an error of judgment or lack of
awareness of the appropriate legal rules, that does not mean that he should not exercise due care in
performing his adjudicatory prerogatives. He should study the principles of law and be diligent in
endeavoring to ascertain the facts. 17

Respondent Judge is therefore admonished to exercise more prudence and circumspection in the
performance of his duties as municipal judge.

EIGHT COMPLAINT :chanrob1es virtual 1aw library

A Criminal Complaint for Theft docketed, as Criminal Case No. 5180, entitled, "People v. Julio Relativo
and Miller Estigoy", was filed before respondent Judge’s sala charging accused of stealing coconut trees.

After the prosecution had rested its case, complainant, as defense counsel, instead of presenting his
evidence, filed a Demurrer to the Evidence on June 4, 1991 alleging that the private complainant in said
case had no legal personality to sue because he was no longer the owner of the land where the coconut
trees were stolen, having failed to redeem the land from the Development Bank of the Philippines.

An Opposition to Demurrer to the Evidence, dated June 4, 1991, was filed by the prosecution.

On June 18, 1991, respondent Judge issued an Order denying the said Demurrer to the
Evidence.chanrobles law library : red

On June 29, 1991, complainant filed an Urgent Motion for Reconsideration.

On July 1, 1991, the prosecution was ordered to file its Comment on the Urgent Motion for
Reconsideration.

On July 11, 1991, the prosecution filed its Comment and Opposition to the Urgent Motion for
Reconsideration.

On July 17, 1991, the Motion for Reconsideration was denied by respondent Judge.

On August 12, 1991, complainant filed a Special Action for Certiorari with the Regional Trial Court
contending that respondent Judge committed grave abuse of discretion amounting to lack or excess of
jurisdiction in denying complainant’s Demurrer to the Evidence.

Complainant now charges respondent Judge with gross ignorance of the law and/or grave misconduct in
denying his Demurrer to the Evidence.

The charge of gross ignorance of the law and/or grave misconduct has no factual basis. Not every error
of judgment can be attributable to a judge’s ignorance of the law. Until the alleged error shall have been
properly raised on appeal and resolved by the proper appellate court, it is generally premature to say

536
that the error was due to the Judge’s ignorance of the law. 18

Judicial action on a motion to dismiss or demurrer to the evidence is left to the exercise of sound judicial
discretion. Unless there is a grave abuse thereof, amounting to lack of jurisdiction, the trial court’s
denial of a motion to dismiss may not be disturbed. 19

It will be noted that complainant had already filed a petition for certiorari with the Regional Trial Court.

IN SUMMARY, We resolved the eight complainants filed against respondent Judge as

follows:chanrob1es virtual 1aw library

FIRST COMPLAINT : Under Cannon 2 of the 1989 Code of Judicial Conduct, respondent Judge should
avoid impropriety and the appearance of impropriety in all his activities. While respondent Judge was
found to have written the police station Commander of Tupi, South Cotabato in good faith, he should
refrain from engaging in such activity, and other similar ones, so as not to tarnish the integrity and
impartiality of the judiciary.

SECOND COMPLAINT : There is no basis for the charge against respondent Judge of improperly issuing a
search warrant and a warrant of arrest in relation to Criminal Case No. 5016. The issuance was not
attended with malice or bad faith. The complaint is therefore hereby dismissed.

THIRD COMPLAINT : This being the second complaint against respondent Judge for alleged issuance of a
search warrant and/or a warrant of arrest in Criminal Case No. 5123 in violation of the requirement of
personal knowledge, respondent Judge is hereby admonished to exercise more circumspection and
prudence in the issuance of the said warrants so as not to unwittingly trample on the constitutionally
guaranteed rights of the accused.

FOURTH COMPLAINT : This complaint is dismissed. We hold respondent Judge not guilty of ignorance of
the law when he allowed a witness to testify despite his submission of an affidavit. This is well within the
Rules on Summary Procedure.

FIFTH COMPLAINT : For the unauthorized notarization of nine private documents, respondent Judge is
fined TEN THOUSAND PESOS (P10,000.00) with warning that the commission of similar acts in the future
will warrant a more severe sanction.

SIXTH COMPLAINT : This complaint is dismissed. That respondent Judge’s decision of convicting accused
in a criminal complaint for light threats was reversed on appeal on reasonable doubt is not an indication
of respondent Judge’s lack of correct appreciation of facts. A mere error in judgment is immaterial in an
administrative complaint against a judge absent any showing of bad faith.

SEVENTH COMPLAINT : There is enough evidence to hold respondent Judge remiss in the performance
of his duties as municipal judge when he dismissed a criminal case for theft filed with his sala for
preliminary investigation despite his own finding that there was intent to gain on the part of the accused
when they appropriated the galvanized iron sheets. Thus, respondent Judge is again admonished to
exercise more prudence and circumspection in the performance of his duties as municipal judge.

EIGHT COMPLAINT : The denial of a demurrer to the evidence is left to the sound discretion of the Court,
rather than an indication of ignorance of the law. It was well within the respondent Judge’s discretion,
absent any showing of bad faith or excess of jurisdiction, for him to have denied complainant’s
Demurrer to the Evidence in Criminal Case No. 5180. The complaint is therefore dismissed.

SO ORDERED.

Narvasa, C.J., Gutierrez, Jr., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero,
Nocon, Bellosillo and Melo, JJ., concur.

G.R. No. 145225 April 2, 2004

537
PEOPLE OF THE PHILIPPINES, appellee,
vs.
SALVADOR GOLIMLIM @ "BADONG", appellants.

DECISION

CARPIO MORALES, J.:

On appeal is the Decision1 of June 9, 2000 of the Regional Trial Court of Sorsogon, Sorsogon, Branch 65
in Criminal Case No. 241, finding appellant Salvador Golimlim alias "Badong" guilty beyond reasonable
doubt of rape, imposing on him the penalty of reclusion perpetua, and holding him civilly liable in the
amount of ₱50,000.00 as indemnity, and ₱50,000.00 as moral damages.

The Information dated April 16, 1997 filed against appellant reads as follows:

That sometime in the month of August, 1996, at Barangay Bical, Municipality of Bulan, Province
of Sorsogon, Philippines and within the jurisdiction of this Honorable Court the above-named
accused, armed with a bladed weapon, by means of violence and intimidation, did then and
there, wilfully, unlawfully and feloniously, have carnal knowledge of one Evelyn Canchela
against her will and without her consent, to her damage and prejudice.

Contrary to law.2

Upon arraignment on December 15, 1997,3 appellant, duly assisted by counsel, pleaded not guilty to the
offense charged.

The facts established by the prosecution are as follows:

Private complainant Evelyn G. Canchela (Evelyn), is a mental retardate. When her mother,
Amparo Hachero, left for Singapore on May 2, 1996 to work as a domestic helper, she entrusted
Evelyn to the care and custody of her (Amparo’s) sister Jovita Guban and her husband Salvador
Golimlim, herein appellant, at Barangay Bical, Bulan, Sorsogon.4

Sometime in August 1996, Jovita left the conjugal residence to meet a certain Rosing, 5 leaving Evelyn
with appellant. Taking advantage of the situation, appellant instructed private complainant to
sleep,6 and soon after she had laid down, he kissed her and took off her clothes.7 As he poked at her an
object which to Evelyn felt like a knife,8 he proceeded to insert his penis into her vagina.9 His lust
satisfied, appellant fell asleep.

When Jovita arrived, Evelyn told her about what appellant did to her. Jovita, however, did not believe
her and in fact she scolded her.10

Sometime in December of the same year, Lorna Hachero, Evelyn’s half-sister, received a letter from their
mother Amparo instructing her to fetch Evelyn from Sorsogon and allow her to stay in Novaliches,
Quezon City where she (Lorna) resided. Dutifully, Lorna immediately repaired to appellant’s home in
Bical, and brought Evelyn with her to Manila.

A week after she brought Evelyn to stay with her, Lorna suspected that her sister was pregnant as she
noticed her growing belly. She thereupon brought her to a doctor at the Pascual General Hospital at
Baeza, Novaliches, Quezon City for check-up and ultrasound examination.

Lorna’s suspicions were confirmed as the examinations revealed that Evelyn was indeed pregnant.11 She
thus asked her sister how she became pregnant, to which Evelyn replied that appellant had sexual
intercourse with her while holding a knife.12

In February of 1997, the sisters left for Bulan, Sorsogon for the purpose of filing a criminal complaint
against appellant. The police in Bulan, however, advised them to first have Evelyn examined. Obliging,
the two repaired on February 24, 1997 to the Municipal Health Office of Bulan, Sorsogon where Evelyn

538
was examined by Dr. Estrella Payoyo.13 The Medico-legal Report revealed the following findings,
quoted verbatim:

FINDINGS: LMP [last menstrual period]: Aug. 96 ?

Abd [abdomen]: 7 months AOG [age of gestation]

FHT [fetal heart tone]: 148/min

Presentation: Cephalic

Hymen: old laceration at 3, 5, 7, & 11 o’clock position14

On the same day, the sisters went back to the Investigation Section of the Bulan Municipal Police Station
before which they executed their sworn statements.15

On February 27, 1997, Evelyn, assisted by Lorna, filed a criminal complaint for rape16 against appellant
before the Municipal Trial Court of Bulan, Sorsogon, docketed as Criminal Case No. 6272.

In the meantime or on May 7, 1997, Evelyn gave birth to a girl, Joana Canchela, at Guruyan, Juban,
Sorsogon.17

Appellant, on being confronted with the accusation, simply said that it is not true "[b]ecause her mind is
not normal,"18 she having "mentioned many other names of men who ha[d] sexual intercourse with
her."19

Finding for the prosecution, the trial court, by the present appealed Decision, convicted appellant as
charged. The dispositive portion of the decision reads:

WHEREFORE, premises considered, accused Salvador Golimlim having been found guilty of the
crime of RAPE (Art. 335 R.P.C. as amended by RA 7659) beyond reasonable doubt is hereby
sentenced to suffer the penalty of RECLUSION PERPETUA, and to indemnify the offended party
Evelyn Canchela in the amount of P50,000.00 as indemnity and another P50,000.00 as moral
damage[s], and to pay the costs.

SO ORDERED.20

Hence, the present appeal, appellant assigning to the trial court the following errors:

I. THE COURT A QUO GRAVELY ERRED IN GIVING WEIGHT AND CREDENCE TO THE
CONTRADICTORY AND IMPLAUSIBLE TESTIMONY OF EVELYN CANCHELA, A MENTAL RETARDATE,
[AND]

II. THE COURT A QUO GRAVELY ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-
APPELLANT FOR THE CRIME CHARGED HAS BEEN PROVEN BEYOND REASONABLE DOUBT.21

Appellant argues that Evelyn’s testimony is not categorical and is replete with contradictions, thus
engendering grave doubts as to his criminal culpability.

In giving credence to Evelyn’s testimony and finding against appellant, the trial court made the following
observations, quoted verbatim:

1) Despite her weak and dull mental state the victim was consistent in her claim that her Papay
Badong (accused Salvador Golimlim) had carnal knowledge of her and was the author of her
pregnancy, and nobody else (See: For comparison her Sworn Statement on p. 3/Record; her
narration in the Psychiatric Report on pp. 47 & 48/Record; the TSNs of her testimony in open
court);

539
 2) She remains consistent that her Papay Badong raped her only once;

3) That the contradictory statements she made in open court relative to the details of how she
was raped, although would seem derogatory to her credibility and reliability as a witness under
normal conditions, were amply explained by the psychiatrist who examined her and supported
by her findings (See: Exhibits F to F-2);

4) Despite her claim that several persons laid on top of her (which is still subject to question
considering that the victim could not elaborate on its meaning), the lucid fact remains that she
never pointed to anybody else as the author of her pregnancy, but her Papay Badong. Which
only shows that the trauma that was created in her mind by the incident has remained printed
in her memory despite her weak mental state. Furthermore, granting for the sake of argument
that other men also laid on top of her, this does not deviate from the fact that her Papay
Badong (the accused) had sexual intercourse with her.22

The trial judge’s assessment of the credibility of witnesses’ testimonies is, as has repeatedly been held
by this Court, accorded great respect on appeal in the absence of grave abuse of discretion on its part, it
having had the advantage of actually examining both real and testimonial evidence including the
demeanor of the witnesses.23

In the present case, no cogent reason can be appreciated to warrant a departure from the findings of
the trial court with respect to the assessment of Evelyn’s testimony.

That Evelyn is a mental retardate does not disqualify her as a witness nor render her testimony bereft of
truth.

Sections 20 and 21 of Rule 130 of the Revised Rules of Court provide:

SEC. 20. Witnesses; their qualifications. – Except as provided in the next succeeding section, all
persons who can perceive, and perceiving, can make known their perception to others, may be
witnesses.

xxx

SEC. 21. Disqualification by reason of mental incapacity or immaturity. – The following persons
cannot be witnesses:

(a) Those whose mental condition, at the time of their production for examination, is such that
they are incapable of intelligently making known their perception to others;

(b) Children whose mental maturity is such as to render them incapable of perceiving the facts
respecting which they are examined and of relating them truthfully.

In People v. Trelles,24 where the trial court relied heavily on the therein mentally retarded private
complainant’s testimony irregardless of her "monosyllabic responses and vacillations between lucidity
and ambiguity," this Court held:

A mental retardate or a feebleminded person is not, per se, disqualified from being a witness,
her mental condition not being a vitiation of her credibility. It is now universally accepted that
intellectual weakness, no matter what form it assumes, is not a valid objection to the
competency of a witness so long as the latter can still give a fairly intelligent and reasonable
narrative of the matter testified to.25

It can not then be gainsaid that a mental retardate can be a witness, depending on his or her ability to
relate what he or she knows.26 If his or her testimony is coherent, the same is admissible in court.27

To be sure, modern rules on evidence have downgraded mental incapacity as a ground to disqualify a
witness. As observed by McCormick, the remedy of excluding such a witness who may be the only

540
person available who knows the facts, seems inept and primitive. Our rules follow the modern trend of
evidence.28

Thus, in a long line of cases,29 this Court has upheld the conviction of the accused based mainly on
statements given in court by the victim who was a mental retardate.

From a meticulous scrutiny of the records of this case, there is no reason to doubt Evelyn’s credibility. To
be sure, her testimony is not without discrepancies, given of course her feeblemindedness.

By the account of Dr. Chona Cuyos-Belmonte, Medical Specialist II at the Psychiatric Department of the
Bicol Medical Center, who examined Evelyn, although Evelyn was suffering from moderate mental
retardation with an IQ of 46,30 she is capable of perceiving and relating events which happened to her.
Thus the doctor testified:

Q: So do you try to impress that although she answers in general terms it does not necessarily
mean that she might be inventing answers – only that she could not go to the specific details
because of dullness?

A: I don’t think she was inventing her answer because I conducted mental status examination
for three (3) times and I tried to see the consistency in the narration but very poor (sic) in giving
details.

xxx

Q: May we know what she related to you?

A: She related to me that she was raped by her uncle ‘Tatay Badong’. What she mentioned was
that, and I quote: ‘hinila ang panty ko, pinasok ang pisot at bayag niya sa pipi ko’. She would
laugh inappropriately after telling me that particular incident. I also tried to ask her regarding
the dates, the time of the incident, but she could not really…. I tried to elicit those important
things, but the patient had a hard time remembering those dates.

Q: But considering that you have evaluated her mentally, gave her I.Q. test, in your honest
opinion, do you believe that this narration by the patient to you about the rape is reliable?

A: Yes, sir.

Q: Why do you consider that reliable?

A: Being a (sic) moderately retarded, I have noticed the spontaneity of her answers during the
time of the testing. She was not even hesitating when she told me she was raped once at home
by her Tatay Badong; and she was laughing when she told me about how it was done on (sic) her.
So, although she may be inappropriate but (sic) she was spontaneous, she was consistent.

Q: Now, I would like to relate to you an incident that happened in this Court for you to give us
your expert opinion. I tried to present the victim in this case to testify. While she testified that
she was raped by her uncle Badong, when asked about the details, thereof, she would not make
(sic) the detail. She only answered ‘wala’ (no). I ask this question because somehow this seems
related to your previous evaluation that while she gave an answer, she gave no detail. Now, I
was thinking because I am a man and I was the one asking and the Judge is a man also. And
while the mother would say that she would relate to her and she related to you, can you explain
to us why when she was presented in court that occurrence, that event happened?

A: There are a lot of possible answers to that question; one, is the court’s atmosphere itself. This
may have brought a little anxiety on the part of the patient and this inhibits her from
relating some of the details relative to the incident-in-question. When I conducted my interview
with the patient, there were only two (2) of us in the room. I normally do not ask this question
during the first session with the patient because these are emotionally leading questions, and I

541
 do not expect the patient to be very trusting. So, I usually ask this type of questions during the
later part of my examination to make her relax during my evaluation. So in this way, she will be
more cooperative with me. I don’t think that this kind of atmosphere within the courtroom with
some people around, this could have inhibited the patient from answering questions.

xxx

Q: What if the victim is being coached or led by someone else, will she be able to answer the
questions?

A: Yes, she may be able to answer the questions, but you would notice the inconsistency of the
answers because what we normally do is that we present the questions in different ways, and
we expect the same answer. This is how we try to evaluate the patient. If the person, especially
a retarded, is being coached by somebody, the answers will no longer be consistent.

Q: You also mentioned a while ago that the answers given by the patient, taken all in all, were
consistent?

A: Yes, sir.31 (Underscoring supplied)

As noted in the above-quoted testimony of Dr. Belmonte, Evelyn could give spontaneous and consistent
answers to the same but differently framed questions under conditions which do not inhibit her from
answering. It could have been in this light that Evelyn was able to relate in court, upon examination by a
female government prosecutor and the exclusion of the public from the proceedings, on Dr. Belmonte’s
suggestion,32 how, as quoted below, she was raped and that it was appellant who did it:

Q: Lorna Hachero testified before this Court that you gave birth to a baby girl named Johanna, is
this true?

A: (The witness nods, yes.)

xxx

Q: Who is the father of Johanna?

A: Papay Badong

Q: Who is this Papay Badong that you are referring to?

A: The husband of Mamay Bita.

Q: Is he here in court?

A: He is here.

Q: Please look around and point him to us.

A: (The witness pointing to the lone man sitting in the first row of the gallery wearing a regular
prison orange t-shirt who gave his name as Salvador Golimlim when asked.)

Q: Why were you able to say that it is Papay Badong who is the father of your child Johanna?

A: Because then I was left at Mamay Bita’s house, although I am not there now.

Q: And that house where you were left is also the house of your Papay Badong?

A: Yes ma’am.

542
Q: What did Salvador Golimlim or your Papay Badong do to you that’s why you were able to say
that he is the father of your child?

A: I was undressed by him.

xxx

Q: What did you do after you were undressed?

A: I was scolded by the wife, Mamay Bita.

Q: I am referring to that very moment when you were undressed. Immediately after your Papay
Badong undressed you, what did you do?

xxx

A: He laid on top of me.

Q: What was your position when he laid on top of you?

A: I was lying down.

Q: Then after he went on top of you, what did he do there?

A: He made (sic) sexual intercourse with me.

Q: When you said he had a (sic) sexual intercourse with you, what did he do exactly?

A: He kissed me.

Q: Where?

A: On the cheeks (witness motioning indicating her cheeks).

Q: What else did he do? Please describe before this Honorable Court the sexual intercourse
which you are referring to which the accused did to you.

A: ‘Initoy’ and he slept after that.

(to Court)

Nevertheless, may we request that the local term for sexual intercourse, the word ‘Initoy’ which
was used by the witness be put on the record, and we request judicial notice of the fact that
‘initoy’ is the local term for sexual intercourse.

xxx

Q: What did you feel when your Papay Badong had sexual intercourse with you?

A: I felt a knife; it was like a knife.

Q: Where did you feel that knife?

A: I forgot.

Q: Why did you allow your Papay Badong to have sexual intercourse with you?

543
 A: I will not consent to it.

xxx

Q: Did you like what he did to you?

A: I do not want it.

Q: But why did it happen?

A: I was forced to.

xxx

Q: Did you feel anything when he inserted into your vagina when your Papay Badong laid on top
of you?

A: His sexual organ/penis.

Q: How did you know that it was the penis of your Papay Badong that was entered into your
vagina?

A: It was put on top of me.

Q: Did it enter your vagina?

A: Yes, Your Honor.

xxx

Q: Madam Witness, is it true that your Papay Badong inserted his penis into your vagina or
sexual organ during that time that he was on top of you?

A: (The witness nods, yes.)33 (Underscoring supplied)

Appellant’s bare denial is not only an inherently weak defense. It is not supported by clear and
convincing evidence. It cannot thus prevail over the positive declaration of Evelyn who convincingly
identified him as her rapist.34

In convicting appellant under Article 335 of the Revised Penal Code, as amended by Republic Act 7659
(the law in force when the crime was committed in 1996), the trial court did not specify under which
mode the crime was committed. Under the said article, rape is committed thus:

ART. 335. When and how rape is committed. – Rape is committed by having carnal knowledge of
a woman under any of the following circumstances.

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

Whenever the crime of rape is committed with the use of a deadly weapon or by two or more
persons, the penalty shall be reclusion perpetua or death.

544
 xxx

It is settled that sexual intercourse with a woman who is a mental retardate constitutes statutory rape
which does not require proof that the accused used force or intimidation in having carnal knowledge of
the victim for conviction.35 The fact of Evelyn’s mental retardation was not, however, alleged in the
Information and, therefore, cannot be the basis for conviction. Such notwithstanding, that force and
intimidation attended the commission of the crime, the mode of commission alleged in the Information,
was adequately proven. It bears stating herein that the mental faculties of a retardate being different
from those of a normal person, the degree of force needed to overwhelm him or her is less. Hence, a
quantum of force which may not suffice when the victim is a normal person, may be more than enough
when employed against an imbecile.36

Still under the above-quoted provision of Art. 335 of the Rev ised Penal Code, when the crime of rape is
committed with the use of a deadly weapon, the penalty shall be reclusion perpetua to death. In the
case at bar, however, although there is adequate evidence showing that appellant indeed used force
and intimidation, that is not the case with respect to the use of a deadly weapon.

WHEREFORE, the assailed Decision of the Regional Trial Court of Sorsogon, Sorsogon, Branch 65 in
Criminal Case No. 241 finding appellant, Salvador Golimlim alias "Badong," GUILTY beyond reasonable
doubt of rape, which this Court finds to have been committed under paragraph 1, Article 335 of the
Revised Penal Code, and holding him civilly liable therefor, is hereby AFFIRMED.

Costs against appellant.

SO ORDERED.

Vitug, Sandoval-Gutierrez, and Corona, JJ., concur.

G.R. No. 136304. January 25, 2001

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROGER RAMA, Accused-Appellant.

DECISION

PUNO, J.:

The birth of the New Year in 1998 saw the loss of Roger and Eufemia Cabiguin's infant child, Joyce Ann
Cabiguin. For her loss, an information was filed against the accused Roger Rama, viz:

"That on or about the 1st day of January, 1998, in the City of Dagupan, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, ROGER RAMA, did then and there,
wilfully, unlawfully and feloniously kidnap JOYCE ANN CABIGUIN, a minor, one (1) year and six (6)
months old.

Contrary to Article 267, par. 4 of the Revised Penal Code."1cräläwvirtualibräry

The prosecution's story was gathered mainly from the testimony of five-year old Roxanne Cabiguin, a
cousin of Joyce Ann. On January 1, 1998, Roxanne, her sister Rose Ann, Mama Weng, Uncle Dony,
grandmother Diana, Joyce Ann and the latter's younger brother Pogi were at the Dagupan public plaza.
Roxanne played with her Uncle Dony, Rose Ann, and Joyce Ann at the plaza's stage while her Mama
Weng sat at the side of the stage, feeding Pogi. Mama Diana went to a store to buy some food.

At that time, the accused Rama and another man were also at the plaza. Rama called Roxanne and told
her that if she would bring the beautiful girl (referring to Joyce Ann) to him, he would give Roxanne a
biscuit. Rama gave her one biscuit. She ate it. She then carried Joyce Ann to the accused Rama who ran
away with little Joyce Ann. Roxanne told her Mama Weng and Mama Diana that Joyce Ann was taken by
a man. They looked for Joyce Ann and the man but they were nowhere to be found. During her

545
testimony, Roxanne pointed to the accused Rama as the man who took away Joyce
Ann. 2cräläwvirtualibräry

Roxanne's testimony was corroborated by Pierre Torio. On January 1, 1998, he was with his cousin and
niece at the Dagupan City plaza from about 1:15 p.m. to 4:30 p.m. Facing the stage, they sat on a bench
to its right. They were about nine to ten meters away from the stage. There were about seven children
playing on the stage. At about 1:30 p.m. to 2:00 p.m., the accused Rama entered the plaza and sat about
five to six meters away from them. He was with two other men and a pregnant woman. He entered the
plaza playground where many kids were playing. He stared at the children and looked confused, then
came out seemingly not knowing what to do, and approached the stage. But before he could reach the
stage, he returned to the playground. Subsequently, at about 2:45 p.m., a tall man asked Torio if he saw
the missing Joyce Ann. He replied that he saw the accused Rama acting suspiciously in the plaza. He did
not see though whether Rama took Joyce Ann. By this time, Rama was nowhere in
sight. 3cräläwvirtualibräry

On January 7, 1998, Torio's cousin called him up to go to the Dagupan City police station because the
person who took Joyce Ann was there. He was asked to identify the man he saw acting suspiciously at
the playground. The police pointed successively to the men sitting at the police station and each time
asked Torio if that was the suspicious-acting man. He replied in the negative. When the police pointed
the accused Rama, Torio confirmed that he was the man acting suspiciously. He gave a sworn statement
narrating what he saw on January 1, 1998 at the Dagupan plaza playground. On the witness stand, Torio
pointed to the accused Rama as the man who acted suspiciously at the playground. He affirmed that he
could not be mistaken because the accused Rama sat only about five to six meters away from
him. 4cräläwvirtualibräry

Diana Laviste Cabiguin, paternal grandmother of Joyce Ann, also testified. Along with Joyce Ann and
other relatives, she went to the Dagupan plaza on January 1, 1998. At the time Joyce Ann disappeared,
Diana went to McDonald's to buy some snacks. When she went back to her relatives, Joyce Ann was
already gone. One of the children playing in the plaza playground, Bryan Ocampo, informed Diana's
group that Joyce Anne was taken by a man. They searched in vain for the missing Joyce Ann. Two days
later, or on January 3, 1998, after receiving tips from the townspeople, Diana went to Binmaley,
Pangasinan, the vicinity where the accused lived. She was with a certain Elvira Sebastian, some
policemen, and three children at the plaza playing with Joyce Ann on January 1, 1998, namely: thirteen-
year old Bryan Ocampo, eleven-year old Benjamin Sarmiento, and Jesus Ulanday. When the group
reached the house of the accused Rama, they found the latter and his wife and their children sleeping.
They were permitted by the accused Rama to examine the premises of his house and to look for the
missing Joyce Anne. Their search was fruitless but all three kids pointed to the accused Rama as the
kidnapper. Jesus even urinated upon seeing the accused Rama because the latter spanked him when he
(Jesus) ran after Rama as the latter took away Joyce Ann. Rama threatened Jesus not to follow him or
else he (Rama) would throw a stone at him.

On January 5 or 6, 1998, Diana, Bryan, Benjamin, and Jesus went again to Binmaley. All three children
pointed again to the accused Rama as the man who took Joyce Anne. The three children did not,
however, take the witness stand. Bryan's parents were at first willing to let Bryan testify, but after
Rama's wife talked to them, they changed their mind. Benjamin's father was at first also willing to let his
child testify but later on had a change of heart for fear of their safety. 5cräläwvirtualibräry

Elvira Sebastian corroborated Diana Laviste's testimony. She testified that on the night of January 1,
1998, Diana, along with some policemen and three children who witnessed the taking of Joyce Ann, one
of whom was a certain Bryan, went to her house because the first suspect was her uncle, Eduardo
Sebastian. The children were asked if Eduardo was the kidnapper, but they answered in the negative.
Diana asked Elvira's assistance to find the kidnapper.

The following day, or on January 2, 1998, at about 9:00 a.m., Diana went back to Elvira's house. Elvira,
Diana, Bryan, Benjamin, and Jesus asked around about the missing Joyce Anne. Elvira learned from the
former manager of the fish business where the accused Rama worked that there were other instances of
kidnapping in the market place. She (the manager) informed Elvira that on January 1, 1998, she saw the
accused Rama with a child. The manager told Elvira that the latter might be familiar with Rama's face

546
because he was pushing carts of fish for a living and these cart pushers would usually buy doughnuts
from the store of Elvira's father. Elvira stayed behind to wait for the accused Rama at the manager's
store. The rest of Diana's group went to the National Bureau of Investigation. After an hour's wait in vain,
Elvira left. She returned the following day, but again, the accused Rama did not show up.

On January 3, 1998, Elvira went with Diana, Bryan, Benjamin, Jesus, Roger (father of Joyce Ann), and
some policemen to Rama's house. The children pointed to the accused Rama as the culprit. One of the
children whom the accused Rama spanked at the park during the taking of Joyce Ann even urinated out
of fright when he saw the accused. Despite the identification made by the children, the policemen did
not arrest Rama. This prompted Diana to go to the Philippine National Police - Criminal Investigation and
Detection Group (PNP-CIDG) in Dagupan City for the arrest of the accused Rama. The following day, she
and the children went to the Magsaysay market beside Mele's restaurant and saw again the accused
Rama. The children again pointed to the accused as the man behind Joyce Ann's taking. Rama
threatened them not to implicate him or he would kill them. The group left the place. She executed an
affidavit narrating the foregoing incidents. 6cräläwvirtualibräry

SPO3 Teofilo Ubando, investigator at the PNP-CIDG in Dagupan City, also took the witness stand. He
testified that on January 6, 1998, Roger and his wife, Eufemia, went to the CIDG office. They reported to
Ubando that the accused Rama kidnapped their daughter, Joyce Ann. Bryan and Benjamin who
witnessed the accused Rama take Joyce Ann, also went to the CIDG office. The two children informed
Ubando where the accused Rama lived. Eufemia, Ubando, Bryan, Benjamin, and other policemen went
to Rama's house in Binmaley, Pangasinan, while Roger was left in the office. They brought with them a
letter signed by Police Senior Inspector Rodolfo S. Azurin, Jr., Deputy Provincial Field Officer, inviting the
accused Rama to immediately appear before the CIDG in relation to the kidnapping of Joyce Ann. 7 Upon
reaching Rama's house, the group did not find him there. His wife told them that he was in Mele's
restaurant. Together with Rama's wife, the group proceeded to Mele's restaurant. At about 4:30 p.m.,
Rama arrived. The police presented to him the letter signed by Azurin and invited him to go to their
office. The accused Rama obliged. His wife went with him. When the group arrived in the CIDG office,
Rama signed the letter inviting him to the police station.

The following day, or on January 7, 1998, the police presented the accused Rama and four other persons
from their office in a police line-up. Benjamin and Bryan, and three other witnesses, Rose Anne Cabiguin,
Jesus Cabiguin, and Andrew Cabiguin, all pointed to the accused Rama as the man who took Joyce Ann.
Pictures were taken of Benjamin and Bryan, and Jesus Ulanday pointing to the accused Rama as the man
who took away Joyce Ann. 8 Sgt. Moyano and Sgt. Niro took the affidavits of Benjamin and Bryan. Roger
Cabiguin's statement was also taken. 9cräläwvirtualibräry

The accused Rama testified. From 1975 up to 1998, he was a cart pusher at the Magsaysay market in
Dagupan City. He would go to work at about 6:30 p.m. and go home at about 9:00 the following morning.
Fish vendors would usually hire him to carry their goods in his cart. On January 1, 1998, he was at home
in Binmaley, Pangasinan, the whole day. He fetched water, helped his wife wash clothes, and took care
of his youngest daughter. At 1:00 p.m. to 5:00 p.m., he went to sleep. He did not go to work in the
evening as his customers usually did not sell fish on New Year's Day. The next day, he again stayed in the
house. At 6:30 in the evening, he went to work and went home the following morning at 9:00. On
January 3, 1998, he went to work as usual. Upon arriving home the next morning, his wife told him that
at about 11:00 p.m. the previous night, some policemen went to their house looking for something. On
January 4, 1998, at about 11:00 in the evening, two policemen went to his house looking for a baby.
They were with an old woman whom Rama later on identified in the courtroom as Diana Laviste, a man,
Bryan and Benjamin. He let the group in. They did not find the baby they were looking for. The two
children stated that he (Rama) was not the man who took the missing Joyce Ann.

On January 5, 1998, Rama again went to work until 9:00 a.m. He arrived home at about 10:30 a.m. and
stayed there until 12:00 noon. He went to the city and watched a movie from 1:00 p.m. to 4:00 p.m. He
then proceeded to the Magsaysay market to get his cart. Thereupon, a CIDG member approached him
and asked him to go with his group because they were going to ask him some questions. He was asked
where he brought the missing Joyce Ann, but he denied taking the child. When he arrived at the CIDG
office in Tapuac, the CIDG members asked him to join a police line-up. Bryan and Benjamin were then
brought out and they pointed to the accused and said "It's him." At the latter part of his testimony,

547
however, the accused Rama testified that the children said, "It's not him." When shown Exhibit B-1, a
picture of two children pointing to him, the accused confirmed that the two children were Bryan and
Benjamin. Another unidentified child pointed to the accused Rama. Roxanne who later on testified in
court also pointed to him at the line-up. These children were not assisted when they identified him at
the police line-up. After investigation, Rama was asked to stay in the CIDG detachment from January 6
to 9, 1998, then he was transferred to Bonuan, then he was again brought back to the CIDG office. Rama
testified that he did not know of any reason why Diana Laviste and Roger Cabiguin filed a case against
him, why Bryan and Benjamin identified him as the culprit during the police line-up, and why Roxanne
identified him in court as the man who took Joyce Ann. He also did not have any grudge against Pierre
Torio. 10cräläwvirtualibräry

Violeta Cayabyab also testified in defense of the accused Rama. She was Rama's neighbor in Binmaley,
Pangasinan. She testified that on January 1, 1998, the accused Rama was in his house the whole day. On
cross-examination, however, she testified that as a vegetable vendor, she would leave Binmaley at dawn
and purchase her vegetables in Dagupan at about 3:00 a.m everyday. She would then sell her vegetables
in the morning and go home at about 11:00 a.m. She also testified that the accused Rama's family and
her family are good neighbors. They consider each other as part of the family. Between the accused
Rama and the private complainant, she admitted that she would side with Rama. 11cräläwvirtualibräry

Edilberto Aguada took the witness stand. He is a canteen owner and the person from whom the accused
Rama had been getting his cart for two years. On January 1, 1998, the accused Rama reported for work
in the evening. He also worked in the evening of January 2, 1998. On cross-examination, however, he
admitted that he did not see the accused Rama until evening on January 1, 1998. The same was true of
January 2, 1998. He admitted that he did not know what the accused Rama did on those
days. 12cräläwvirtualibräry

SPO4 Reynaldo de Vera of the Dagupan City Police Station also testified. On January 1, 1998, Diana
Laviste reported the kidnapping of Joyce Ann Cabiguin. On January 4, 1998, Diana, along with Roger,
went back to the police station and informed them that the children who were witnesses to the
kidnapping of Joyce Ann lived in Pantal. De Vera, SPO2 Cesar Calimag, Diana, and Roger went to Pantal
to pick up the children. The group then went to the house of the accused Rama in Gayaman, Binmaley.
When they saw the accused Rama in his house and the two children were asked if he was the man who
took away Joyce Ann, they answered that he was not the one. The police asked the children to further
examine the face of the accused Rama, but the children confirmed that it was not him. The group then
left the house and proceeded back to the police station. De Vera did not make any written record of the
identification process. The police likewise no longer followed up the case of the missing Joyce
Ann. 13cräläwvirtualibräry

The trial court gave credence to the prosecution's story. It convicted the accused Rama, viz:

"WHEREFORE, the accused is hereby found guilty beyond reasonable doubt of the offense charged as
defined and penalized by Article 267 of the Revised Penal Code, as amended by R.A. No. 7659, and is
hereby sentenced to suffer the penalty of reclusion perpetua and to pay the parents of the victim the
amount of P100,000.00 as moral damages and another amount of P20,000.00 as temperate or
moderate damages. Considering that reclusion perpetua shall be from twenty years and one day to forty
years (Art. 27, RA 7659), the period within which he has been placed under detention shall be deducted
from his sentence."14cräläwvirtualibräry

Hence this appeal by the accused Rama on the following grounds:

I.

THE TRIAL COURT GRAVELY ERRED IN NOT DISMISSING THE CASE DESPITE SEVERAL INSTANCES
WHEREIN THE PROSECUTION WAS NOT ABLE TO PRESENT OR CONTINUE THE PRESENTATION OF ITS
EVIDENCE.

II.

548
THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE
CRIME OF KIDNAPPING.

We first deal with the issue of the prosecution's repeated failure to present evidence. On April 20, 1998,
due to the absence of the public prosecutor, the lower court issued an order resetting the hearing to
April 30 and May 4, 1998 with a warning to the prosecution that if it fails to present its witness without
any reason, the case would be dismissed. 15 The hearing scheduled on April 30, 1998, was, however,
cancelled because the judge was on leave. On May 4, 1998, the prosecution witness did not appear. The
court gave the prosecution another chance to present its witnesses on May 12, 1998 with a second
warning that should the prosecution again fail to do so, the case would be dismissed. On May 12, 1998,
the public prosecutor handling the instant case was absent due to sickness. Another public prosecutor
appeared before the court and informed the judge that she was not certain whether the private
complainant and other witnesses were notified of the hearing. The substitute prosecutor prayed for a
three-day postponement in order to contact the private complainant and promised that should the
prosecution fail to present witnesses at such time, the prosecution would not object to a provisional
dismissal of the case. Against the vehement objection of the defense, the court granted the prosecution
a last chance to present its witnesses on May 15, 1998 and gave a final warning that should the
prosecution fail to do so, the case would be dismissed. On May 15, 1998, the prosecution presented its
witness. The defense contends that the delays caused by the prosecution violated his right to speedy
trial. The court therefore committed grave abuse of discretion in not dismissing the instant case.

The accused's contention is bereft of merit. While the Court recognizes the accused's right to speedy
trial and adheres to a policy of speedy administration of justice, we cannot deprive the State of a
reasonable opportunity to fairly prosecute criminals. Unjustified postponements which prolong the trial
for an unreasonable length of time are what offend the right of the accused to speedy trial. 16The
prosecution failed to justify the absence of the prosecutor from the hearing on April 20, 1998. Nor was it
able to offer an explanation for the failure of the witness to appear on May 4, 1998. On May 12, 1998,
the public prosecutor was again absent due to sickness and it was not ascertained whether the
prosecution witness was notified of the scheduled hearing. Three days thenceforth, however, the
prosecution presented its witness.

In determining whether the accused's right to speedy trial was violated, the delay demonstrated above
should be considered in view of the entirety of the proceedings. The following provisions of the Revised
Rules of Criminal Procedure (the "Revised Rules") which became effective last December 1, 2000, are
apropos:

"Rule 115, Section 1(h). Rights of accused at the trial. -- In all criminal prosecutions, the accused shall be
entitled to the following rights:

(h) To have speedy, impartial and public trial."

"Rule 119, Section 2. Continuous trial until terminated; postponements.-- Trial once commenced shall
continue from day to day as far as practicable until terminated. It may be postponed for a reasonable
length of time for good cause.

The court shall, after consultation with the prosecutor and defense counsel, set the case for continuous
trial on a weekly or other short-term trial calendar at the earliest possible time so as to ensure speedy
trial. In no case shall the entire trial period exceed one hundred eighty (180) days from the first day of
trial, except as otherwise authorized by the Supreme Court."

The Information for the instant case was filed on February 3, 1998. The prosecution presented its
witnesses from March 4, 1998 to May 26, 1998. The defense, on the other hand, presented its witnesses
from August 4, 1998 to September 15, 1998. The trial court rendered its decision on September 28, 1998.
We can compute from the above dates that the trial was completed in 195 days or from March 4, 1998
to September 15, 1998. However, while the Revised Rules provide that the entire trial period shall not
exceed one hundred eighty (180) days, delays caused by the accused himself or his counsel should
logically be excluded from this period. The records show that on March 4, 1998, Atty. Abalos replaced
Atty. Taminaya as counsel for the accused. Atty. Abalos asked for a resetting of the case to March 27,

549
1998 to allow him to go over the transcript of stenographic notes of the testimony of the prosecution
witness and conduct cross-examination. 17 On March 27, 1998, Atty. Abalos was absent and so the
hearing was reset to March 30, 1998. 18 On April 2, 1998, Atty. Abalos was appointed as public
prosecutor, thus leaving the accused Rama without counsel. Atty. Surot was appointed as the accused's
new counsel. To give Atty. Surot a chance to go over the records of the case, the hearing was reset to
April 14, 1998. 19 All in all, therefore, the delay caused by the accused or his counsel was a period of
thirty-eight (38) days. This period should be deducted from the 195-day period within which the trial
was completed. Thus, to be exact, the entire trial was completed in one hundred fifty-seven (157) days,
well within the 180-day period provided by the Revised Rules. This is not an unreasonable length of time
that violates the right of the accused to speedy trial. The trial court therefore did not err in not
dismissing the case on the ground of violation of the accused's right to speedy trial.

We come now to the second issue raised by the defense. The accused Rama faults the trial court for
finding him guilty beyond reasonable doubt despite the insufficiency of evidence. First, he makes much
of the fact that the prosecution did not present Bryan and Benjamin, the two children who allegedly saw
the accused Rama take Joyce Ann. This fact, however, does not militate against the story of the
prosecution. It is well-settled that the non-presentation of certain witnesses by the prosecution is not a
plausible defense and the matter of choosing witnesses to present lies in the sound discretion of the
prosecutor handling the case. 20 Besides, the prosecution adequately explained that the parents of the
two children, Bryan and Benjamin, reneged on their willingness to have their children testify after the
wife of the accused talked to them for fear of their safety. Likewise, as correctly pointed out in the
appellee's brief, nothing could have prevented the defense from presenting Bryan and Benjamin as its
own witnesses in order to discredit the testimony of Roxanne, the lone eyewitness presented by the
prosecution. The presumption of suppressed evidence does not apply when the same is equally
accessible or available to the defense. 21cräläwvirtualibräry

Secondly , the accused points out that since Bryan and Benjamin were not presented as prosecution
witnesses, Diana Laviste's claim that these children pointed to the accused as the man who took away
Joyce Ann does not bear any weight in evidence. This therefore leaves only the testimony of Roxanne as
the basis for the prosecution's identification of the accused Rama as the culprit. The defense contends,
however, that Roxanne's testimony, coming from the mouth of a five-year old, does not deserve credit
because she could not answer many questions and appeared to have been coached by her grandmother,
Diana.

We cannot subscribe to the accused's contention. The Rules of Evidence provide in Rule 130, Secs. 20
and 21:

"Sec. 20. Witnesses; their qualifications. - Except as provided in the next succeeding section, all persons
who can perceive, and perceiving, can make known their perceptions to others, may be witnesses.

Sec. 21. Disqualification by reason of mental incapacity or immaturity. - The following persons cannot be
witnesses:

xxx

(b) Children whose mental maturity is such as to render them incapable pf perceiving the facts
respecting which they are examined and relating them truthfully."

In Dulla v. Court of Appeals and Andrea Ortega, 22 the Court, citing the above provisions, gave credence
to the testimony of a three-year old witness. It held:

"It is thus clear that any child, regardless of age, can be a competent witness if he can perceive, and
perceiving, can make known his perception to others and of relating truthfully facts respecting which
he is examined. In the 1913 decision in United States v. Buncad, this Court stated:

Professor Wigmore, after referring to the common-law precedents upon this point says: 'But this much
may be taken as settled, that no rule defines any particular age as conclusive of incapacity; in each
instance the capacity of the particular child is to be investigated.' (Wigmore on Evidence, vol. I, p. 638)

550
The requirements then of a child's competency as a witness are the: (a) capacity of observation, (b)
capacity of recollection, and (c) capacity of communication. And in ascertaining whether a child is of
sufficient intelligence according to the foregoing, it is setted that the trial court is called upon to make
such determination." (emphasis supplied)

In People v. Mendiola, 23 the Court gave credence to the testimony of the six-year old witness even if
she failed to answer some questions because of her tender age.

In the case at bar, while the five-year old witness, Roxanne, was not able to answer some questions such
as which was her left and her right, she was straightforward in identifying the accused Rama as the
culprit, viz:

"Q: You said you will tell the truth, will you tell the truth now?

A: Yes, sir.

Q: Who is your mother?

A: Nanay Weng, sir.

Q: Will you please point to her?

A: My mother is not here, sir.

xxx

Q: Do you know Joyce Ann Cabiguin?

A: Yes, sir.

Q: Do you know where Joyce Ann is now?

A: No, sir.

Q: Why, where is she now?

A: She is not here, sir.

Q: Why?

A: Because a man took her, sir.

Q: You said that a man took her, who is that man, if you know?

A: Yes, sir.

Q: Will you point to her (sic)?

A: (Witness pointed to a person, when asked, responded by the name of Roger Rama)

Q: Do you know what place or where that man took Joyce Ann?

A: At the plaza, sir.

Q: Why were you at the plaza?

A: Because my mother brought us for a stroll, sir.

551
xxx

Q: What did you see at the plaza?

A: Stage, sir.

Q: Did you talk to that man at the stage?

A: Yes, sir.

Q: What did he say to you, if any?

A: He told me that I will get the beautiful girl and he will give biscuit, sir.

Q: Who is that beautiful girl?

A: My ading (my sister), sir.

Q: Do you know the name of your ading?

A: Joyce Ann, sir.

Q: Can you tell the Court how you carried her?

A: (witness demonstrated how she carried her sister by extending her two hands)

Q: Is Joyce Ann already able to walk or not?

A: Yes, sir.

Q: Where did you bring Joyce Ann?

A: To the man, sir.

Q: That same man?

A: Yes, sir.

Q: What did the man do to Joyce Ann?

A: He ran away with her, sir."24cräläwvirtualibräry

On cross-examination, Roxanne remained straightforward, consistent, and candid in her testimony, viz:

"Q: When you told (sic) that the man told you that he will give you biscuit and telling (sic) you that you
get Joyce Ann and bring her to him, did he give you that biscuit already before you went to Joyce Ann?

A: Yes, sir.

Q: How many biscuits did he give you?

A: One, sir.

Q: Did you give Joyce Ann a piece of the biscuit?

A: No, sir.

552
Q: What did you do with the biscuit?

A: I ate it, sir.

Q: Do you know how to distinguish colors?

A: (no answer)

Q: Do you remember what was the man wearing at that time when he approached you?

A: Yes, sir.

Q: What?

A: (witness pointed again to accused Roger Rama)

Q: When this Roger Rama approached you, and upon telling you that you bring Joyce Ann to him, did
you bring Joyce Ann immediately to him?

A: Yes, sir.

Q: When you brought Joyce Ann to him, what did you do?

A: He ran away with my sister Joyce Ann, sir."25cräläwvirtualibräry

We thus find no reason to disturb the trial court's assessment of the credibility of the child witness,
Roxanne. The determination of the competence and credibility of a child as a witness rests primarily
with the trial judge as he had the opportunity to see the demeanor of the witness, his apparent
intelligence or lack of it, and his understanding of the nature of the oath. As many of these qualities
cannot be conveyed by the record of the case, the trial judge's evaluation will not be disturbed on
review, unless it is clear from the record that his judgment is erroneous. 26cräläwvirtualibräry

This conclusion is in accord with the spirit and letter of the Rule on Examination of a Child Witness (the
"Rule") which became effective last December 15, 2000. The following provisions are apropos:

"Section 1. Applicability of the Rule. -- Unless otherwise provided, this Rule shall govern the examination
of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in
all criminal proceedings and non-criminal proceedings involving child witnesses." (emphasis supplied)

"Section 3. Construction of the Rule. -- This Rule shall be liberally construed to uphold the best interests
of the child and to promote the maximum accommodation of child witnesses without prejudice to the
constitutional rights of the accused." (emphasis supplied)

"Section 6. Competence. -- Every child is presumed qualified to be a witness. However, the court shall
conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that
substantial doubt exists regarding the ability of the child to perceive, remember, communicate,
distinguish truth from falsehood, or appreciate the duty to tell the truth in court.

xxx

(a) Proof of necessity. -- A party seeking a competency examination must present proof of necessity of
competence examination. The age of the child by itself is not a sufficient basis for a competency
examination." (emphasis supplied)

Thirdly , the defense faults the trial court for relying on a single eyewitness account in convicting the
accused Rama. The Court has long held that the testimony of a sole eyewitness is sufficient to support a
conviction so long as it is clear, straightforward and worthy of credence by the trial court. 27 The Rule
also provides in Section 22, viz:

553
"Section 22. Corroboration.-- Corroboration shall not be required of a testimony of a child. His
testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or
judgment subject to the standard of proof required in criminal and non-criminal cases." (emphasis
supplied)

The records of the instant case bear out the clear and straightforward manner by which Roxanne
testified. The trial court thus correctly relied upon the sole testimony of Roxanne.

Fourthly , as opposed to the accused's contention, motive is not essential to the conviction of the
accused when he is positively identified. 28 As the lone eyewitness, Roxanne, positively identified the
accused Rama, the accused's contention deserves scant consideration. In fact, what is worthy of
consideration is the fact that the accused Rama himself admitted that he did not know of any motive
which would urge the prosecution witnesses to falsely testify against him. The running case law is that
where there is no evidence that the principal witness for the prosecution was actuated by improper
motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and
credit. 29cräläwvirtualibräry

Finally , the accused Rama contends that the testimony of SPO4 Reynaldo de Vera of the Dagupan City
Police Headquarters that Bryan and Benjamin did not point to the accused Rama as the culprit when
they went to Rama's house should be given weight. Absent any motive for de Vera to testify for the
defense, he should be presumed to be telling the truth and performing his duties regularly. We do not
agree. Suffice it to say that the observations stated and conclusions drawn by the trial court in its
decision adequately meet this contention of the accused Rama. The trial court noted the lackadaisical
manner by which de Vera handled the case of the missing Joyce Ann. He could not even remember if he
recorded in the police blotter the disappearance of Joyce Ann as reported by her parents and the
investigation he made when he, along with Bryan and Benjamin, went to the house of the accused. He
did not even take down notes when he conducted his investigation of the accused. Nor did he follow-up
the case after the investigation he conducted in the house of accused Rama. It was in fact his demeanor
which prompted Joyce Ann's parents to seek the help of the CIDG in Dagupan City.

In view of the positive identification made by Roxanne, the accused's defense of denial and alibi must
fall. Well-settled is the rule that positive identification of the accused will prevail over the defense of
denial and alibi. 30 Furthermore, for alibi to prosper, it must be shown that there was physical
impossibility for the accused to have been at the scene of the crime. The defense has failed to satisfy
this requirement. The trial court took judicial notice of the fact that Gayaman where the accused
supposedly was at the time Joyce Ann disappeared is only about five to six kilometers away from the
plaza where Joyce Ann was playing.

We now deal with the penalty to be imposed. Article 267 of the Revised Penal Code provides in relevant
part, viz:

"Art. 267. Kidnapping and serious illegal detention. - Any private individual who shall kidnap or detain
another, or in any other manner deprive him of his liberty, shall suffer the penalty of reclusion perpetua
to death:

1. If the kidnapping or detention shall have lasted more than three days."

As of the time the instant case was decided by the trial court, Joyce Ann was still missing. Her
kidnapping had far exceeded three days. The penalty of reclusion perpetua is thus meted out to the
accused Rama in accordance with the above provision. Anent the award of damages, the trial court
struck off the record Roger Cabiguin's testimony regarding the anguish Joyce Ann's loss caused him
because he did not appear for cross-examination. There being no evidence in support of the award of
moral and temperate damages, we cannot award the same. 31cräläwvirtualibräry

IN VIEW WHEREOF, the impugned decision is AFFIRMED with the MODIFICATION that the award of
moral and temperate damages is deleted. Costs against accused-appellant.

SO ORDERED.

554
Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

[G.R. No. 91734. March 30, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VICTOR BORMEO, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Public Attorney’s Office for Accused-Appellant.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHTS OF THE ACCUSED; PRESUMPTION OF INNOCENCE UNTIL THE

CONTRARY IS PROVEN, MUST BE UPHELD. — A mere accusation is not synonymous with guilt. Every
accused is presumed innocent until the contrary is proven. This presumption is solemnly guaranteed by
the Constitution. To overcome the same, proof beyond reasonable doubt, or that degree of proof which
produces conviction in an unprejudiced mind, must be established by the prosecution. Short of this, it is
not only the right of the accused to be freed; it is, furthermore, the constitutional duty of the court to
acquit him. The freedom of the accused is forfeit only if the requisite quantum of proof necessary for
conviction be in existence.

2. REMEDIAL LAW; BURDEN OF PROOF REPOSED IN THE PROSECUTION; MUST STAND OR FALL ON ITS
OWN MERIT AND MUST NOT RELY ON THE WEAKNESS OF THE EVIDENCE OF THE DEFENSE. — Save in
certain instances as where, for example, the accused admits the commission of the imputed criminal act
but interposes justifying circumstances, the burden of showing the necessary proof which is reposed in
the prosecution is never shifted to the accused or diminished by the weakness of the defense for unless
the prosecution discharges such burden, the accused need not even offer evidence in his behalf. Stated
a little differently, the prosecution’s evidence must stand or fall on its own merits and cannot be
allowed to draw strength from the weakness of the evidence for the defense.

3. CRIMINAL LAW; STATUTORY RAPE; CARNAL KNOWLEDGE, DEFINED. — Carnal knowledge has been
defined as the act of a man having sexual bodily connections with a woman; sexual intercourse. An
essential ingredient thereof is the penetration of the female sexual organ by the sexual organ of the
male. In cases of rape, however, mere proof of the entrance of the male organ into the labia of the
pudendum or lips of the female organ is sufficient to constitute a basis for conviction. In this jurisdiction,
when a man has carnal knowledge of a woman who is under twelve (12) years of age, as in the case of
Raylin, statutory rape is committed. Punished under the Revised Penal Code, its elements are: 1) that
the offender had carnal knowledge of a woman and (2) that such act is committed when the victim is
under twelve (12) years of age.

4. ID.; ID.; NOT A CASE OF. — There exists no credible and competent evidence to show carnal
knowledge in this case. No one, save perhaps Raylin, saw whatever it is the accused did to her. The fresh
laceration of Raylin’s hymen and the fact that she had lost her virginity do not at once support a
conclusion that they were caused by sexual intercourse. It is to be noted that Dr. Veneracion did not
categorically testify that the injury in the hymen could have been caused by a male organ; as a matter of
fact, the prosecutor did not even ask him if it is possible that it could be caused by such an organ. The
prosecutor did not proceed further by asking, hypothetically, what that object could be or whether it is
possible that an erect penis could have caused the laceration. Instead, it was the counsel for the accused
who recklessly suggested such a possibility when he cross-examined Dr. Veneracion; but then, the latter
was forthright enough to state that he could not pinpoint what particular object caused the laceration.

5. REMEDIAL LAW; EVIDENCE; ADMISSIBILITY OF A DECLARATION AS PART OF RES GESTAE. — We have

already mentioned the requisites for the admission of evidence as part of the res gestae. In People v.
Ner, Supra., at pages 1161-1162, citing authorities, We ruled: "All that is required for the admissibility of
a given statement as part of the res gestae, is that it be made under the influence of a startling event
witnessed by the person who made the declaration before he had time to think and make up a story, or

555
to concoct or to contrive a falsehood, or to fabricate an account, and without any undue influence in
obtaining it, aside from referring to the event in question or its immediate attending
circumstances."cralaw virtua1aw library

6. ID.; ID.; ACQUITTAL OF ACCUSED IN CASE AT BAR, WARRANTED. — This Court concludes that the
weakness of the accused’s defense of alibi, which the Solicitor General stresses to further bolster the
case for the prosecution, is entirely irrelevant. Since the prosecution has failed to prove the accused’s
guilt beyond reasonable doubt, he is, as a matter of right, entitled to an acquittal.

DECISION

DAVIDE, JR., J.:

At around 3:00 o’clock in the afternoon of 2 April 1989, in barangay San Fernando, Laur, Nueva Ecija,
while Carmelita Galzote was walking back to her home after peddling eggplants and tomatoes, she was
met by her 2 1/2-year old granddaughter, Raylin, who was running "pabisaklat" (with legs wide apart)
and crying. Carmelita put her basket down and cradled Raylin on her lap. She then discovered that the
child’s private organ was bleeding. when queried as to why it was bleeding, Raylin replied, "Tatay,"
referring to the accused, the common-law husband of Carmelita Galzote.

The following morning, Carmelita brought Raylin to the Rural Health Unit in Laur, Nueva Ecija. The latter
was examined by Dr. Felimon V. Veneracion after Carmelita gave her written consent in the form of a
"Salaysay." 1 Upon examination, Dr. Veneracion discovered a fresh laceration of Raylin’s hymen "at 3:00
to 9:00 o’clock position in the face of the clock" and some slight bleeding; there was, however, no extra-
genital, physical injury. The doctor concluded that Raylin’s virginity was lost. Such findings are embodied
in the medical certificate which he subsequently issued. 2

Carmelita then proceeded to the Laur Police Headquarters where here statement, "Kusang loob na
Salaysay", was taken by Pfc. Bienvenido P. Carse and sworn to before P/Lt. Hipolito Bernardo. 3 In the
afternoon of 3 April 1989, the accused was arrested and detained at the Laur municipal jail. Being
Raylin’s only living relative, Carmelita filed on 7 April 1989 a criminal complaint for rape dated — 4 April
1989 — against the accused before the Municipal Circuit Trial Court (MCTC) of Laur and Gabaldon,
Nueva Ecija. 4

In due course, the records of the case were forwarded by the MCTC to the Office of the Provincial Fiscal
of Nueva Ecija. On 26 June 1989, the Office of the Provincial Fiscal filed an Information 5 with the
Regional Trial Court (RTC) of Nueva Ecja charging the accused with the crime of rape allegedly
committed as follows:chanrobles.com:cralaw:red

"That on or about the 2nd day of April, 1989, at Brgy. San Fernando, Municipality of Laur, Province of
Nueva Ecija, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
did then and there wilfully, unlawfully and feloniously had (sic) carnal knowledge of Raylin Galzote, a 2
1/2 year old girl, deprived of reason and who is the step-granddaughter of said accused, by having
sexual intercourse with her, to her damage and prejudice."cralaw virtua1aw library

The information, docketed as Criminal Case No. 0135-P, was raffled off to Branch 40 of the said court at
Palayan City. No bail was recommended for the accused’s temporary liberty.

Arraigned on 12 July 1989, 6 the accused’s pleaded not guilty; trial on the merits thereafter followed.

The prosecution presented Carmelita Galzote and Dr. Felimon V. Veneracion as its witnesses. It
dispensed with the presentation of Raylin Galzote on account of her tender age. The accused testified in
his behalf with the prosecution not even attempting to cross-examine him. 7

On 28 September 1989, the trial court promulgated its decision, dated 14 September 1989, 8 finding the

556
accused guilty of the crime charged. The dispositive portion thereof reads as
follows:jgc:chanrobles.com.ph

"WHEREFORE, finding the accused guilty beyond reasonable doubt of the crime of rape, he is hereby
sentenced to suffer the penalty of reclusion perpetua and to indemnify the offended party the amount
of P50,000.00, without subsiding (sic) imprisonment in case of insolvency, plus costs." 9

The conviction is anchored on the evidence for the prosecution which the trial court gave full faith and
credit and which it summarized as follows:jgc:chanrobles.com.ph

"The evidence of the prosecution tends to establish that on April 2, 1989, at around 3:00 o’clock in the
afternoon, Carmelita Galzote was on her way home to Barangay San Fernando, Laur, Nueva Ecija, after
selling tomatoes and eggplants. As she was nearing her house, she was met on the shoulder of the road
by her granddaughter Raylin Galzote, running ‘pabisaklat’ (with legs wide apart) and crying. Earlier, she
left her at the house with 4-year old Riva and the accused. The accused was no longer there having gone
to a drinking session.

Carmelita put her basket down and carried Raylin on her lap. The former noticed that her lap was
smeared with blood so she started examining the different parts of the body of the latter and found that
her vagina was the one bleeding. Carmelita then asked Raylin, ‘Bakit anak, bakit dumudugo ang kiki mo?’
To which Raylin, replied, ‘Tatay’, she was referring to accused Victor Bormeo, common-law husband of
Carmelita.’Tatay’ may also refer to grandfather. Forthwith, Carmelita brought Raylin to Barangay
Captain Boy Paraiso but (sic) who told them that he cannot solve the problem they brought before him.
He advised them to go to town.

The following morning of April 3, 1989, Carmelita brought Raylin to the Rural Health Unit in Laur, Nueva
Ecija. Before examining 2-year old Raylin, Dr. Felimon V. Veneracion asked for Carmelita’s consent which
she gave by means of a ‘Salaysay’ (Exh. A). Dr. Veneracion then performed the examination the result of
which is embodied in a ‘Medical Certificate’ (Exh. A-1) with following statements:chanrob1es virtual 1aw
library

‘FINDINGS

1) External examination-negative for extra-genital, physical injury — Fairly nourished child, weighing
12.1 kilos.

2) Internal examination — absence of pubic hair.

Hymen-presence of fresh laceration of the hymen at 3:00 to 9:00 o’clock position in the face of the clock.
Presence of slight bleeding.

Conclusion:chanrob1es virtual 1aw library

Physicial (sic) virginity loss.’

Dr. Veneracian informed Carmelita that Raylin was molested.

Immediately after coming from the doctor, Carmelita and Raylin went to the Police Headquarters of Laur,
Nueva Ecija, where the former gave a ‘Kusang Loob na Salaysay’ before PFC Bienvenido F. Carse (Exh. B)
and then swore to (sic) (Exh. B-1) before P/LT Hipolito T. Bernardo. And since Carmelita is the only
relative living with Raylin, Carmelita was the one who personally filed a complaint against the accused
on April 4, 1989, before the Municipal Circuit Trial Court of Laur & Gabaldon, Nueva Ecija.

Carmelita has been living with the accused for over 10 years. Her first husband was the late Julian
Bastawa with whom she begot the following children namely, Flordeliza, Victoria, the deceased Aurelia
(mother of Raylin) and Anna.chanrobles.com:cralaw:red

The accused has been a problem to Carmelita. He attempted to rape her eldest daughter Flordeliza by

557
entering thru a window and then pulled (sic) out his belt. He molested Victoria by pulling out her skirt
while dressing up. He entered the mosquito net of Aurelia when they were in Bulacan. He also
attempted to rape her youngest daughter 7-year old Anna when they were in Baler. She did not bother
to file cases against the accused because his actuations did not materialize. She admonished him
though." 10

Although it considered as hearsay Carmelita’s testimony with respect to Raylin’s answer when asked
why her private organ was bleeding, the trial court nevertheless admitted the same as part of the res
gestae. 11

It rejected the version of the defense, which it condensed in this wise:jgc:chanrobles.com.ph

"On the other hand, the evidence of the defense tends to show that the accused is (sic) living with
Carmelita Galzote without benefit of marriage for more than 15 years. He knows Raylin, who is almost 3
years old, because she resides with them. She is a granddaughter of Carmelita.

In the morning of April 2, 1989, he was at their house with his common-law wife Carmelita and 4
children, namely, Raylin, 2 l/2-year old Oscar Bormeo, 7-year old Cesar and 4-year old Annabelle. At
about 11:30 that same morning, Carmelita left the house to sell tomatoes. The accused went to a
drinking session at around 12: 00 o’clock in the store of his compadre, a place about 100 meters, more
or less away from their house. He left the 4 children playing. The drinking spree stopped at 8:00 o’clock
in the evening. Carmelita was already at their house when he arrived. He did not have any conversation
with her.chanroblesvirtualawlibrary

The following day, he had a conversation with Carmelita about her going to town to borrow money. She
left at 7:00 o’clock in the morning and returned home without obtaining the loan at about 2:00 o’clock
in the afternoon, more or less.

Prior to April 2, 1989, the accused had a misunderstanding with Carmelita. The argument was about his
coming home after watching TV when he saw a man coming out from their house. When he confronted
her about it, she become angry at him.

Raylin calls the accused ‘Tatay’ and he treats her as if she is a daughter to him. She can talk but one
cannot easily understand what she is saying. However, when he communicates to her he could
somehow understand what she is saying to him.

The accused was apprehended by policemen in the afternoon of April 3, 1989. He learned from them
that his wife has lodge (sic) a complaint for rape (sic) of his step-granddaughter Raylin. He told them that
he did not do it. He was brought to the Municipal Hall and detained in jail. Although he wanted to give a
sworn statement about the alleged rape, the police did not bother to take the same.

The accused denies that he molested and/or attempted to rape her (sic) stepdaughters, Flordeliza,
Victoria, Aurelia and Anna, at one time or another." 12

because it "cannot make anything clear (sic) out of the same, whether it is one of alibi or imputing ill
motive on Carmelita, his common-law wife, whom he suspected of having relationship (sic) with a man
he allegedly saw coming out of their house one evening before the subject incident happened and that
Carmelita got angry at him when confronted of (sic) the same." 13

Dissatisfied with the judgment, Accused filed his Notice of Appeal on 11 October 1989. 14 This Court
accepted the appeal in the Resolution of 14 February 1990. 15

In his Appellant’s Brief filed on 8 June 1990, Accused insists that he should be acquitted and submits the
following assignment of errors:chanrob1es virtual 1aw library

"I

558
THE TRIAL COURT ERRED IN FINDING THAT THERE WAS CARNAL KNOWLEDGE WITH IT CONVICTED
ACCUSED-APPELLANT OF THE CRIME OF RAPE.

II

THE TRIAL COURT ERRED IN CONCLUDING THAT THE GUILT OF THE ACCUSED WAS ESTABLISHED
BEYOND REASONABLE DOUBT BASED ON THE UNCORROBORATED TESTIMONY OF CARMELITA GALZOTE
AND IN ADMITTING IT AS PART OF RES GESTAE." 16

As regards the first assigned error, the appellant contends that there was no eyewitness to the alleged
rape and that the testimony of Carmelita Galzote is not conclusive as to the fact of carnal knowledge.
Despite the finding that the victim had lost her virginity, it is averred that the prosecution failed to
establish carnal knowledge or sexual intercourse as its cause. It is his theory that such loss may have
been occasioned by the insertion of an object other than an erect male organ, a possibility which Dr.
Veneracion himself admitted. 17 Moreover, the absence of any injury outside Raylin’s private organ, as
attested to by the medical certificate, indicates that the latter was not molested. It is highly improbable
that a girl of Raylin’s age would not have suffered external injuries if she were indeed ravished or
sexually molested. The appellant therefore maintains that there is no positive and conclusive proof to
show that someone had carnal knowledge of Raylin.

Anent the second assigned error, appellant asserts that the evidence relied upon by the trial court to
convict him consisted merely of Carmelita Galzote’s testimony regarding the declaration of the victim,
which it considered as part of the res gestae, and the testimony of Dr. Veneracion. He disagrees with the
conclusion of the trial court that Carmelita’s testimony is admissible as part of the res gestae — an
exception to the hearsay rule — and submits that such testimony should not be given credence because
Raylin’s utterance of "Tatay" does not convey a categorical directness to the question asked by
Carmelita, to wit: ‘Bakit anak, bakit dumudugo ang kiki mo.’" Such declaration cannot be considered as
part of the res gestae since the same cannot be categorized within any of its two (2) types, viz.,
spontaneous exclamation and verbal acts. 18 It likewise fails to meet the three (3) requisites for
admissibility of a declaration as part of the res gestae, namely: (a) there must be a startling occurrence,
(b) it was made before the declarant could contrive or devise and (c) it must refer to the occurrence in
question and its immediately attending circumstances. 19

Accused further maintains that the testimony of the doctor does not prove carnal knowledge; its
probative value merely supports the fact that Raylin had lost her virginity. Carmelita’s declarations that
the appellant had made advances to her daughters in the past do not inspire belief; these are
unsupported and do not stand on factual bases.

In the Appellee’s Brief filed on 17 September 1990, the Office of the Solicitor General rejects all the
contentions of the appellant and instead prays for the affirmance of the appealed decision in toto. It
claims that the trial court was correct in giving full credit to the testimony of complainant Carmelita
Galzote which clearly, positively and convincingly proved carnal knowledge. It then cites several
circumstances which further bolster the claim of the prosecution, to wit;" (1) the bleeding of the victim’s
vagina and her own word that it was appellant who caused the injury; (2) appellant was in the house
with the victim when Carmelita left the house; (3) appellant was no longer in the house when Carmelita
arrived only to see her granddaughter already molested; (4) appellant’s past history shows his lascivious
tendency in his attempts to seduce or violate the daughters of his common-law wife; (5) appellant’s
unconvincing alibi, his inability to give the name of his drinking partner or that of the storeowner where
(sic) he allegedly had a drinking session, information which in view of his reluctance to reveal them,
undoubtedly would be unfavorable." 20

In refutation of the second assigned error, the Solicitor General cites the statement in People v. Nartea
21 to the effect that the marked trend of decisions is to extend, rather than narrow, the scope of the
doctrine admitting declarations as part of the res gestae. He contends that the question of whether
specific statements are admissible as part of the res gestae is a matter within the sound discretion of the
trial court; he asseverates that the latter’s determination thereof is ordinarily conclusive upon appeal in
the absence of clear abuse of discretion. He finally concludes that there was full compliance with the
requirement for the admission of the testimony of Carmelita as part of the res gestae.

559
If rape was indeed committed on 2 1/2-year old Raylin, this Court would be the first to condemn the
detestable act and would not hesitate to impose the proper penalty. As We declared in People v. Desuyo.
22 Defilers of women are an especially despicable ilk of evil men, and more so those who would inflict
their lasciviousness upon innocent and defenseless children. They are filthier that the slime where they
belong; whatever punishment is imposed on them can never expiate their loathsome offense for which
forgiveness itself, from a mortal court at least, would be a sin."cralaw virtua1aw library

Our careful scrutiny of the records of this case and exacting evaluation of the testimonies of the
witnesses lead to nothing but an unearthing of the scant and unreliable evidence for the prosecution.
On the basis thereof, Our minds cannot rest easy upon the certainty of guilt of the accused. He may
without doubt be an evil man, but for as long as the evidence against him is not enough to satisfy the
degree of proof required for conviction, Our feelings for Raylin and Our human prejudice against her
defiler, who has certainly descended to the level of a beast, must not color Our judgment.

A mere accusation is not synonymous with guilt. 23 Every accused is presumed innocent until the
contrary is proven. This presumption is solemnly guaranteed by the Constitution. 24 To overcome the
same, proof beyond reasonable doubt, or that degree of proof which produces conviction in an
unprejudiced mind, 25 must be established by the prosecution. Short of this, it is not only the right of
the accused to be freed; it is, furthermore, the constitutional duty of the court to acquit him. 26 The
freedom of the accused is forfeit only if the requisite quantum of proof necessary for conviction be in
existence. 27 Save in certain instances as where, for example, the accused admits the commission of the
imputed criminal act but interposes justifying circumstances, the burden of showing the necessary proof
which is reposed in the prosecution is never shifted to the accused or diminished by the weakness of the
defense for unless the prosecution discharges such burden, the accused need not even offer evidence in
his behalf. Stated a little differently, the prosecution’s evidence must stand or fall on its own merits and
cannot be allowed to draw strength from the weakness of the evidence for the defense. 28

In the instant case, the prosecution relied solely on the testimonies of Carmelita Galzote and Dr.
Veneracion. The victim herself was not, for obvious reasons, called to the witness stand to testify. Being
only 2 1/2-years old at that time, she was disqualified from testifying as a witness under Section 21, Rule
130 of the Rules of Court; by reason of her tender age, she was incapable of perceiving the facts
respecting her ordeal and intelligently making known such perceptions or narrating them truthfully.

In its decision, the court a quo stated that the prosecution opted to dispense with her testimony "on
account of her tender age and inability to communicate coherently." 29

Carmelita was not an eyewitness to the alleged rape. She frankly admitted that the only piece of
evidence she has against the accused is Raylin’s response of "Tatay" to her question "Bakit anak, bakit
dumudugo ang kiki mo?" Thus, upon being questioned by the trial court, she offered the following
answers:jgc:chanrobles.com.ph

"Q I would like to ask some clarificatory questions. In your early (sic) answer you stated you linked your
husband to the alleged rape by the word ‘tatay,’ is that correct?

A Yes, sir.

Q Aside from that do you have any ether proofs that it was actually your husband who raped her?

A No more, sir.

Q By the word ‘tatay’ you would like to link your husband that he has done (sic) the crime of rape to (sic)
your granddaughter?

A Yes, sir because my granddaughter will not state that if he did not do it.

Q What was your question? Is it ‘Sino ba ang gumawa nito?’

560
A My question is, ‘Why is your vagina bleeding’ and she answered, ‘Tatay.’" 30

It is clear from Carmelita’s answers that she merely concluded that the bleeding of Raylin’s private organ
resulted from carnal knowledge. Carnal knowledge has been defined as the act of a man having sexual
bodily connections with a woman; sexual intercourse. 31 An essential ingredient thereof is the
penetration of the female sexual organ by the sexual organ of the male. In cases of rape, however, mere
proof of the entrance of the male organ into the labia of the pudendum 32 or lips of the female organ 33
is sufficient to constitute a basis for conviction. In this jurisdiction, when a man has carnal knowledge of
a woman who is under twelve (12) years of age, as in the case of Raylin, statutory rape is committed. 34
Punished under the Revised Penal Code, its elements are: 1) that the offender had carnal knowledge of a
woman and 2) that such act is committed when the victim is under twelve (12) years of age. 35

There exists no credible and competent evidence to show carnal knowledge in this case. No one, save
perhaps Raylin, saw whatever it is the accused did to her. The fresh laceration of Raylin’s hymen and the
fact that she had lost her virginity do not at once support a conclusion that they were caused sexual
intercourse. It is to be noted that Dr. Veneracion did not categorically testify that the injury in the
hymen could have been caused by a male organ; as a matter of fact, the prosecutor did not even ask
him if it is possible that it could be caused by such an organ. Thus:jgc:chanrobles.com.ph

"Q Could you tell us what are the reasons for such a laceration?

A An object which could have been inserted into the vagina of the patient but most probably the object
was not fully inserted it was only on the outside part but the object is big that to fully introduce the
object would or could create an extensive laceration. It is anatomically impossible without having
extensive (sic) laceration, sir.

Q You said it could have been caused by an insertion of an object, could it be a result of bumping (sic) of
some object?

A I think that would not be the cause of the laceration because the position of the laceration is on two
parts of the hymen, sir." 36

The prosecutor did not proceed further by asking, hypothetically, what that object could be or whether
it is possible that an erect penis could have caused the laceration. Instead, it was the counsel for the
accused who recklessly suggested such a possibility when he cross-examined Dr. Veneracion: but then,
the latter was forthright enough to state that he could not pinpoint what particular object caused the
laceration. Thus:jgc:chanrobles.com.ph

"CROSS-EXAMINATION BY

ATTY. DIONISIO LEDDA:chanrob1es virtual 1aw library

Q Doctor you mentioned in your findings that probably an object was inserted or introduced on the
vagina of the patient could you tell to (sic) this court if that object that could rather could you tell to (sic)
this court would or could it be possible (sic) an erect male organ?

A That is possible, sir.

Q So it can not be alone an erect male organ which cause (sic) the laceration of the vagina of the
patient?

A I can not say what kind of object but since you ask me the possibility it is possible, sir.

Q Like for example or instance (sic) a blunt object or instrument?

A As I said a while ago, I cannot pinpoint what kind of object, sir.

Q So it is now possible if you cannot pinpoint what kind of object it may be an object with (sic) the size

561
of an erect male organ is that correct?

A That is possible, sir." 37

The trial court, however, gave undue weight to the word "Tatay" which Raylin uttered in answer to
Carmelita’s question — "Bakit anak, bakit dumudugo ang kiki mo?" Although such a declaration is
hearsay because Raylin was not presented as a witness and could not be cross-examined, the trial court
considered her alleged utterance as part of the res gestae and, therefore, admissible in evidence as an
exception to the hearsay rule under Section 42, Rule 130 of the Rules of Court. We have already
mentioned the requisites for the admission of evidence as part of the res gestae. In People v. Ner, 38 We
ruled:jgc:chanrobles.com.ph

"All that is required for the admissibility of a given statement as part of the res gestae, is that it be made
under the influence of a startling event witnessed by the person who made the declaration before he
had time to think and make up a story, or to concoct or to contrive a falsehood, or to fabricate an
account, and without any undue influence in obtaining it, aside from referring to the event in question
or its immediate attending circumstances."cralaw virtua1aw library

The first two requisites of admissibility of a declaration as part of res gestae may be conceded in this
case. There are, however, serious doubts as to the existence of the third requirement. Due precisely to
the incompetence of Raylin, which flows from her inability to communicate coherently, it is unclear if
her utterance of the word "Tatay" has reference to sexual intercourse. As earlier shown, Carmelita
Galzote admitted that this utterance was not in answer to the question "Sino ba ang gumawa nito?" —
which she did not even ask — but to the question "Why is your vagina bleeding?" 39 Such bleeding need
not necessarily have been caused by or through sexual intercourse. The trial court’s conclusion that it
was so caused appears to be tenuous and speculative that it cannot convince a reasonable mind of its
soundness and the accused’s alleged responsibility therefor.

Carmelita’s declaration on the witness stand that the accused attempted to: (1) rape her eldest
daughter, Flordeliza, by entering through a window and pulling out his belt; (2) molest her other
daughter, Victoria, by pulling out her skirt while she was dressing up; (3) rape her third daughter, Aurelia,
by entering the mosquito net while they were in Bulacan and; (4) rape her fourth daughter Anna while
they were in Baler, cannot sway Our judgment. While proof of such prior acts is admissible under
Section 34, Rule 150 of the Revised Rules of Court to prove, inter alia, a specific intent or habit, We are
not prepared to give full faith to Carmelita’s testimony on such acts. If the accused truly committed such
deeds, We are unable to understand why and how Carmelita continued to maintain her common-law
union with him for more than ten (10) years. Moreover, none of her daughters who were allegedly the
victims of the lascivious advances of the accused came out to denounce him.

Finally, this Court concludes that the weakness of the accused’s defense of alibi, which the Solicitor
General stresses to further bolster the case for the prosecution, is entirely irrelevant. Since the
prosecution has failed to prove the accused’s guilt beyond reasonable doubt, he is, as a matter of right,
entitled to an acquittal.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

WHEREFORE, judgment is hereby rendered REVERSING the Decision of Branch 40 of the Regional Trial
Court of Palayan City in Criminal Case No. 0135-P and ACQUITTING, on the ground of reasonable doubt,
the accused VICTOR BORMEO. His immediate release from detention is hereby ordered.

SO ORDERED.

Feliciano, Romero and Melo, JJ., concur.

Bidin, J., in the result.

Gutierrez, Jr., Chairman, is on leave.

G.R. No. 130331 November 22, 2000

562
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADEL TUANGCO, NELSON PINEDA, JR. and SONNY TUANGCO, accused.
ADEL TUANGCO and SONNY TUANGCO, accused-appellants.

DECISION

PER CURIAM:

In the morning of January 4, 1995, the naked cadaver of Aurea Eugenio, a bookkeeper employed by the
Centro Escolar University Credit Cooperative in Manila was found lying beside a creek about 50 meters
away from the national highway in Apalit. Her body bore multiple stab wounds and her private parts
were bloodied and showed signs of sexual abuse.

On May 18, 1995 two informations were filed in court charging Adel Tuangco y Dizon, Nelson Pineda Jr.
alias "Jun Tattoo"1 , and Sonny Tuangco y Dizon alias "Baba" with the crimes of rape with homicide and
theft.

The Information in Criminal Case No. 95-1609(M) states:

"That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka, Barangay
Sulipan, Municipality of Apalit, Province of Pampanga, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, did then and there, wilfully, unlawfully and feloniously, with intent to gain which came as an
afterthought to them after executing their primordial intent to rape and kill victim AUREA EUGENIO,
took and carried away her wrist watch, three rings, earrings, P3,000.00 cash money and camera, the
total value of which amounts to P20,000.00, to the damage and prejudice of her heirs.

The commission of this offense added ignominy to the natural effects of the crime."

whereas the Information in Criminal Case No. 95-1610 (M) reads:

"That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka, Barangay
Sulipan, Municipality of Apalit, Province of Pampanga, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused conspiring, confederating and mutually helping one
another, with evident premeditation, abuse of superior strength and taking advantage of nighttime, did
then and there willfully, unlawfully, feloniously and with lewd design dragged Aurea Eugenio, reclined
her in a tree, opened wide her thighs, inserted a bottle of Pidol syrup in her vaginal canal and forcibly
took turns in having sexual intercourse with her against her will, after which, and by reason of such rape
accused with intent to kill, did then and there, wilfully, unlawfully and feloniously stabbed several times
Aurea Eugenio in her neck which caused her death.

That the commission of this offense was attended by the aggravating circumstance of evident
premeditation, use of superior strength, nighttime which was purposely sought by the accused to
facilitate and insure its commission.

CONTRARY to Article 335 of the Revised Penal Code as amended by Republic Act No. 2632 and Republic
Act No. 411."2

Adel Tuangco was arraigned on June 5, 1995; he pleaded not guilty to both charges. In the course of the
trial accused Sonny Tuangco was apprehended and also pleaded not guilty. Nelson Pineda, Jr. remains at
large.

The principal evidence against the accused consisted of the testimony of an eyewitness, Silvestre
Sanggalan, a deaf-mute. He gave his testimony through sign language, which was interpreted by a sign
language expert. The court's summation of the evidence is as follows:

563
"On January 3, 1995 at around 6:00 o'clock in the evening, he was inside a 'beer house' along the
national highway. He had seven (7) companions at that time. (TSN, July 10, 1995, pp. 55-57). The group
consisting of eight (8) persons including the witness arrived at the said place at day time. When
nighttime came, witness Sanggalan together with three (3) of his companions left the place and
proceeded to a rice field near the highway. (Ibid, p. 58). Sanggalan described and identified the said
three (3) other persons as a) tricycle driver with tatoos over his body and scars on his arms; b) a person
with a long chin and known as 'Baba' and c) accused Adel Tuangco. Sanggalan stepped down from the
witness stand and identified accused Adel Tuangco as one of the three (3) other persons together with
whom, he went to the rice field. (Ibid, pp. 58-59). The tricycle driver with tatoos over his body and the
person with an elongated chin were not inside the court room at the hearing of these cases on July 10,
1995. Accused Adel Tuangco and the person with elongated chin are brothers. (Ibid, p. 60).

The group of eight (8) persons were drinking beer and gin inside the 'beer house'. When night time
came, Sanggalan, accused Adel Tuangco, the person with tatoos over his body and the one with
elongated chin proceeded to the rice field where there was a waiting shed in which they stayed for a
while. Inside the waiting shed, the person with tatoos over his body, known as 'Tatoo', and the one with
elongated chin, known as 'Baba', took Pidol cough syrup. (Ibid, pp. 61-65). They went to the rice field
because they were very drunk. (Ibid, pp. 66). The four (4) stayed at the waiting shed until 8:00 o'clock in
the evening. (TSN, July 21 , 1995, p. 12).

The three, accused Adel Tuangco, 'Baba' and 'Tatoo' later left the waiting shed and went to the rice field
to follow a girl who was wearing a long hair. Through photographs of the deceased Aurea Eugenio,
witness Sanggalan identified her to be the girl whom the three followed into the rice field. (Ibid, pp. 14
and 27-28). As soon as they caught up with the deceased, ‘Tatoo' pushed her. Adel Tuangco got hold of
the shoulder bag which the deceased Aurea Eugenio was carrying at that time. 'Baba' and 'Tattoo' then
pushed Aurea against a tree and stabbed her with a knife several times on the neck. At this point, Adel
Tuangco joined the two and also stabbed the deceased. The deceased fell down. (Ibid, pp. 15-19).

After the deceased fell down on the ground, 'Tatoo' inserted a bottle of Pidol cough syrup into her
private parts. Then 'Baba' pushed the bottle further into the private parts of the deceased. While the
bottle was being pushed, Adel Tuangco was hugging the deceased who at that time was still alive and
resisting the assault. Together, the three removed the blouse, bra, skirt and panty of Aurea Eugenio.
Adel Tuangco raped the deceased. 'Tatoo' and 'Baba' likewise successively raped Aurea in that order.
(Ibid, pp. 19-23). At the time that the three accused were raping Aurea Eugenio, witness Sanggalan was
about three and one half (3½) meters away from them. While Adel Tuangco was raping the victim,
'Tatoo' and 'Baba' were beside them. When 'Baba' and 'Tatoo' took their respective turns in raping the
victim the other two were holding her hands. (Ibid, pp. 24-25).

After raping the victim, Adel Tuangco took her bag, 'Tatoo' got her camera and cash money while 'Baba
got her ring, earrings and watch. (Ibid, pp. 25-26). After the incident, 'Tatoo' and 'Baba' went to the rice
field while Adel Tuangco went to the other direction. (Ibid, p. 29). Earlier, during the incident, Adel
Tuangco, 'Tatoo' and 'Baba', on two occasions, asked witness Sanggalan to leave. However, the witness
merely hid behind the grasses and trees. (Ibid, p. 30 and TSN, August 7, 1995, p. 31). When recalled to
the witness stand on January 17, 1996, Sanggalan identified accused Sonny Tuangco as the one he
referred to as 'Baba'.3

Dr. Dominic Aguda, a medico legal officer at the National Bureau of Investigation, conducted an autopsy
of the victim and made the following findings:

"Pallor, marked and generalized

Hematoma- 7.0 x 5.0 cms. left frontal region, head; 3.0 x 2 cms. right frontal region head; 7.0 x
6.0 cms. right auricular region; 4.0 x 2.0 cms. right palm; 3.0 x 2.0 cms., left palm 2.0 x 2.0 cms.
chest; 3.0 x 2.0 cms. chin

Abrasion- 3.0 x 2.0 cms., right chin; 2.0 x 1.0 cms. right breast 2.0 x 2.0 cms. left breast.

Lacerated wound. 2.5 cms. pre-auricular area, left

564
 Stab Wounds-

1. Six (6) in number, gaping, within an area of 9.0 x 6.0 cms. located on the left side of
the neck directed medially involving the skin, blood vessels, lacerating the throat and
esophagus, with depths from 2-5 cms. One end is contused the other is sharp.

2. Three (3) in number, gaping, within an area of 6.0 x 5.0 cms. one end is contused, the
other is sharp, located on the right side of the neck; directed medially involving the skin,
blood vessels, hitting the trachea with depths from 2.4 cms.

Brain and visceral organs-very pale

Heart chambers- contain a very small amount of dark clotted blood.

Stomach- empty

Hymen- fresh lacerations on all sides with an opening of about 4.0 x 3.0 cms., massive blood
clots accumulated within vaginal canal.

Perineum- V- shaped median laceration measuring about 5.0 cms. (Exhibit "E")

Dr. Aguda explained the nature of the fresh lacerations on the hymen of the victim as well as the
massive blood clots accumulated within the vaginal canal. He testified that these injuries were caused
not only by human penis that penetrated the hymen but by a hard foreign object like a bottle. (Ibid, p.
30). The abrasions on the left and right breast could have been caused by human bites. (Ibid, p. 25). The
stab wounds described as gaping and the stab wounds located within the neck area were inflicted on
the victim by her assailant using a single bladed weapon. (Ibid, p. 26). It is very possible that the victim
was sexually abused. (Ibid, p. 31 ). The heart chambers of the victim contained very small amount of
dark clotted blood, which means there was not enough blood anymore in the heart as the victim
suffered massive bleeding. This was due to the nine (9) stabbed wounds inflicted on the neck of the
victim. The proximate cause of death of the deceased was severe hemorrhage secondary to multiple
stab wounds. (Ibid, pp. 34-35). The abrasions and hematomas on the body of the victim are indications
of struggling during the sexual attack on the victim. (Ibid, p. 34).4

Both accused denied the charges. Adel Tuangco testified that he was at home in the evening in question,
a defense which was corroborated by his common-law wife Liza Reyes Tuangco,5 by his mother, Erlinda
Dizon Tuangco6 and his sister Glessen. For his part Sonny Tuangco claimed he was alone in his house at
Balungao, Calumpit, Bulacan in the evening of January 3, 1995.7

The trial court made the following findings of facts:

"From the evidence adduced in these cases, it was established that-

The victim Aurea Eugenio, single and a resident of Sitio Dalan Baka, Barangay Sulipan, Apalit Pampanga
was working as a bookkeeper in Centro Escolar University Credit Cooperative located at the City of
Manila.

On January 3, 1995, the first working day of the year, she reported to office bringing with her a Kodak
camera to take pictures of her officemates for souvenir. At about 5:00 o'clock in the afternoon of the
same day, she told her officemates that she will go to their house in Apalit, Pampanga although she was
not scheduled to do so as it was an ordinary week day. She brought with her, the camera and the
P3,000.00 cash money to be spent on the occasion of their town fiesta. From the office, she proceeded
to the terminal of Victory Liner Bus at Caloocan City, where, at 6:00 o'clock in evening, she boarded
Victory Liner Bus No. 272.

Between 7:00 and 7:30 o'clock in the evening, the bus stopped at Sitio Dalan Baka, Barangay Sulipan,
Apalit, Pampanga where the victim Aurea Eugenio alighted. From the national highway, the house of the
victim was about three hundred (300) meters away. Although lights can be seen from the said house, it

565
was very dark and silent on the road going to the same and coming from the highway. On either side of
the road were tall grasses and trees. On the side of the highway was a waiting shed. Inside the waiting
shed were four (4) persons. They were three (3) accused, namely, Adel Tuangco y Dizon, his brother
Sonny Tuangco y Dizon alias 'Baba' and Nelson Pineda, Jr. alias 'Jun Tattoo' and the prosecution eye
witness Silvestre Sanggalan alias 'Popoy, alias 'Pipi'.

Earlier, at around 6:00 o'clock in the evening of the same day, the three (3) accused and witness
Sanggalan were inside a 'beer house' located along the national highway at Calumpit, Bulacan, drinking
beer and gin. Together with four (4) other persons, they started their drinking spree when it was still
daytime. When nighttime came, the three (3) accused and witness Sanggalan left their companions and
proceeded to a rice field near the highway. They stayed in the waiting shed located at the opposite side
of the road where the victim Aurea Eugenio alighted. The four (4) went to the rice field because they
were already drunk. While inside the waiting shed, accused Sonny Tuangco and Nelson Pineda took
Pidol cough syrup.

The three (3) accused left the waiting shed and went to the rice field to follow the victim who had
already crossed the national highway and was walking towards her house. The three (3) accused asked
Sanggalan to leave. However, instead of leaving, Sanggalan hid behind the bushes and trees, thus, he
was able to witness the incident in question.

As soon as the accused caught up with the victim, Nelson Pineda, Jr. pushed her while Adel Tuangco got
hold of her shoulder bag. Sonny Tuangco and Nelson Pineda pushed the victim Aurea Tuangco against a
tree and stabbed her several times in the neck. At this point, Adel Tuangco joined the two (2) and he
also stabbed the victim until she fell down. As the victim was lying on the ground, Nelson Pineda
inserted the bottle of Pidol cough syrup in her private parts. Sonny Tuangco further pushed the bottle
into the body of the victim. While the bottle was being pushed, Adel Tuangco was hugging the victim
who was still alive and resisting the assault being made against her person. Together, the three (3)
accused removed the blouse, bra, skirt and panty of Aurea Eugenio. Thereafter, Adel Tuangco, Nelson
Pineda, Jr. and Sonny Tuangco, in that order, successively raped the victim. While Adel Tuangco was
raping the victim, the two (2) other accused were beside him. When Nelson Pineda, Jr. and Sonny
Tuangco were taking their respective turns in raping the victim, the two (2) other accused were holding
her hands.

After raping the victim, Adel Tuangco took her bag, Pineda got her camera and cash money while Sonny
Tuangco got her ring, earrings and watch. Thereafter, Nelson Pineda, Jr. and Sonny Tuangco went to the
rice field while Adel Tuangco proceeded to the opposite direction.

The body of the victim was already stiff when found by witness Michael Enriquez the following day lying
on the rice field owned by his grandfather, Ignacio Enriquez. The body was lying on its back with the
hands upraised, the blouse raised upwards and naked from the waist down. The private parts of the
victim had an opening of about two (2) inches and with blood all over it.

The fresh lacerations on the hymen of the victim as well as the massive blood clots accumulated within
the vaginal canal were caused not only by human penis that penetrated her private parts but by hard
foreign object like a bottle. The abrasions on the breast of the victim could have been caused by human
bites. The stab wounds located within the neck area of the victim were inflicted by her assailant using a
single bladed weapon. The nine (9) stab wounds in the neck induced severe hemorrhage which was the
proximate cause of the victim's death. The abrasions and hematomas on the body of the victim are
indications of struggling during the sexual attack on the victim."8

The trial court ruled that the guilt of the accused as charged was established with the required quantum
of evidence and concluded that the three accused conspired to commit the crimes charged. The accused
were sentenced as follows:

"WHEREFORE, the Court finds the accused Adel Tuangco y Dizon and Sonny Tuangco y Dizon guilty
beyond reasonable doubt as principals of the crime of theft defined in Article 309 in relation to Article
308 of the Revised Penal Code and of the crime of Rape with Homicide defined in Article 335, as
amended, of the same Code and hereby renders judgment as follows:

566
 1. In Criminal Case No. 95-1609(M), the said accused are convicted of Theft and hereby
sentenced to suffer the indeterminate penalty ranging from six (6) months of arresto mayor as
minimum to two (2) years, eleven (11) months and ten (10) days of prision correccional as
maximum; the said accused are likewise ordered to indemnify the heirs of the victim Aurea
Eugenio, jointly and severally, the amount of P3,000.00.

2. In Criminal Case No. 95-1610(M), the aforesaid accused are convicted of two (2) special
complex crimes of Rape with Homicide and each of them is hereby sentenced to two (2) death
penalties; both of them are ordered, jointly and severally, to indemnify the heirs of the victim
Aurea Eugenio the sum of P105,150.00 as actual damages, and the further sums of a)
P50,000.00 for the victim's death, b) P100,000.00 as moral damages and c) P50,000.00 as
exemplary damages, or a total of P200,000, in each of the two (2) crimes which they have
separately committed and each shall pay one-half (½) of the costs.

SO ORDERED.9

The case is before this Court on automatic review.

The Public Attorney's Office submits the following assignment of errors in the appellants' brief:

"I

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE ALLEGED
EYEWITNESS ACCOUNT OF SILVESTRE SANGGALAN WHO IS A DEAF-MUTE AND UNSCHOOLED.

II

THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH ACCUSED-APPELLANTS GUILTY BEYOND
REASONABLE DOUBT OF TWO (2) COUNTS OF SPECIAL COMPLEX CRIME OF RAPE WITH
HOMICIDE AND THEFT."10

In discrediting the testimony of the deaf-mute eyewitness, accused- appellant points out that because
Silvestre Sanggalan has had no formal schooling in a special school for deaf-mutes, the possibility that
resort to conjectures and surmises, brought about by overzealousness to understand what his witness
really wanted to say could not be discounted. Thus, accused-appellant cites certain portions of
Sanggalan's testimony which appeared unclear, e.g., the witness admitted that the place where the
incident happened was "very dark", and he was inconsistent as to who, between Adel Tuangco or Jun
Tatoo, was the first to rape the victim. Thus, his handicap prevented a truthful narration of what really
transpired.

The Solicitor General prays for an affirmance of the decision in all respects. He asserts that a deaf-mute
is qualified to testify, and the interpreter explained that through sign language, Sanggalan demonstrated
how Eugenio was raped and thereafter killed by appellants and Pineda, Jr. It is claimed that the
inconsistencies pointed out are minor and do not detract from the positive identification made by
witness Sanggalan of the accused-appellants as the persons who raped and killed Eugenio and took her
personal effects.

After a very careful examination of the evidence of record, we resolve to affirm the judgment of
conviction. We find no cogent justification to disturb or set aside the finding of the trial court upholding
the credibility of the deaf-mute witness, on the following rationalization:

"This Court, cognizant of the physical handicap of the eyewitness Silvestre Sanggalan, carefully
scrutinized his testimony and noted that the same were made, on several occasions from July 10, 1995
when he was called for the first time to testify until July 5, 1996 when he was recalled for the purpose of
cross-examination on behalf of accused Sonny Tuangco, in a candid and straightforward manner. While
the Court observes minor inconsistencies in his declarations, these are not reasons to render his
testimony incredible. On the contrary, it is well-established that minor inconsistencies in the testimony
of a witness are indications that the same is not rehearsed and all the more should be considered

567
credible. Thus, discrepancies in minor details indicate veracity rather than prevarication and only tend to
bolster the probative value of such testimony. (People vs. Mocasa, 229 SCRA 422).

This Court likewise evaluated very carefully, the qualifications and competence of Eva Sangco, the sign
language expert utilized by the prosecution and found the same to be sufficient to put on record with
accuracy, the declarations being made by witness Sanggalan on the witness stand. According to Eva
Sangco, sign language experts have different mode of communications. These are a) oral method b)
simultaneous method c) pantomine d) reverse interpretation e) speech reading f) natural signs and
gestures and g) interactive writings which are more on dramatization and drawing illustrations. In the
interpretation of the declarations of witness Sanggalan, Eva Sangco employed the natural homemade
sign method. Eva Sangco has undergone several trainings on this particular method. (TSN, July 21, 1995,
pp. 7-8).

In its futile attempt to destroy the credibility of witness Sanggalan, the defense attacked his character
and present a witness in the person of Merlita Baliber to show that he is a drunkard and a drug addict.
Likewise the defense presented documentary evidence (Exh. "3") to show that Sanggalan had been
accused of rape in a criminal case before the Regional Trial Court of Pasig, Rizal. These evidence
presented by the defense are unavailing. In People vs. Dominguez, 217 SCRA 170, it was held that even a
fact of prior criminal conviction alone does not suffice to discredit a witness. And in People vs. Tanco,
218 SCRA 494, it was held that the mere pendency of a criminal case against a person does not
disqualify him from becoming a witness. For the test to measure the value of the testimony of a witness
is whether or not such is in conformity to knowledge and consistent with experience of mankind.
(People vs. Morre, 217 SCRA 219). This Court finds it unnecessary to reiterate the earlier discussion as to
why it gives credence to the testimony of witness Sanggalan.

If at all, the evidence of the defense with respect to the character of Sanggalan substantiated the theory
of the prosecution- that these people, witness Sanggalan, and the three (3) accused were often times
seen drinking liquor and taking prohibited drugs. No less than defense witness Merlita Baliber testified
that on one occasion, she saw witness Silvestre Sanggalan and accused Nelson Pineda, Jr. going out of
the 'beer house' to join their three (3) other companions walking along the highway.1ªvvph!1 That
Baliber would deny that accused Adel Tuangco and Sonny Tuangco were among those people, is
expected. For, as admitted by Baliber, she was asked by the mother of accused Adel Tuangco and
accused Sonny Tuangco to testify in these proceedings to help the said accused. (TSN, February 7, 1996,
p. 35). Then too, the demeanor by which Baliber was testifying immediately casts doubt on her motive
for taking the witness stand and renders incredible her testimony. Thus, on several times at the witness
stand, she had been observed smiling and not candid with her declarations. (TSN, February 7, 1996, p.
13). On one occasion, after stating that Adel Tuangco and Sonny Tuangco have nothing to do with the
rape-slay of Aurea Eugenio, witness Baliber immediately laughed. (Ibid, pp. 25-26).11

The theory of the accused-appellant that Sanggalan "could not truthfully and convincingly convey what
really transpired on that fateful night" because he had no formal schooling in a school for special
persons like him and the interpreter was not the one who had taught him is not tenable.

A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving, can make
known their perception to others, may be witnesses.12 Deaf-mutes are competent witnesses where they
(1) can understand and appreciate the sanctity of an oath; (2) can comprehend facts they are going to
testify on; and (3) can communicate their ideas through a qualified interpreter.13 Thus, in People vs. De
Leon14 and People vs. Sasota,15 the accused was convicted on the basis of the testimony of a deaf-mute.
Although in People vs. Bustos16 the testimony of a deaf-mute was rejected, this was because there were
times during his testimony that the interpreter could not make out what the witness meant by the signs
she used. In the instant case, the interpreter was a certified sign language interpreter with twenty-two
(22) years teaching experience at the Philippine School for the Deaf, had exposure in television
programs and had testified in five other previous court proceedings. She possessed special education
and training for interpreting sign language. The trial court evaluated her competence to put on record
with accuracy the declaration made by witness Sanggalan on the witness stand, and she testified that
she employed the natural or homemade sign method.17 Needless to stress, the manner in which the
examination of a deaf-mute should be conducted is a matter to be regulated and controlled by the trial
court in its discretion, and the method adopted will not be reviewed by the appellate court in the

568
absence of a showing that the complaining party was in some way injured by reason of the particular
method adopted.18 The imperfections or inconsistencies cited in appellants' brief arise from the fact that
there is some difficulty in eliciting testimony where the witness is deaf-mute, but these do not detract
from the credibility of his testimony, much less justify the total rejection of the same. What is material is
that he knew personally the accused-appellants, was with them on the fateful night when the incident
happened, and had personally witnessed the rape-slay and theft three and ½ (3 ½) meters away from
the scene. He did not waver in the identification of the three accused despite rigorous cross-
examination, and positively pointed to the accused-appellants as the persons who raped and killed
Eugenio and took her personal effects.19 The trial court's assessment of the credibility of Sanggalan,
whose testimony was found to be candid and straightforward, deserves the highest respect of this Court.

Moreover, the testimony of Sanggalan was corroborated by the doctor who conducted the autopsy. Dr.
Aguda testified that Eugenio had nine (9) stab wounds on the neck, fresh hymenal lacerations and
massive blood clots within the vaginal canal, caused, among others, by the entry of a hard foreign object
like a bottle and that the abrasions and hematomas on the cadaver indicated that Eugenio struggled
during the assault.20

The defense of alibi must yield to the positive identification of the accused-appellants by Sanggalan, and
the attempt of the mother of the accused-appellants, Erlinda Tuangco, a sister, Glessen Tuangco, and
the common-law wife of Adel Tuangco, Liza Reyes, to corroborate such a defense must fail. Moreover,
no proof was adduced to show the physical impossibility of the accused being at the scene of the crime;
the evidence shows that the rape-slay took place in Sitio Dalan Baka, Barangay Sulipan, Municipality of
Apalit, Pampanga, which was ten to fifteen minutes from the residence of Adel Tuangco in Frances Bukid,
Calumpit, Bulacan.21 In the case of Sonny Tuangco, who went into hiding after learning that his brother
Adel was arrested, and who stayed with a relative in Caloocan City for about one (1) year until he was
apprehended by the police authorities,22 his flight should be taken as an admission of his guilt.

We also find no cogent reason to disturb the finding of conspiracy among the accused-appellants as
rationalized by the trial court thus:

"First, they were together drinking in a pubhouse from where they proceeded to the rice field and
stayed inside a nearby waiting shed.

Second, as soon as the victim was seen walking towards her house, the three (3) accused immediately
followed her.

Third, when they caught up with the victim, they simultaneously attacked her by stabbing her neck with
bladed weapon. Thereafter, when the victim fell down, the accused aided each other in raping the
victim.

Fourth, before fleeing from the scene of the crimes, the accused took the victim's cash money and
personal belongings."23

The imposable penalty for the rape with homicide is death. Pursuant to Article 335 of the Revised Penal
Code, as amended by Section 11 of the Republic Act No. 7659, "when by reason or on the occasion of
the rape, a homicide is committed, the penalty shall be death". Because of the finding of conspiracy in
the commission of the complex crime of rape with homicide, the imposition of two death penalties upon
each of the accused-appellants is correct.24

The imposable penalty for theft is prision correcional in its minimum and medium period, if the value of
the thing stolen is more than P200.00 but does not exceed P6,000.00. In this case, the amount of
P3,000.00 which is the cash taken from the victim, was the only amount proven, as the value of the
other objects taken was not established. Thus, the trial court correctly imposed an indeterminate
penalty of six (6) months of arresto mayor as minimum to two (2) years, eleven (11) months and ten (10)
days of prision correcional as maximum.

The civil indemnity must also be modified in line with prevailing jurisprudence.25 Thus, the civil
indemnity ex delicto should be P100,000.00 for the victim's death. The award of exemplary damages is

569
justified in view of the presence of the aggravating circumstances of cruelty, as the insertion of the
bottle into the private part of the victim caused unnecessary moral and physical pain while the victim
was still alive.

Four justices of this Court, however, have continued to maintain the unconstitutionality of Republic Act
No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the
majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed
in the case at bar.

WHEREFORE, the judgment convicting Adel Tuangco y Dizon and Sonny Tuangco y Dizon for the crimes
of theft and rape with homicide in Criminal Case Nos. 95-1609(M) and 95-1610(M) is hereby affirmed
with the modification that the civil indemnity ex delicto is increased to P100,000.00.

Upon finality of this decision, let certified true copies thereof, as well as the records of this case, be
forthwith forwarded to the Office of the President for possible exercise of the pardoning power.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

[G.R. No. 112443. January 25, 2002.]

TERESITA P. BORDALBA, Petitioner, v. COURT OF APPEALS, HEIRS OF NICANOR JAYME, namely,

CANDIDA FLORES, EMANNUEL JAYME, DINA JAYME DEJORAS, EVELIA JAYME, and GESILA JAYME; AND
HEIRS OF ASUNCION JAYME-BACLAY, namely, ANGELO JAYME-BACLAY, CARMEN JAYME-DACLAN and
ELNORA JAYME BACLAY, Respondents.

DECISION

YNARES-SANTIAGO, J.:

This is a petition for review under Rule 45 of the Rules of Court seeking to set aside the October 20,
1992 Decision of the Court of Appeals 1 in CA-G.R. CV No. 27419, which affirmed with modification the
Decision 2 of the Regional Trial Court of Mandaue, Branch 28, in Civil Case No. MAN-386.chanrob1es
virtua1 1aw 1ibrary

The instant controversy stemmed from Lot No. 1242 (Lot No. 799-C) with an area of 1,853 square
meters and located at Barrio Looc, Mandaue City. The subject lot is part of a parcel of land situated on
the corner of Mabini and Plaridel Streets in Mandaue City, and originally owned by the late spouses
Carmeno Jayme and Margarita Espina de Jayme. In 1947, an extrajudicial partition, 3 written in the
Spanish language was executed, describing said parcel of land as —

2. otra parcela de terreno urbano en el barrio de Look, Mandawe, Cebu, que linda al N. con la Calle
Mabini y propiodades de F. Jayme; al E. linda con propiodades de Fernando Antigua; al S. linda con
propiodades de Lucas y Victoriano Jayme, y al O. linda con la Calle Plaridel. La propiodad descrita esta
avaluada, con todas sus mejoras, en la cantidad de MIL Y CINCUENTA PESOS ------------ P1,050.00. 4

and disposing, inter alia, the same parcel of land as follows:chanrob1es virtual 1aw library

1) 1/3 in favor of - (a) their grandchild Nicanor Jayme, the deceased spouse of private respondent
Candida Flores and the father of private respondents Emmanuel, Dina, Evelia and Gesila, all surnamed
Jayme; and (b) their grandchild Asuncion Jayme-Baclay, whose heirs are private respondents Agelio
Baclay, Elnora Baclay and Carmen Jayme-Daclan;

2) 1/3 to their daughter Elena Jayme Vda. de Perez, mother of petitioner Teresita P. Bordalba; and

570
3) 1/3 to an unidentified party.

Built on the land adjudicated to the heirs of the spouses is Nicanor Jayme’s house, which his family
occupied since 1945.

Sometime in July 1964, Elena Jayme Vda. de Perez, petitioner’s mother, filed with the Regional Trial
Court of Cebu, Branch IV, an amended application for the registration 5 of the lot described with the
following boundaries:chanrob1es virtual 1aw library

N - Fruelana Jayme & Road

S - Felicitas de Latonio

E - Agustin de Jayme

W - Porfirio Jayme, Lot No. 1 and Vivencio Abellana

Elena Jayme Vda. de Perez alleged that the lot sought to be registered was originally a part of a land
owned by her late parents, the spouses Carmeno Jayme and Margarita Espina de Jayme; and that 1/3 of
said land was adjudicated to her in an extrajudicial partition. She further stated that a portion of the lot
for which title is applied for is occupied by Nicanor Jayme with her permission.

Consequently, Nicanor Jayme and Asuncion Jayme-Baclay filed their opposition 6 contending that said
application included the 1/3 portion inherited by them in the 1947 extrajudicial partition. The case was,
however, dismissed for lack of interest of the parties.

Subsequently, petitioner filed with the Bureau of Lands of Cebu City an application 7 dated January 10,
1979, seeking the issuance of a Free Patent over the same lot subject of the aborted application of her
mother, Elena Jayme, now known as Lot No. 1242 (799-C), described as follows:chanrob1es virtual 1aw
library

North: Froilan Jayme and Road

East: Agustin Jayme

South: Alfredo Alivio and Spouses Hilario Gandecila

West: Hilario Gandecila Porferio Jayme and Heirs of Vevencio Abellanosa 8

On April 16, 1980, petitioner was successfully granted Free Patent No. (VII-I) 11421 and Original
Certificate of Title No. 0-571 (FP) over said lot. 9 Thereafter, petitioner caused the subdivision and titling
of Lot No. 1242 (799-C), into 6 lots, 10 as well as the disposition of two parcels thereof, thus:chanrob1es
virtual 1aw library

1) Lot No. 1242-A with an area of 581 square meters covered by Transfer Certificate of Title No. 22771
(FP) in the name of spouses Genaro U. Cabahug and Rita Capala, to whom petitioner sold said lot;

2) Lot No. 1242-B with an area of 420 square meters covered by TCT No. 22772 in the name of Teresita P.
Bordalba, and which the latter mortgaged with the Rural Bank of Mandaue;

3) Lot No. 1242-C with an area of 210 square meters covered by TCT 22773 in the name of Teresita P.
Bordalba;

4) Lot No. 1242-D with an area of 210 square meters covered by TCT 22774 in the name of Teresita
Bordalba;

5) Lot No. 1242-E with an area of 216 square meters covered by TCT 22775 in the name of Teresita P.

571
Bordalba;

6) Lot No. 1242-F with an area of 216 square meters and covered by TCT No. 22776 in the name of
Teresita P. Bordalba.

Upon learning of the issuance in favor of petitioner of the aforesaid Free Patent and Original Certificate
of Title over Lot No. 1242, as well as the conveyances made by petitioner involving the lot subject of the
controversy, private respondents filed with the Regional Trial Court of Mandaue City, Branch 28, the
instant complaint against petitioner Teresita Bordalba, spouses Genaro U. Cabahug, and Rita Capala,
Rural Bank of Mandaue and the Director of the Bureau of Lands.

In the said complaint, private respondents prayed that Free Patent No. (VII-I) 11421 and OCT No. 0-571
(FP), as well as TCT Nos. 22771-22776 be declared void and ordered cancelled. Private respondents also
prayed that they be adjudged owners of Lot No. 1242 (799-C), and that spouses Genaro V. Cabahug and
Rita Capala as well as the Rural Bank of Mandaue be declared buyers and mortgagee in bad faith,
respectively. In addition, they asked the court to award them actual, compensatory, and moral damages
plus attorney’s fees in the amount of P20,000.00.

Petitioner, on the other hand, averred that Lot No. 1242 (799-C) was acquired by her through purchase
from her mother, 11 who was in possession of the lot in the concept of an owner since 1947. In her
answer, petitioner traced her mother’s ownership of the lot partly from the 1947 deed of extra-judicial
partition presented by private respondents, 12 and claimed that Nicanor Jayme, and Candida Flores
occupied a portion of Lot No. 1242 (799-C) by mere tolerance of her mother. On cross-examination,
petitioner admitted that the properties of the late Carmeno Jayme and Margarita Espina de Jayme were
partitioned by their heirs in 1947, but claimed that she was not aware of the existence of said Deed of
Extrajudicial Partition. She, however, identified one of the signatures in the said Deed to be the
signature of her mother. 13

On May 28, 1990, the trial court, finding that fraud was employed by petitioner in obtaining Free Patent
No. (VII-I) 11421 and OCT No. 0-571 (FP), declared said patent and title void and ordered its cancellation.
However, it declared that spouses Genaro U. Cabahug and Rita Capala as well as the Rural Bank of
Mandaue are purchasers and mortgagee in good faith, respectively; and consequently upheld as valid
the sale of Lot No. 1242-A covered by Transfer Certificate of Title No. 22771 (FP) to spouses Genaro U.
Cabahug and Rita Capala, and the mortgage of Lot No. 1242-B covered by TCT No. 22772 in favor of the
Rural Bank of Mandaue. The dispositive portion of the decision reads:chanrob1es virtual 1aw library

WHEREFORE, foregoing premises considered, Decision is hereby rendered in favor of the plaintiffs
by:chanrob1es virtual 1aw library

1) declaring Free Patent No. (VII-I) 11421 as well as the Original Certificate of Title No. 0-57 (FP) and all
subsequent certificates of title as a result of the subdivision of Lot No. 1242 except TCT No. 22771 (FP)
as null and void and ordering the Register of Deeds of Mandaue City to cancel them;

2) declaring spouses defendants Genaro U. Cabahug and Rita Capala as buyers in good faith and are the
legal and rightful owners of Lot No. 1242-A as described in TCT No. 22771(FP);

3) declaring the Rural Bank of Mandaue, Inc. as mortgagee in good faith and the mortgage lien in its
favor be carried over to and be annotated in the new certificate of title to be issued under the names of
the plaintiffs;

4) declaring the plaintiffs as the legal and rightful owners of Lot 1242 and ordering the issuance of the
certificate of title in their names;

5) dismissing the claims of the defendant spouses Cabahug and Capala and the defendant Rural Bank of
Mandaue, Inc. for lack of merit;

6) ordering the defendant Teresita Bordalba to pay plaintiffs the following amounts:chanrob1es virtual
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572
(a) P5,000.00 as actual and litigation expenses;

(b) P20,000.00 as attorney’s fees, and,

7) ordering defendant Bordalba to pay the costs.

SO ORDERED. 14

Both petitioner Teresita Bordalba and private respondents appealed to the Court of Appeals, which
affirmed with modification the decision of the trial court. It ruled that since private respondents are
entitled only to 1/3 portion of Lot No. 1242 (799-C), petitioner should be ordered to reconvey 1/3 of Lot
No. 1242 (799-C) to private respondents. The decretal portion of the respondent court’s decision
states:chanrob1es virtual 1aw library

WHEREFORE, the challenged decision is MODIFIED to order the reconveyance of one-third of the subject
land in favor of the plaintiff-appellees in lieu of the cancellation of the Certificates of Title issued and
their declaration as the owners of Lot No. 1242 in its entirety. The rest is AFFIRMED in toto.

SO ORDERED. 15

Thus, petitioner filed the instant petition, assailing the decision of the Court of Appeals. Petitioner
contends that the testimonies given by the witnesses for private respondents which touched on matters
occurring prior to the death of her mother should not have been admitted by the trial court, as the same
violated the dead man’s statute. Likewise, petitioner questions the right of private respondents to
inherit from the late Nicanor Jayme and Asuncion Jayme-Baclay, as well as the identity between the
disputed lot and the parcel of land adjudicated in the Deed of Extra-judicial Partition.

The contentions are without merit. It is doctrinal that findings of facts of the Court of Appeals upholding
those of the trial court are binding upon this Court. While there are exceptions to this rule, petitioner
has not convinced us that this case falls under one of them. 16

The Court sees no reason to deviate from the findings of the trial court that petitioner resorted to fraud
and misrepresentation in obtaining a free patent and title over the lot under scrutiny. The Court of
Appeals correctly pointed out that misrepresentation tainted petitioner’s application, insofar as her
declaration that the land applied for was not occupied or claimed by any other person. Her declaration
is belied by the extrajudicial partition which she acknowledged, her mother’s aborted attempt to have
the lot registered, private respondents’ predecessors-in-interest’s opposition thereto, and by the
occupancy of a portion of the said lot by Nicanor Jayme and his family since 1945.

It is a settled rule that the Land Registration Act protects only holders of title in good faith, and does not
permit its provision to be used as a shield for the commission of fraud, or as a means to enrich oneself at
the expense of others. 17

As to the alleged violation of the dead man’s statute, 18 suffice it to state that said rule finds no
application in the present case. The dead man’s statute does not operate to close the mouth of a
witness as to any matter of fact coming to his knowledge in any other way than through personal
dealings with the deceased person, or communication made by the deceased to the witness. 19

Since the claim of private respondents and the testimony of their witnesses in the present case is based,
inter alia, on the 1947 Deed of Extra-judicial Partition and other documents, and not on dealings and
communications with the deceased, the questioned testimonies were properly admitted by the trial
court.

Likewise untenable is the claim of petitioner that private respondents are not legal heirs of Nicanor
Jayme and Asuncion Jayme-Baclay. Other than their bare allegations to dispute their heirship, no hard
evidence was presented by them to substantiate their allegations. Besides, in order that an heir may
assert his right to the property of a deceased, no previous judicial declaration of heirship is necessary. 20

573
Anent the issue of identity, the disparity in the boundaries of Lot No. 1242 (799-C) vis-à-vis the
boundaries of the lot referred to in the 1947 Deed of Extra-judicial Partition can be explained by the fact
that Lot No. 1242 (799-C) is only a portion of the entire parcel of land described in the Deed, a 1/3 pro-
indiviso portion of which was adjudicated each to, first, petitioner’s mother, second, to the
predecessors-in-interest of private respondents, and third, to an unidentified party. Logically therefore,
their boundaries will not be similar. At any rate, the records show that the parcel of land adjudicated to
the predecessors-in-interest of the parties herein was the lot found on the corner of Plaridel and Mabini
Streets in Looc, Mandaue City. As admitted further by both parties, Lot No. 1242 (799-C) was part of the
land allotted to their predecessors-in-interest in the 1947 Deed of Extra-judicial Partition. Moreover,
petitioner’s mother acknowledged in her application for registration of Lot No. 1242 that the Deed of
Extra-judicial Partition was the source of her claim over the lot sought to be registered. She further
admitted that the lot now known as Lot No. 1242 (799-C) was part of the parcel of land inherited by her
and her co-heirs, to the extent of 1/3 share each. Under Section 31, Rule 130, of the Revised Rules on
Evidence, where one derives title to property from another, the act, declaration, or omission of the
latter, while holding the title, in relation to the property, is evidence against the former.

Considering that Lot No. 1242 (799-C) is part of the parcel of land over which private respondents’
predecessors-in-interest is entitled to 1/3 pro-indiviso share, which was disregarded by petitioner when
she secured a Free Patent and Original Certificate of Title in her name, to the exclusion of private
respondents’ predecessors-in-interest, the trial court and the Court of Appeals, therefore, did not err in
upholding the right of private respondents as co-owners, and ordering the petitioner to reconvey 1/3 of
the lot in question to them.

Notwithstanding the foregoing, however, the Court is unable to determine what part of Lot No. 1242
(799-C) is within the boundaries of the parcel of land inherited in the 1947 Deed of Extra-judicial
Partition by the predecessors-in-interest of the parties herein. This is so because private respondents did
not show the extent of the said land mentioned in the 1947 Deed of Extra-judicial Partition in relation to
Lot No. 1242 (799-C). While they presented the boundaries of the parcel of land adjudicated in the Deed,
to wit:chanrob1es virtual 1aw library

North: Calle Mabini y propiodades de F. Jayme

East: Propiodades de Fernando Antigua

South: Propiodades de Lucas y Victoriano Jayme

West: Calle Plaridel

they did not, however, show where these boundaries are found in relation to the boundaries of Lot No.
1242 (799-C). Absent a fixed boundary of the parcel of land adjudicated in the Deed, which they claim
Lot No. 1242 (799-C) is a part of, the Court cannot determine the extent to which the lot now known as
Lot No. 1242 (799-C) is included. Admittedly, the north boundary of Lot No. 1242 (799-C) (Property of
Froilan Jaime and Mabini Street) is similar to the north boundary of the land mentioned in the Deed.
With only one reference point, however, the south, east and west boundaries of Lot No. 1242 (799-C)
cannot be established with certainty to be within the parcel of land described in the Deed of Extra-
judicial Partition.

In Beo v. Court of Appeals, 21 of the Court held that in order that an action for recovery of possession
may prosper, it is indispensable that he who brings the action must fully prove not only his ownership
but also the identity of the property claimed by describing the location, area and boundaries thereof. So
that when the record does not show that the land subject matter of the action has been exactly
determined, the action cannot prosper, inasmuch as the plaintiff’s ownership rights in the land claimed
do not appear satisfactorily and conclusively proven at the trial.chanrob1es virtua1 1aw 1ibrary

In the present case, while it is true that private respondents were not able to show the extent of their
1/3 pro indiviso right over Lot No. 1242 (799-C), they have nevertheless established their claim over the
said lot. Hence, in line with our ruling in the case of Laluan v. Malpaya, 22 the prudent recourse would

574
be to remand the case to the lower court for a new trial.

WHEREFORE, in view of all the foregoing, the October 20, 1992 Decision of the Court of Appeals in CA-
G.R. CV No. 27419, and the May 28, 1990 Decision of the Regional Trial Court of Mandaue City, Branch
28, in Civil Case No. MAN-386, insofar as it relates to the recognition of the 1/3 share of private
respondents over Lot No. 1242 (799-C) is AFFIRMED. The case is remanded to the trial court in order to
determine what part of Lot No. 1242 (799-C) is included in the parcel of land adjudicated in the 1947
Deed of Extra-judicial Partition to the predecessors-in-interest of the parties herein.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Pardo, JJ., concur.

G.R. No. 74306 March 16, 1992

ENRIQUE RAZON, petitioner,

vs.
INTERMEDIATE APPELLATE COURT and VICENTE B. CHUIDIAN, in his capacity as Administrator of the
Estate of the Deceased JUAN T. CHUIDIAN, respondents.

G.R. No. 74315 March 16, 1992

VICENTE B. CHUIDIAN, petitioner,

vs.
INTERMEDIATE APPELLATE COURT, ENRIQUE RAZ0N, and E. RAZON, INC., respondents.

GUTIERREZ, JR., J.:

The main issue in these consolidated petitions centers on the ownership of 1,500 shares of stock in E.
Razon, Inc. covered by Stock Certificate No. 003 issued on April 23, 1966 and registered under the name
of Juan T. Chuidian in the books of the corporation. The then Court of First Instance of Manila, now
Regional Trial Court of Manila, declared that Enrique Razon, the petitioner in G.R. No. 74306 is the
owner of the said shares of stock. The then Intermediate Appellate Court, now Court of Appeals,
however, reversed the trial court's decision and ruled that Juan T. Chuidian, the deceased father of
petitioner Vicente B. Chuidian in G.R. No. 74315 is the owner of the shares of stock. Both parties filed
separate motions for reconsideration. Enrique Razon wanted the appellate court's decision reversed and
the trial court's decision affirmed while Vicente Chuidian asked that all cash and stock dividends and all
the pre-emptive rights accruing to the 1,500 shares of stock be ordered delivered to him. The appellate
court denied both motions. Hence, these petitions.

The relevant Antecedent facts are as follows:

In his complaint filed on June 29, 1971, and amended on November 16, 1971, Vicente B.
Chuidian prayed that defendants Enrique B. Razon, E. Razon, Inc., Geronimo Velasco,
Francisco de Borja, Jose Francisco, Alfredo B. de Leon, Jr., Gabriel Llamas and Luis M. de
Razon be ordered to deliver certificates of stocks representing the shareholdings of the
deceased Juan T. Chuidian in the E. Razon, Inc. with a prayer for an order to restrain the
defendants from disposing of the said shares of stock, for a writ of preliminary
attachment v. properties of defendants having possession of shares of stock and for
receivership of the properties of defendant corporation . . .

xxx xxx xxx

In their answer filed on June 18, 1973, defendants alleged that all the shares of stock in
the name of stockholders of record of the corporation were fully paid for by defendant,
Razon; that said shares are subject to the agreement between defendants and

575
 incorporators; that the shares of stock were actually owned and remained in the
possession of Razon. Appellees also alleged . . . that neither the late Juan T. Chuidian nor
the appellant had paid any amount whatsoever for the 1,500 shares of stock in
question . . .

xxx xxx xxx

The evidence of the plaintiff shown that he is the administrator of the intestate estate of
Juan Telesforo Chuidian in Special Proceedings No. 71054, Court of First Instance of
Manila.

Sometime in 1962, Enrique Razon organized the E. Razon, Inc. for the purpose of bidding
for the arrastre services in South Harbor, Manila. The incorporators consisted of Enrique
Razon, Enrique Valles, Luisa M. de Razon, Jose Tuason, Jr., Victor Lim, Jose F. Castro and
Salvador Perez de Tagle.

On April 23, 1966, stock certificate No. 003 for 1,500 shares of stock of defendant
corporation was issued in the name of Juan T. Chuidian.

On the basis of the 1,500 shares of stock, the late Juan T. Chuidian and after him, the
plaintiff-appellant, were elected as directors of E. Razon, Inc. Both of them actually
served and were paid compensation as directors of E. Razon, Inc.

From the time the certificate of stock was issued on April 1966 up to April 1971, Enrique
Razon had not questioned the ownership by Juan T. Chuidian of the shares of stock in
question and had not brought any action to have the certificate of stock over the said
shares cancelled.

The certificate of stock was in the possession of defendant Razon who refused to deliver
said shares to the plaintiff, until the same was surrendered by defendant Razon and
deposited in a safety box in Philippine Bank of Commerce.

Defendants allege that after organizing the E. Razon, Inc., Enrique Razon distributed
shares of stock previously placed in the names of the withdrawing nominal
incorporators to some friends including Juan T. Chuidian

Stock Certificate No. 003 covering 1,500 shares of stock upon instruction of the late
Chuidian on April 23, 1986 was personally delivered by Chuidian on July 1, 1966 to the
Corporate Secretary of Attorney Silverio B. de Leon who was himself an associate of the
Chuidian Law Office (Exhs. C & 11). Since then, Enrique Razon was in possession of said
stock certificate even during the lifetime of the late Chuidian, from the time the late
Chuidian delivered the said stock certificate to defendant Razon until the time (sic) of
defendant Razon. By agreement of the parties (sic) delivered it for deposit with the bank
under the joint custody of the parties as confirmed by the trial court in its order of
August 7, 1971.

Thus, the 1,500 shares of stook under Stock Certificate No. 003 were delivered by the
late Chuidian to Enrique because it was the latter who paid for all the subscription on
the shares of stock in the defendant corporation and the understanding was that he
(defendant Razon) was the owner of the said shares of stock and was to have possession
thereof until such time as he was paid therefor by the other nominal
incorporators/stockholders (TSN., pp. 4, 8, 10, 24-25, 25-26, 28-31, 31-32, 60, 66-68, July
22, 1980, Exhs. "C", "11", "13" "14"). (Ro11o — 74306, pp. 66-68)

In G.R. No. 74306, petitioner Enrique Razon assails the appellate court's decision on its alleged
misapplication of the dead man's statute rule under Section 20(a) Rule 130 of the Rules of Court.
According to him, the "dead man's statute" rule is not applicable to the instant case. Moreover, the
private respondent, as plaintiff in the case did not object to his oral testimony regarding the oral

576
agreement between him and the deceased Juan T. Chuidian that the ownership of the shares of stock
was actually vested in the petitioner unless the deceased opted to pay the same; and that the petitioner
was subjected to a rigid cross examination regarding such testimony.

Section 20(a) Rule 130 of the Rules of Court (Section 23 of the Revised Rules on Evidence) States:

Sec. 20. Disqualification by reason of interest or relationship — The following persons

cannot testify as to matters in which they are interested directly or indirectly, as herein
enumerated.

(a) Parties or assignors of parties to a case, or persons in whose behalf a case is

prosecuted, against an executor or administrator or other representative of a deceased
person, or against a person of unsound mind, upon a claim or demand against the
estate of such deceased person or against such person of unsound mind, cannot testify
as to any matter of fact accruing before the death of such deceased person or before
such person became of unsound mind." (Emphasis supplied)

xxx xxx xxx

The purpose of the rule has been explained by this Court in this wise:

The reason for the rule is that if persons having a claim against the estate of the
deceased or his properties were allowed to testify as to the supposed statements made
by him (deceased person), many would be tempted to falsely impute statements to
deceased persons as the latter can no longer deny or refute them, thus unjustly
subjecting their properties or rights to false or unscrupulous claims or demands. The
purpose of the law is to "guard against the temptation to give false testimony in regard
to the transaction in question on the part of the surviving party." (Tongco v. Vianzon, 50
Phil. 698; Go Chi Gun, et al. v. Co Cho, et al., 622 [1955])

The rule, however, delimits the prohibition it contemplates in that it is applicable to a case against the
administrator or its representative of an estate upon a claim against the estate of the deceased person.
(See Tongco v. Vianzon, 50 Phil. 698 [1927])

In the instant case, the testimony excluded by the appellate court is that of the defendant (petitioner
herein) to the affect that the late Juan Chuidian, (the father of private respondent Vicente Chuidian, the
administrator of the estate of Juan Chuidian) and the defendant agreed in the lifetime of Juan Chuidian
that the 1,500 shares of stock in E. Razon, Inc. are actually owned by the defendant unless the deceased
Juan Chuidian opted to pay the same which never happened. The case was filed by the administrator of
the estate of the late Juan Chuidian to recover shares of stock in E. Razon, Inc. allegedly owned by the
late Juan T. Chuidian.

It is clear, therefore, that the testimony of the petitioner is not within the prohibition of the rule. The
case was not filed against the administrator of the estate, nor was it filed upon claims against the estate.

Furthermore, the records show that the private respondent never objected to the testimony of the
petitioner as regards the true nature of his transaction with the late elder Chuidian. The petitioner's
testimony was subject to cross-examination by the private respondent's counsel. Hence, granting that
the petitioner's testimony is within the prohibition of Section 20(a), Rule 130 of the Rules of Court, the
private respondent is deemed to have waived the rule. We ruled in the case of Cruz v. Court of
Appeals (192 SCRA 209 [1990]):

It is also settled that the court cannot disregard evidence which would ordinarily be
incompetent under the rules but has been rendered admissible by the failure of a party
to object thereto. Thus:

. . . The acceptance of an incompetent witness to testify in a civil suit, as well as the

allowance of improper questions that may be put to him while on the stand is a matter

577
 resting in the discretion of the litigant. He may assert his right by timely objection or he
may waive it, expressly or by silence. In any case the option rests with him.
Once admitted, the testimony is in the case for what it is worth and the judge has no
power to disregard it for the sole reason that it could have been excluded, if it had been
objected to, nor to strike it out on its own motion (Emphasis supplied). (Marella v. Reyes,
12 Phil. 1.)

The issue as to whether or not the petitioner's testimony is admissible having been settled, we now
proceed to discuss the fundamental issue on the ownership of the 1,500 shares of stock in E. Razon, Inc.

E. Razon, Inc. was organized in 1962 by petitioner Enrique Razon for the purpose of participating in the
bidding for the arrastre services in South Harbor, Manila. The incorporators were Enrique Razon,
Enrique Valles, Luisa M. de Razon, Jose Tuazon, Jr., Victor L. Lim, Jose F. Castro and Salvador Perez de
Tagle. The business, however, did not start operations until 1966. According to the petitioner, some of
the incorporators withdrew from the said corporation. The petitioner then distributed the stocks
previously placed in the names of the withdrawing nominal incorporators to some friends, among them
the late Juan T. Chuidian to whom he gave 1,500 shares of stock. The shares of stock were registered in
the name of Chuidian only as nominal stockholder and with the agreement that the said shares of stock
were owned and held by the petitioner but Chuidian was given the option to buy the same. In view of
this arrangement, Chuidian in 1966 delivered to the petitioner the stock certificate covering the 1,500
shares of stock of E. Razon, Inc. Since then, the Petitioner had in his possession the certificate of stock
until the time, he delivered it for deposit with the Philippine Bank of Commerce under the parties' joint
custody pursuant to their agreement as embodied in the trial court's order.

The petitioner maintains that his aforesaid oral testimony as regards the true nature of his agreement
with the late Juan Chuidian on the 1,500 shares of stock of E. Razon, Inc. is sufficient to prove his
ownership over the said 1,500 shares of stock.

The petitioner's contention is not correct.

In the case of Embassy Farms, Inc. v. Court of Appeals (188 SCRA 492 [1990]) we ruled:

. . . For an effective, transfer of shares of stock the mode and manner of transfer as
prescribed by law must be followed (Navea v. Peers Marketing Corp., 74 SCRA 65).
As provided under Section 3 of Batas Pambansa Bilang, 68 otherwise known as the
Corporation Code of the Philippines, shares of stock may be transferred by delivery to
the transferee of the certificate properly indorsed. Title may be vested in the transferee
by the delivery of the duly indorsed certificate of stock (18 C.J.S. 928, cited in Rivera v.
Florendo, 144 SCRA 643). However, no transfer shall be valid, except as between the
parties until the transfer is properly recorded in the books of the corporation (Sec. 63,
Corporation Code of the Philippines; Section 35 of the Corporation Law)

In the instant case, there is no dispute that the questioned 1,500 shares of stock of E. Razon, Inc. are in
the name of the late Juan Chuidian in the books of the corporation. Moreover, the records show that
during his lifetime Chuidian was ellected member of the Board of Directors of the corporation which
clearly shows that he was a stockholder of the corporation. (See Section 30, Corporation Code) From the
point of view of the corporation, therefore, Chuidian was the owner of the 1,500 shares of stock. In such
a case, the petitioner who claims ownership over the questioned shares of stock must show that the
same were transferred to him by proving that all the requirements for the effective transfer of shares of
stock in accordance with the corporation's by laws, if any, were followed (See Nava v. Peers Marketing
Corporation, 74 SCRA 65 [1976]) or in accordance with the provisions of law.

The petitioner failed in both instances. The petitioner did not present any by-laws which could show
that the 1,500 shares of stock were effectively transferred to him. In the absence of the corporation's
by-laws or rules governing effective transfer of shares of stock, the provisions of the Corporation Law
are made applicable to the instant case.

578
The law is clear that in order for a transfer of stock certificate to be effective, the certificate must be
properly indorsed and that title to such certificate of stock is vested in the transferee by the delivery of
the duly indorsed certificate of stock. (Section 35, Corporation Code) Since the certificate of stock
covering the questioned 1,500 shares of stock registered in the name of the late Juan Chuidian was
never indorsed to the petitioner, the inevitable conclusion is that the questioned shares of stock belong
to Chuidian. The petitioner's asseveration that he did not require an indorsement of the certificate of
stock in view of his intimate friendship with the late Juan Chuidian can not overcome the failure to
follow the procedure required by law or the proper conduct of business even among friends. To
reiterate, indorsement of the certificate of stock is a mandatory requirement of law for an effective
transfer of a certificate of stock.

Moreover, the preponderance of evidence supports the appellate court's factual findings that the shares
of stock were given to Juan T. Chuidian for value. Juan T. Chuidian was the legal counsel who handled
the legal affairs of the corporation. We give credence to the testimony of the private respondent that
the shares of stock were given to Juan T. Chuidian in payment of his legal services to the corporation.
Petitioner Razon failed to overcome this testimony.

In G.R. No. 74315, petitioner Vicente B. Chuidian insists that the appellate court's decision declaring his
deceased father Juan T. Chuidian as owner of the 1,500 shares of stock of E. Razon, Inc. should have
included all cash and stock dividends and all the pre-emptive rights accruing to the said 1,500 shares of
stock.

The petition is impressed with merit.

The cash and stock dividends and all the pre-emptive rights are all incidents of stock ownership.

The rights of stockholders are generally enumerated as follows:

xxx xxx xxx

. . . [F]irst, to have a certificate or other evidence of his status as stockholder issued to

him; second, to vote at meetings of the corporation; third, to receive his proportionate
share of the profits of the corporation; and lastly, to participate proportionately in the
distribution of the corporate assets upon the dissolution or winding up. (Purdy's Beach
on Private Corporations, sec. 554) (Pascual v. Del Saz Orozco, 19 Phil. 82, 87)

WHEREFORE, judgment is rendered as follows:

a) In G.R. No. 74306, the petition is DISMISSED. The questioned decision and resolution of the then
Intermediate Appellate Court, now the Court of Appeals, are AFFIRMED. Costs against the petitioner.

b) In G.R. No. 74315, the petition is GRANTED. The questioned Resolution insofar as it denied the
petitioner's motion to clarify the dispositive portion of the decision of the then Intermediate Appellate
Court, now Court of Appeals is REVERSED and SET ASIDE. The decision of the appellate court is
MODIFIED in that all cash and stock dividends as, well as all pre-emptive rights that have accrued and
attached to the 1,500 shares in E. Razon, Inc., since 1966 are declared to belong to the estate of Juan T.
Chuidian.

SO ORDERED.

Bidin, Davide, Jr. and Romero, JJ., concur.

Feliciano, J., is on leave.

G.R. No. 143340. August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, Petitioners, vs. LAMBERTO T. CHUA, Respondent.

579
DECISION

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of the Decision 1 of the
Court of Appeals dated January 31, 2000 in the case entitled Lamberto T. Chua vs.

Lilibeth Sunga Chan and Cecilia Sunga and of the Resolution dated May 23, 2000 denying the motion for
reconsideration of herein petitioners Lilibeth Sunga Chan and Cecilia Sunga (hereafter collectively
referred to as petitioners).

The pertinent facts of this case are as follows:

On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth Sunga
Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia), daughter and wife,
respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for Winding Up of Partnership Affairs,
Accounting, Appraisal and Recovery of Shares and Damages with Writ of Preliminary Attachment with
the Regional Trial Court, Branch 11, Sindangan, Zamboanga del Norte.

Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the distribution
of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience, respondent and Jacinto
allegedly agreed to register the business name of their partnership, SHELLITE GAS APPLIANCE CENTER
(hereafter Shellite), under the name of Jacinto as a sole proprietorship. Respondent allegedly delivered
his initial capital contribution of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as
his counterpart contribution, with the intention that the profits would be equally divided between them.
The partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a
sister of the wife of respondent, Erlinda Sy. As compensation, Jacinto would receive a managers fee or
remuneration of 10% of the gross profit and Josephine would receive 10% of the net profits, in addition
to her wages and other remuneration from the business.

Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation went
quite well and was profitable. Respondent claimed that he could attest to the success of their business
because of the volume of orders and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell
Petroleum Corporation. While Jacinto furnished respondent with the merchandise inventories, balance
sheets and net worth of Shellite from 1977 to 1989, respondent however suspected that the amount
indicated in these documents were understated and undervalued by Jacinto and Josephine for their own
selfish reasons and for tax avoidance.

Upon Jacintos death in the later part of 1989, his surviving wife, petitioner Cecilia and particularly his
daughter, petitioner Lilibeth, took over the operations, control, custody, disposition and management of
Shellite without respondents consent.

Despite respondents repeated demands upon petitioners for accounting, inventory, appraisal, winding
up and restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth
allegedly continued the operations of Shellite, converting to her own use and advantage its properties.

On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out of alibis and reasons to
evade respondents demands, she disbursed out of the partnership funds the amount of P200,000.00
and partially paid the same to respondent. Petitioner Lilibeth allegedly informed respondent that the
P200,000.00 represented partial payment of the latters share in the partnership, with a promise that the
former would make the complete inventory and winding up of the properties of the business
establishment. Despite such commitment, petitioners allegedly failed to comply with their duty to
account, and continued to benefit from the assets and income of Shellite to the damage and prejudice
of respondent.

On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities and
Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zambaonga del Norte had
jurisdiction over the action. Respondent opposed the motion to dismiss.

580
On January 12, 1993, the trial court finding the complaint sufficient in form and substance denied the
motion to dismiss.

On January 30, 1993, petitioners filed their Answer with Compulsory Counterclaims, contending that
they are not liable for partnership shares, unreceived income/profits, interests, damages and attorneys
fees, that respondent does not have a cause of action against them, and that the trial court has no
jurisdiction over the nature of the action, the SEC being the agency that has original and exclusive
jurisdiction over the case. As counterclaim, petitioner sought attorneys fees and expenses of litigation.

On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the claim for
winding up of partnership affairs, accounting and recovery of shares in partnership affairs, accounting
and recovery of shares in partnership assets /properties should be dismissed and prosecuted against the
estate of deceased Jacinto in a probate or intestate proceeding.

On August 16, 1993, the trial court denied the second motion to dismiss for lack of merit.

On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus with
the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the motion to dismiss.

On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial Conference.

On December 13, 1993, the trial court granted the motion to suspend pre-trial conference.

On November 15, 1994, the Court of Appeals denied the petition for lack of merit.

On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner, as
petitioners failed to show that a reversible error was committed by the appellate
court." 2cräläwvirtualibräry

On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was remanded to
the trial court on April 26, 1995.

On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of the
case on January 17, 1996. Respondent presented his evidence while petitioners were considered to have
waived their right to present evidence for their failure to attend the scheduled date for reception of
evidence despite notice.

On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive portion
of the Decision reads:

WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, as
follows:

(1) DIRECTING them to render an accounting in acceptable form under accounting procedures and
standards of the properties, assets, income and profits of the Shellite Gas Appliance Center since the
time of death of Jacinto L. Sunga, from whom they continued the business operations including all
businesses derived from the Shellite Gas Appliance Center; submit an inventory, and appraisal of all
these properties, assets, income, profits, etc. to the Court and to plaintiff for approval or disapproval;

(2) ORDERING them to return and restitute to the partnership any and all properties, assets, income and
profits they misapplied and converted to their own use and advantage that legally pertain to the plaintiff
and account for the properties mentioned in pars. A and B on pages 4-5 of this petition as basis;

(3) DIRECTING them to restitute and pay to the plaintiff shares and interest of the plaintiff in the
partnership of the listed properties, assets and good will (sic) in schedules A, B and C, on pages 4-5 of
the petition;

581
(4) ORDERING them to pay the plaintiff earned but unreceived income and profits from the partnership
from 1988 to may 30, 1992, when the plaintiff learned of the closure of the store the sum of P35,000.00
per month, with legal rate of interest until fully paid;

(5) ORDERING them to wind up the affairs of the partnership and terminate its business activities
pursuant to law, after delivering to the plaintiff all the interest, shares, participation and equity in the
partnership, or the value thereof in money or moneys worth, if the properties are not physically
divisible;

(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in bad faith and hold them
liable to the plaintiff the sum of P50,000.00 as moral and exemplary damages; and,

(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorneys (sic) and P25,00.00 as
litigation expenses.

NO special pronouncements as to COSTS.

SO ORDERED.3cräläwvirtualibräry

On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case to the
Court of Appeals.

On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the Decision
reads:

WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in all
respects.4cräläwvirtualibräry

On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner.

Hence, this petition wherein petitioner relies upon the following grounds:

1. The Court of Appeals erred in making a legal conclusion that there existed a partnership between
respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the latters invitation and offer and that
upon his death the partnership assets and business were taken over by petitioners.

2. The Court of Appeals erred in making the legal conclusion that laches and/or prescription did not
apply in the instant case.

3. The Court of Appeals erred in making the legal conclusion that there was competent and credible
evidence to warrant the finding of a partnership, and assuming arguendo that indeed there was a
partnership, the finding of highly exaggerated amounts or values in the partnership assets and
profits.5cräläwvirtualibräry

Petitioners question the correctness of the finding of the trial court and the Court of Appeals that a
partnership existed between respondent and Jacinto from 1977 until Jacintos death. In the absence of
any written document to show such partnership between respondent and Jacinto, petitioners argue that
these courts were proscribed from hearing the testimonies of respondent and his witness, Josephine, to
prove the alleged partnership three years after Jacintos death. To support this argument, petitioners
invoke the Dead Mans Statute or Survivorship Rule under Section 23, Rule 130 of the Rules of Court that
provides:

SEC. 23. Disqualification by reason of death or insanity of adverse party.-- Parties or assignors of parties
to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other
representative of a deceased person, or against a person of unsound mind, upon a claim or demand
against the estate of such deceased person, or against such person of unsound mind, cannot testify as to
any matter of fact occurring before the death of such deceased person or before such person became of
unsound mind.

582
Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego,
Josephine, should not have been admitted to prove certain claims against a deceased person (Jacinto),
now represented by petitioners.

We are not persuaded.

A partnership may be constituted in any form, except where immovable property or real rights are
contributed thereto, in which case a public instrument shall be necessary. 6 Hence, based on the
intention of the parties, as gathered from the facts and ascertained from their language and conduct, a
verbal contract of partnership may arise. 7 The essential points that must be proven to show that a
partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in
the profits. 8 Understandably so, in view of the absence of a written contract of partnership between
respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial
evidence to prove said partnership. The crucial issue to settle then is whether or not the Dead Mans
Statute applies to this case so as to render inadmissible respondents testimony and that of his witness,
Josephine.

The Dead Mans Statute provides that if one party to the alleged transaction is precluded from testifying
by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage
of giving his own uncontradicted and unexplained account of the transaction. 9 But before this rule can
be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:

1. The witness is a party or assignor of a party to a case or persons in whose behalf a case is prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person or a

person of unsound mind;

3. The subject-matter of the action is a claim or demand against the estate of such deceased person or
against person of unsound mind;

4. His testimony refers to any matter of fact which occurred before the death of such deceased person
or before such person became of unsound mind.10cräläwvirtualibräry

Two reasons forestall the application of the Dead Mans Statute to this case.

First, petitioners filed a compulsory counterclaim 11 against respondent in their answer before the trial
court, and with the filing of their counterclaim, petitioners themselves effectively removed this case
from the ambit of the Dead Mans Statute. 12 Well entrenched is the rule that when it is the executor or
administrator or representatives of the estate that sets up the counterclaim, the plaintiff, herein
respondent, may testify to occurrences before the death of the deceased to defeat the
counterclaim. 13 Moreover, as defendant in the counterclaim, respondent is not disqualified from
testifying as to matters of fact occurring before the death of the deceased, said action not having been
brought against but by the estate or representatives of the deceased. 14cräläwvirtualibräry

Second, the testimony of Josephine is not covered by the Dead Mans Statute for the simple reason that
she is not a party or assignor of a party to a case or persons in whose behalf a case is prosecuted.
Records show that respondent offered the testimony of Josephine to establish the existence of the
partnership between respondent and Jacinto. Petitioners insistence that Josephine is the alter ego of
respondent does not make her an assignor because the term assignor of a party means assignor of a
cause of action which has arisen, and not the assignor of a right assigned before any cause of action has
arisen. 15 Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.

We are not convinced by petitioners allegation that Josephines testimony lacks probative value because
she was allegedly coerced by respondent, her brother-in-law, to testify in his favor. Josephine merely
declared in court that she was requested by respondent to testify and that if she were not requested to
do so she would not have testified. We fail to see how we can conclude from this candid admission that
Josephines testimony is involuntary when she did not in any way categorically say that she was forced to
be a witness of respondent. Also, the fact that Josephine is the sister of the wife of respondent does not

583
diminish the value of her testimony since relationship per se, without more, does not affect the
credibility of witnesses. 16cräläwvirtualibräry

Petitioners reliance alone on the Dead Mans Statute to defeat respondents claim cannot prevail over
the factual findings of the trial court and the Court of Appeals that a partnership was established
between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary
evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as
sufficient to prove the formation of a partnership, albeit an informal one.

Notably, petitioners did not present any evidence in their favor during trial. By the weight of judicial
precedents, a factual matter like the finding of the existence of a partnership between respondent and
Jacinto cannot be inquired into by this Court on review. 17 This Court can no longer be tasked to go over
the proofs presented by the parties and analyze, assess and weigh them to ascertain if the trial court
and the appellate court were correct in according superior credit to this or that piece of evidence of one
party or the other. 18 It must be also pointed out that petitioners failed to attend the presentation of
evidence of respondent. Petitioners cannot now turn to this Court to question the admissibility and
authenticity of the documentary evidence of respondent when petitioners failed to object to the
admissibility of the evidence at the time that such evidence was offered. 19cräläwvirtualibräry

With regard to petitioners insistence that laches and/or prescription should have extinguished
respondents claim, we agree with the trial court and the Court of Appeals that the action for accounting
filed by respondent three (3) years after Jacintos death was well within the prescribed period. The Civil
Code provides that an action to enforce an oral contract prescribes in six (6) years 20 while the right to
demand an accounting for a partners interest as against the person continuing the business accrues at
the date of dissolution, in the absence of any contrary agreement. 21 Considering that the death of a
partner results in the dissolution of the partnership 22, in this case, it was after Jacintos death that
respondent as the surviving partner had the right to an account of his interest as against petitioners. It
bears stressing that while Jacintos death dissolved the partnership, the dissolution did not immediately
terminate the partnership. The Civil Code 23 expressly provides that upon dissolution, the partnership
continues and its legal personality is retained until the complete winding up of its business, culminating
in its termination. 24cräläwvirtualibräry

In a desperate bid to cast doubt on the validity of the oral partnership between respondent and Jacinto,
petitioners maintain that said partnership that had an initial capital of P200,000.00 should have been
registered with the Securities and Exchange Commission (SEC) since registration is mandated by the Civil
Code. True, Article 1772 of the Civil Code requires that partnerships with a capital of P3,000.00 or more
must register with the SEC, however, this registration requirement is not mandatory. Article 1768 of the
Civil Code 25 explicitly provides that the partnership retains its juridical personality even if it fails to
register. The failure to register the contract of partnership does not invalidate the same as among the
partners, so long as the contract has the essential requisites, because the main purpose of registration is
to give notice to third parties, and it can be assumed that the members themselves knew of the
contents of their contract. 26 In the case at bar, non-compliance with this directory provision of the law
will not invalidate the partnership considering that the totality of the evidence proves that respondent
and Jacinto indeed forged the partnership in question.

WHEREFORE , in view of the foregoing, the petition is DENIED and the appealed decision is AFFIRMED.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Sandoval-Gutierrez, JJ., concur.

G.R. No. 133895. October 2, 2001

ZENAIDA M. SANTOS, Petitioner, vs. CALIXTO SANTOS, ALBERTO SANTOS, ROSA SANTOS-CARREON
and ANTONIO SANTOS, Respondents.

DECISION

584
QUISUMBING, J.:

This petition for review 1 seeks to annul and set aside the decision dated March 10, 1998 of the Court of
Appeals that affirmed the decision of the Regional Trial Court of Manila, Branch 48, dated March 17,
1993. Petitioner also seeks to annul the resolution that denied her motion for reconsideration.

Petitioner Zenaida M. Santos is the widow of Salvador Santos, a brother of private respondents Calixto,
Alberto, Antonio, all surnamed Santos and Rosa Santos-Carreon.

The spouses Jesus and Rosalia Santos owned a parcel of land registered under TCT No. 27571 with an
area of 154 square meters, located at Sta. Cruz Manila. On it was a four-door apartment administered by
Rosalia who rented them out. The spouses had five children, Salvador, Calixto, Alberto, Antonio and
Rosa.

On January 19, 1959, Jesus and Rosalia executed a deed of sale of the properties in favor of their
children Salvador and Rosa. TCT No. 27571 became TCT No. 60819. Rosa in turn sold her share to
Salvador on November 20, 1973 which resulted in the issuance of a new TCT No. 113221. Despite the
transfer of the property to Salvador, Rosalia continued to lease and receive rentals from the apartment
units.

On November 1, 1979, Jesus died. Six years after or on January 9, 1985, Salvador died, followed by
Rosalia who died the following month. Shortly after, petitioner Zenaida, claiming to be Salvadors heir,
demanded the rent from Antonio Hombrebueno, 2 a tenant of Rosalia. When the latter refused to pay,
Zenaida filed an ejectment suit against him with the Metropolitan Trial Court of Manila, Branch 24,
which eventually decided in Zenaidas favor.

On January 5, 1989, private respondents instituted an action for reconveyance of property with
preliminary injunction against petitioner in the Regional Trial Court of Manila, where they alleged that
the two deeds of sale executed on January 19, 1959 and November 20, 1973 were simulated for lack of
consideration. They were executed to accommodate Salvador in generating funds for his business
ventures and providing him with greater business flexibility.

In her Answer, Zenaida denied the material allegations in the complaint and as special and affirmative
defenses, argued that Salvador was the registered owner of the property, which could only be subjected
to encumbrances or liens annotated on the title; that the respondents right to reconveyance was
already barred by prescription and laches; and that the complaint stated no cause of action.

On March 17, 1993, the trial court decided in private respondents favor, thus:

WHEREFORE, viewed from all the foregoing considerations, judgment is hereby made in favor of the
plaintiffs and against the defendants:

a) Declaring Exh. B, the deed of sale executed by Rosalia Santos and Jesus Santos on January 19, 1959, as
entirely null and void for being fictitious or simulated and inexistent and without any legal force and
effect;

b) Declaring Exh. D, the deed of sale executed by Rosa Santos in favor of Salvador Santos on November
20, 1973, also as entirely null and void for being likewise fictitious or simulated and inexistent and
without any legal force and effect;

c) Directing the Register of Deeds of Manila to cancel Transfer Certificate of Title No. T-113221
registered in the name of Salvador Santos, as well as, Transfer Certificate of Title No. 60819 in the
names of Salvador Santos, Rosa Santos, and consequently thereafter, reinstating with the same legal
force and effect as if the same was not cancelled, and which shall in all respects be entitled to like faith
and credit; Transfer Certificate of Title No. T-27571 registered in the name of Rosalia A. Santos, married
to Jesus Santos, the same to be partitioned by the heirs of the said registered owners in accordance with
law; and

585
d) Making the injunction issued in this case permanent.

Without pronouncement as to costs.

SO ORDERED.3cräläwvirtualibräry

The trial court reasoned that notwithstanding the deeds of sale transferring the property to Salvador,
the spouses Rosalia and Jesus continued to possess the property and to exercise rights of ownership not
only by receiving the monthly rentals, but also by paying the realty taxes. Also, Rosalia kept the owners
duplicate copy of the title even after it was already in the name of Salvador. Further, the spouses had no
compelling reason in 1959 to sell the property and Salvador was not financially capable to purchase it.
The deeds of sale were therefore fictitious. Hence, the action to assail the same does not
prescribe. 4cräläwvirtualibräry

Upon appeal, the Court of Appeals affirmed the trial courts decision dated March 10, 1998. It held that
in order for the execution of a public instrument to effect tradition, as provided in Article 1498 of the
Civil Code, 5 the vendor shall have had control over the thing sold, at the moment of sale. It was not
enough to confer upon the purchaser the ownership and the right of possession. The thing sold must be
placed in his control. The subject deeds of sale did not confer upon Salvador the ownership over the
subject property, because even after the sale, the original vendors remained in dominion, control, and
possession thereof. The appellate court further said that if the reason for Salvadors failure to control
and possess the property was due to his acquiescence to his mother, in deference to Filipino custom,
Petitioner, at least, should have shown evidence to prove that her husband declared the property for tax
purposes in his name or paid the land taxes, acts which strongly indicate control and possession. The
appellate court disposed:

WHEREFORE, finding no reversible error in the decision appealed from, the same is hereby AFFIRMED.
No pronouncement as to costs.

SO ORDERED.6cräläwvirtualibräry

Hence, this petition where petitioner avers that the Court of Appeals erred in:

I.

...HOLDING THAT THE OWNERSHIP OVER THE LITIGATED PROPERTY BY THE LATE HUSBAND OF
DEFENDANT-APPELLANT WAS AFFECTED BY HIS FAILURE TO EXERCISE CERTAIN ATTRIBUTES OF
OWNERSHIP.

II

...HOLDING THAT DUE EXECUTION OF A PUBLIC INSTRUMENT IS NOT EQUIVALENT TO DELIVERY OF THE
LAND IN DISPUTE.

III

...NOT FINDING THAT THE CAUSE OF ACTION OF ROSALIA SANTOS HAD PRESCRIBED AND/OR BARRED BY
LACHES.

IV

...IGNORING PETITIONERS ALLEGATION TO THE EFFECT THAT PLAINTIFF DR. ROSA [S.] CARREON IS NOT
DISQUALIFIED TO TESTIFY AS TO THE QUESTIONED DEEDS OF SALE CONSIDERING THAT SALVADOR
SANTOS HAS LONG BEEN DEAD.7cräläwvirtualibräry

In this petition, we are asked to resolve the following:

586
1. Are payments of realty taxes and retention of possession indications of continued ownership by the
original owners?

2. Is a sale through a public instrument tantamount to delivery of the thing sold?

3. Did the cause of action of Rosalia Santos and her heirs prescribe?

4. Can petitioner invoke the Dead Mans Statute? 8cräläwvirtualibräry

On the first issue, petitioner contends that the Court of Appeals erred in holding that despite the deeds
of sale in Salvadors favor, Jesus and Rosalia still owned the property because the spouses continued to
pay the realty taxes and possess the property. She argues that tax declarations are not conclusive
evidence of ownership when not supported by evidence. She avers that Salvador allowed his mother to
possess the property out of respect to her in accordance with Filipino values.

It is true that neither tax receipts nor declarations of ownership for taxation purposes constitute
sufficient proof of ownership. They must be supported by other effective proofs. 9 These requisite
proofs we find present in this case. As admitted by petitioner, despite the sale, Jesus and Rosalia
continued to possess and administer the property and enjoy its fruits by leasing it to third
persons. 10 Both Rosa and Salvador did not exercise any right of ownership over it. 11 Before the second
deed of sale to transfer her 1/2 share over the property was executed by Rosa, Salvador still sought the
permission of his mother. 12 Further, after Salvador registered the property in his name, he surrendered
the title to his mother. 13 These are clear indications that ownership still remained with the original
owners. In Serrano vs. CA, 139 SCRA 179, 189 (1985), we held that the continued collection of rentals
from the tenants by the seller of realty after execution of alleged deed of sale is contrary to the notion
of ownership.

Petitioner argues that Salvador, in allowing her mother to use the property even after the sale, did so
out of respect for her and out of generosity, a factual matter beyond the province of this
Court. 14 Significantly, in Alcos vs. IAC, 162 SCRA 823, 837 (1988), we noted that the buyers immediate
possession and occupation of the property corroborated the truthfulness and authenticity of the deed
of sale. Conversely, the vendors continued possession of the property makes dubious the contract of
sale between the parties.

On the second issue, is a sale through a public instrument tantamount to delivery of the thing sold?
Petitioner in her memorandum invokes Article 1477 15 of the Civil Code which provides that ownership
of the thing sold is transferred to the vendee upon its actual or constructive delivery. Article 1498, in
turn, provides that when the sale is made through a public instrument, its execution is equivalent to the
delivery of the thing subject of the contract. Petitioner avers that applying said provisions to the case,
Salvador became the owner of the subject property by virtue of the two deeds of sale executed in his
favor.

Nowhere in the Civil Code, however, does it provide that execution of a deed of sale is a conclusive
presumption of delivery of possession. The Code merely said that the execution shall be equivalent to
delivery. The presumption can be rebutted by clear and convincing evidence. 16 Presumptive delivery
can be negated by the failure of the vendee to take actual possession of the land
sold. 17cräläwvirtualibräry

In Danguilan vs. IAC, 168 SCRA 22, 32 (1988), we held that for the execution of a public instrument to
effect tradition, the purchaser must be placed in control of the thing sold. When there is no impediment
to prevent the thing sold from converting to tenancy of the purchaser by the sole will of the vendor,
symbolic delivery through the execution of a public instrument is sufficient. But if, notwithstanding the
execution of the instrument, the purchaser cannot have the enjoyment and material tenancy nor make
use of it himself or through another in his name, then delivery has not been effected.

As found by both the trial and appellate courts and amply supported by the evidence on record,
Salvador was never placed in control of the property. The original sellers retained their control and
possession. Therefore, there was no real transfer of ownership.

587
Moreover, in Norkis Distributors, Inc. vs. CA, 193 SCRA 694, 698-699 (1991), citing the land case
of Abuan vs. Garcia, 14 SCRA 759 (1965), we held that the critical factor in the different modes of
effecting delivery, which gives legal effect to the act is the actual intention of the vendor to deliver, and
its acceptance by the vendee. Without that intention, there is no tradition. In the instant case, although
the spouses Jesus and Rosalia executed a deed of sale, they did not deliver the possession and
ownership of the property to Salvador and Rosa. They agreed to execute a deed of sale merely to
accommodate Salvador to enable him to generate funds for his business venture.

On the third issue, petitioner argues that from the date of the sale from Rosa to Salvador on November
20, 1973, up to his death on January 9, 1985, more or less twelve years had lapsed, and from his death
up to the filing of the case for reconveyance in the court a quo on January 5, 1989, four years had lapsed.
In other words, it took respondents about sixteen years to file the case below. Petitioner argues that an
action to annul a contract for lack of consideration prescribes in ten years and even assuming that the
cause of action has not prescribed, respondents are guilty of laches for their inaction for a long period of
time.

Has respondents cause of action prescribed? In Lacsamana vs. CA, 288 SCRA 287, 292 (1998), we held
that the right to file an action for reconveyance on the ground that the certificate of title was obtained
by means of a fictitious deed of sale is virtually an action for the declaration of its nullity, which does not
prescribe. This applies squarely to the present case. The complaint filed by respondents in the court a
quo was for the reconveyance of the subject property to the estate of Rosalia since the deeds of sale
were simulated and fictitious. The complaint amounts to a declaration of nullity of a void contract,
which is imprescriptible. Hence, respondents cause of action has not prescribed.

Neither is their action barred by laches. The elements of laches are: 1) conduct on the part of the
defendant, or of one under whom he claims, giving rise to the situation of which the complaint seeks a
remedy; 2) delay in asserting the complainants rights, the complainant having had knowledge or notice
of the defendants conduct as having been afforded an opportunity to institute a suit; 3) lack of
knowledge or notice on the part of the defendant that the complainant would assert the right in which
he bases his suit; and 4) injury or prejudice to the defendant in the event relief is accorded to the
complainant, or the suit is not held barred. 18These elements must all be proved positively. The conduct
which caused the complaint in the court a quo was petitioners assertion of right of ownership as heir of
Salvador. This started in December 1985 when petitioner demanded payment of the lease rentals from
Antonio Hombrebueno, the tenant of the apartment units. From December 1985 up to the filing of the
complaint for reconveyance on January 5, 1989, only less than four years had lapsed which we do not
think is unreasonable delay sufficient to bar respondents cause of action. We likewise find the fourth
element lacking. Neither petitioner nor her husband made considerable investments on the property
from the time it was allegedly transferred to the latter. They also did not enter into transactions
involving the property since they did not claim ownership of it until December 1985. Petitioner stood to
lose nothing. As we held in the same case of Lacsamana vs. CA, cited above, the concept of laches is not
concerned with the lapse of time but only with the effect of unreasonable lapse. In this case, the alleged
16 years of respondents inaction has no adverse effect on the petitioner to make respondents guilty of
laches.

Lastly, petitioner in her memorandum seeks to expunge the testimony of Rosa Santos-Carreon before
the trial court in view of Sec. 23, Rule 130 of the Revised Rules of Court, otherwise known as the Dead
Mans Statute. 19 It is too late for petitioner, however, to invoke said rule. The trial court in its order
dated February 5, 1990, denied petitioners motion to disqualify respondent Rosa as a witness. Petitioner
did not appeal therefrom. Trial ensued and Rosa testified as a witness for respondents and was cross-
examined by petitioners counsel. By her failure to appeal from the order allowing Rosa to testify, she
waived her right to invoke the dead mans statute. Further, her counsel cross-examined Rosa on matters
that occurred during Salvadors lifetime. In Goi vs. CA, 144 SCRA 222, 231 (1986), we held that protection
under the dead mans statute is effectively waived when a counsel for a petitioner cross-examines a
private respondent on matters occurring during the deceaseds lifetime. The Court of Appeals cannot be
faulted in ignoring petitioner on Rosas disqualification.

588
WHEREFORE , the instant petition is DENIED. The assailed decision dated March 10, 1998 of the Court of
Appeals, which sustained the judgment of the Regional Trial Court dated March 17, 1993, in favor of
herein private respondents, is AFFIRMED. Costs against petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

G.R. No. 105938 September 20, 1996

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A.

VINLUAN, VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners,
vs.
THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH
THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents.

G.R. No. 108113 September 20, 1996

PARAJA G. HAYUDINI, petitioner,

vs.
THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents.

KAPUNAN, J.:

These case touch the very cornerstone of every State's judicial system, upon which the workings of the
contentious and adversarial system in the Philippine legal process are based — the sanctity of fiduciary
duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes
the law profession a unique position of trust and confidence, which distinguishes it from any other
calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection
accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client.

The facts of the case are undisputed.

The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the
Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good
Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of
alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No.
33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al."1

Among the dependants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara,
Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja
G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm
Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law
Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the
organization and acquisition of business associations and/or organizations, with the correlative and
incidental services where its members acted as incorporators, or simply, as stockholders. More
specifically, in the performance of these services, the members of the law firm delivered to its client
documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank
representing the shares registered in the client's name, and a blank deed of trust or assignment covering
said shares. In the course of their dealings with their clients, the members of the law firm acquire
information relative to the assets of clients as well as their personal and business circumstances. As
members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted
in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with
the office practice, ACCRA lawyers acted as nominees-stockholders of the said corporations involved in
sequestration proceedings.2

589
On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to
as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended
Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as
party-defendant.3 Respondent PCGG based its exclusion of private respondent Roco as party-defendant
on his undertaking that he will reveal the identity of the principal/s for whom he acted as
nominee/stockholder in the companies involved in PCGG Case No. 33.4

Petitioners were included in the Third Amended Complaint on the strength of the following allegations:

14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro
Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and
Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted,
devised, schemed conspired and confederated with each other in setting up, through
the use of the coconut levy funds, the financial and corporate framework and structures
that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more
than twenty other coconut levy funded corporations, including the acquisition of San
Miguel Corporation shares and its institutionalization through presidential directives of
the coconut monopoly. Through insidious means and machinations, ACCRA, being the
wholly-owned investment arm, ACCRA Investments Corporation, became the holder of
approximately fifteen million shares representing roughly 3.3% of the total outstanding
capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation
number 44 among the top 100 biggest stockholders of UCPB which has approximately
1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J.
Angara as holding approximately 3,744 shares as of February, 1984.5

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that:

4.4 Defendants-ACCRA lawyers' participation in the acts with which their codefendants
are charged, was in furtherance of legitimate lawyering.

4.4.1 In the course of rendering professional and legal services to clients,

defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala,
Rogelio A. Vinluan and Eduardo U. Escueta, became holders of shares of
stock in the corporations listed under their respective names in Annex
"A" of the expanded Amended Complaint as incorporating or acquiring
stockholders only and, as such, they do not claim any proprietary
interest in the said shares of stock.

4.5 Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of
Mermaid Marketing Corporation, which was organized for legitimate business purposes
not related to the allegations of the expanded Amended Complaint. However, he has
long ago transferred any material interest therein and therefore denies that the
"shares" appearing in his name in Annex "A" of the expanded Amended Complaint are
his assets.6

Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying
the allegations in the complaint implicating him in the alleged ill-gotten wealth.7

Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8,
1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion
as parties-defendants) as accorded private respondent Roco.8 The Counter-Motion for dropping
petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the
requirements of Rule 15 of the Rules of Court.

In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of
petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents
substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments

590
petitioners executed in favor of its client covering their respective
shareholdings.9

Consequently, respondent PCGG presented supposed proof to substantiate compliance by private

respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in
PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May
24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b)
Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter
aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21,
1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the
reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in
PCGG Case No. 33. 10

It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners'
contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor
had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. 11

On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned,
denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions
required by respondent PCGG. It held:

xxx xxx xxx

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for
whom they have acted, i.e. their principal, and that will be their choice. But until they do
identify their clients, considerations of whether or not the privilege claimed by the
ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot
excuse themselves from the consequences of their acts until they have begun to
establish the basis for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG
as defendants herein.

5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that
Roco has apparently identified his principal, which revelation could show the lack of
cause against him. This in turn has allowed the PCGG to exercise its power both under
the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme
Court's ruling in Republic v. Sandiganbayan (173 SCRA 72).

The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of
by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's
COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make
the disclosures required by the PCGG.

The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party
defendants. In the same vein, they cannot compel the PCGG to be accorded the same
treatment accorded to Roco.

Neither can this Court.

WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers
and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as
accorded to Raul S. Roco is DENIED for lack of merit. 12

ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the
respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R.
No. 105938, invoking the following grounds:

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 I

The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners

ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders,
to the strict application of the law of agency.

II

The Honorable Sandiganbayan committed grave abuse of discretion in not considering

petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving
of equal treatment.

1. There is absolutely no evidence that Mr. Roco had revealed, or had

undertaken to reveal, the identities of the client(s) for whom he acted
as nominee-stockholder.

2. Even assuming that Mr. Roco had revealed, or had undertaken to

reveal, the identities of the client(s), the disclosure does not constitute a
substantial distinction as would make the classification reasonable
under the equal protection clause.

3. Respondent Sandiganbayan sanctioned favoritism and undue

preference in favor of Mr. Roco in violation of the equal protection
clause.

III

The Honorable Sandiganbayan committed grave abuse of discretion in not holding that,
under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA
lawyers from revealing the identity of their client(s) and the other information
requested by the PCGG.

1. Under the peculiar facts of this case, the attorney-client privilege

includes the identity of the client(s).

2. The factual disclosures required by the PCGG are not limited to the
identity of petitioners ACCRA lawyers' alleged client(s) but extend to
other privileged matters.

IV

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that
the dropping of party-defendants by the PCGG must be based on reasonable and just
grounds and with due consideration to the constitutional right of petitioners ACCRA
lawyers to the equal protection of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991
resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition
for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on
essentially the same grounds averred by petitioners in G.R. No. 105938.

Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33
grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his
client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm.
Petitioners further argue that even granting that such an undertaking has been assumed by private
respondent Roco, they are prohibited from revealing the identity of their principal under their sworn
mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained
during such lawyer-client relationship.

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Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of
the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the
documents it required (deeds of assignment) protected, because they are evidence of nominee status. 13

In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as
party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss
Civil Case No. 0033 as to Roco 'without an order of court by filing a notice of dismissal'," 14 and he has
undertaken to identify his principal. 15

Petitioners' contentions are impressed with merit.

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to
disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger
fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with
petitioners — the names of their clients in exchange for exclusion from the complaint. The statement of
the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit:

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for
whom they have acted, i.e, their principal, and that will be their choice. But until they do
identify their clients, considerations of whether or not the privilege claimed by the
ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot
excuse themselves from the consequences of their acts until they have begun to establish
the basis for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as
defendants herein. (Emphasis ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled "Primavera
Farms, Inc., et al. vs. Presidential Commission on Good Government" respondent PCGG, through counsel
Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish
through the ACCRA that their "so called client is Mr. Eduardo Cojuangco;" that "it was Mr. Eduardo
Cojuangco who furnished all the monies to those subscription payments in corporations included in
Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds
of assignment, some in the name of particular persons; some in blank.

We quote Atty. Ongkiko:

ATTY. ONGKIKO:

With the permission of this Hon. Court. I propose to establish through these ACCRA
lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr.
Eduardo Cojuangco who furnished all the monies to these subscription payments of
these corporations who are now the petitioners in this case. Third, that these lawyers
executed deeds of trust, some in the name of a particular person, some in blank. Now,
these blank deeds are important to our claim that some of the shares are actually being
held by the nominees for the late President Marcos. Fourth, they also executed deeds of
assignment and some of these assignments have also blank assignees. Again, this is
important to our claim that some of the shares are for Mr. Conjuangco and some are for
Mr. Marcos. Fifth, that most of thes e corporations are really just paper corporations.
Why do we say that? One: There are no really fixed sets of officers, no fixed sets of
directors at the time of incorporation and even up to 1986, which is the crucial year.
And not only that, they have no permits from the municipal authorities in Makati. Next,
actually all their addresses now are care of Villareal Law Office. They really have no
address on records. These are some of the principal things that we would ask of these
nominees stockholders, as they called themselves. 16

593
It would seem that petitioners are merely standing in for their clients as defendants in the complaint.
Petitioners are being prosecuted solely on the basis of activities and services performed in the course of
their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is
merely being used as leverage to compel them to name their clients and consequently to enable the
PCGG to nail these clients. Such being the case, respondent PCGG has no valid cause of action as against
petitioners and should exclude them from the Third Amended Complaint.

II

The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio
operarum (contract of lease of services) where one person lets his services and another hires them
without reference to the object of which the services are to be performed, wherein lawyers' services
may be compensated by honorarium or for hire, 17 and mandato (contract of agency) wherein a friend
on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the
contract to the person who requested him. 18 But the lawyer-client relationship is more than that of the
principal-agent and lessor-lessee.

In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or
servant, because he possesses special powers of trust and confidence reposed on him by his client. 19 A
lawyer is also as independent as the judge of the court, thus his powers are entirely different from and
superior to those of an ordinary agent.20 Moreover, an attorney also occupies what may be considered
as a "quasi-judicial office" since he is in fact an officer of the Court 21 and exercises his judgment in the
choice of courses of action to be taken favorable to his client.

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that
breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and
confidential character, requiring a very high degree of fidelity and good faith, 22 that is required by
reason of necessity and public interest 23 based on the hypothesis that abstinence from seeking legal
advice in a good cause is an evil which is fatal to the administration of justice. 24

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from
any other professional in society. This conception is entrenched and embodies centuries
of established and stable tradition. 25 In Stockton v. Ford,26 the U. S. Supreme Court held:

There are few of the business relations of life involving a higher trust and confidence
than that of attorney and client, or generally speaking, one more honorably and
faithfully discharged; few more anxiously guarded by the law, or governed by the
sterner principles of morality and justice; and it is the duty of the court to administer
them in a corresponding spirit, and to be watchful and industrious, to see that
confidence thus reposed shall not be used to the detriment or prejudice of the rights of
the party bestowing it. 27

In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine
Commission on August 7, 1901. Section 383 of the Code specifically "forbids counsel, without authority
of his client to reveal any communication made by the client to him or his advice given thereon in the
course of professional employment." 28 Passed on into various provisions of the Rules of Court, the
attorney-client privilege, as currently worded provides:

Sec. 24. Disqualification by reason of privileged communication. — The following

persons cannot testify as to matters learned in confidence in the following cases:

xxx xxx xxx

An attorney cannot, without the consent of his client, be examined as to any

communication made by the client to him, or his advice given thereon in the course of,
or with a view to, professional employment, can an attorney's secretary, stenographer,
or clerk be examined, without the consent of the client and his employer, concerning
any fact the knowledge of which has been acquired in such capacity. 29

594
Further, Rule 138 of the Rules of Court states:

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at
every peril to himself, to preserve the secrets of his client, and to accept no
compensation in connection with his client's business except from him or with his
knowledge and approval.

This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides
that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the
trust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:

The lawyers owes "entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability," to the end that nothing be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or public popularity should restrain him
from the full discharge of his duty. In the judicial forum the client is entitled to the
benefit of any and every remedy and defense that is authorized by the law of the land,
and he may expect his lawyer to assert every such remedy or defense. But it is
steadfastly to be borne in mind that the great trust of the lawyer is to be performed
within and not without the bounds of the law. The office of attorney does not permit,
much less does it demand of him for any client, violation of law or any manner of fraud
or chicanery. He must obey his own conscience and not that of his client.

Considerations favoring confidentially in lawyer-client relationships are many and serve several
constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the
most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose
between legal representation without effective communication and disclosure and legal representation
with all his secrets revealed then he might be compelled, in some instances, to either opt to stay away
from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it
amounts to self incrimination, then the flow of information would be curtailed thereby rendering the
right practically nugatory. The threat this represents against another sacrosanct individual right, the
right to be presumed innocent is at once self-evident.

Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum
of legal options which would otherwise be circumscribed by limited information engendered by a fear of
disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence
which exists between lawyer and client which in turn requires a situation which encourages a dynamic
and fruitful exchange and flow of information. It necessarily follows that in order to attain effective
representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty
and professional responsibility.

The question now arises whether or not this duty may be asserted in refusing to disclose the name of
petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case,
the answer must be in the affirmative.

As a matter of public policy, a client's identity should not be shrouded in mystery 30 Under this premise,
the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the
privilege and refuse to divulge the name or identity of this client. 31

The reasons advanced for the general rule are well established.

First, the court has a right to know that the client whose privileged information is sought to be protected
is flesh and blood.

595
Second, the privilege begins to exist only after the attorney-client relationship has been established. The
attorney-client privilege does not attach until there is a client.

Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his
adversary. "A party suing or sued is entitled to know who his opponent is." 32 He cannot be obliged to
grope in the dark against unknown forces. 33

Notwithstanding these considerations, the general rule is however qualified by some important
exceptions.

1) Client identity is privileged where a strong probability exists that revealing the client's name would
implicate that client in the very activity for which he sought the lawyer's advice.

In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order requiring a lawyer to divulge the
name of her client on the ground that the subject matter of the relationship was so closely related to
the issue of the client's identity that the privilege actually attached to both. In Enzor, the unidentified
client, an election official, informed his attorney in confidence that he had been offered a bribe to
violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed
that she had advised her client to count the votes correctly, but averred that she could not remember
whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal
his client's identity before a grand jury. Reversing the lower court's contempt orders, the state supreme
court held that under the circumstances of the case, and under the exceptions described above, even
the name of the client was privileged.

U .S. v. Hodge and Zweig,35 involved the same exception, i.e. that client identity is privileged in those
instances where a strong probability exists that the disclosure of the client's identity would implicate the
client in the very criminal activity for which the lawyer's legal advice was obtained.

The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino
Gang," a gang involved in the illegal importation of drugs in the United States. The respondents, law
partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino.

In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and
Zweig, requiring them to produce documents and information regarding payment received by Sandino
on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth
Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and
circumstances of the case, held:

A client's identity and the nature of that client's fee arrangements may be privileged
where the person invoking the privilege can show that a strong probability exists that
disclosure of such information would implicate that client in the very criminal activity for
which legal advice was sought Baird v. Koerner, 279 F. 2d at 680. While in Baird Owe
enunciated this rule as a matter of California law, the rule also reflects federal law.
Appellants contend that the Baird exception applies to this case.

The Baird exception is entirely consonant with the principal policy behind the attorney-
client privilege. "In order to promote freedom of consultation of legal advisors by clients,
the apprehension of compelled disclosure from the legal advisors must be removed;
hence, the law must prohibit such disclosure except on the client's consent." 8 J.
Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client's identity and
the nature of his fee arrangements are, in exceptional cases, protected as confidential
communications. 36

2) Where disclosure would open the client to civil liability; his identity is privileged. For instance, the
peculiar facts and circumstances of Neugass v. Terminal Cab Corporation,37 prompted the New York

596
Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client
because this would expose the latter to civil litigation.

In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by
respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought
action both against defendant corporation and the owner of the second cab, identified in the
information only as John Doe. It turned out that when the attorney of defendant corporation appeared
on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of
the owner of the second cab when a man, a client of the insurance company, prior to the institution of
legal action, came to him and reported that he was involved in a car accident. It was apparent under the
circumstances that the man was the owner of the second cab. The state supreme court held that the
reports were clearly made to the lawyer in his professional capacity. The court said:

That his employment came about through the fact that the insurance company had
hired him to defend its policyholders seems immaterial. The attorney is such cases is
clearly the attorney for the policyholder when the policyholder goes to him to report an
occurrence contemplating that it would be used in an action or claim against him. 38

xxx xxx xxx

All communications made by a client to his counsel, for the purpose of professional
advice or assistance, are privileged, whether they relate to a suit pending or
contemplated, or to any other matter proper for such advice or aid; . . . And whenever
the communication made, relates to a matter so connected with the employment as
attorney or counsel as to afford presumption that it was the ground of the address by
the client, then it is privileged from disclosure. . .

It appears . . . that the name and address of the owner of the second cab came to the
attorney in this case as a confidential communication. His client is not seeking to use the
courts, and his address cannot be disclosed on that theory, nor is the present action
pending against him as service of the summons on him has not been effected. The
objections on which the court reserved decision are sustained. 39

In the case of Matter of Shawmut Mining Company,40 the lawyer involved was required by a lower court
to disclose whether he represented certain clients in a certain transaction. The purpose of the court's
request was to determine whether the unnamed persons as interested parties were connected with the
purchase of properties involved in the action. The lawyer refused and brought the question to the State
Supreme Court. Upholding the lawyer's refusal to divulge the names of his clients the court held:

If it can compel the witness to state, as directed by the order appealed from, that he
represented certain persons in the purchase or sale of these mines, it has made
progress in establishing by such evidence their version of the litigation. As already
suggested, such testimony by the witness would compel him to disclose not only that he
was attorney for certain people, but that, as the result of communications made to him
in the course of such employment as such attorney, he knew that they were interested
in certain transactions. We feel sure that under such conditions no case has ever gone
to the length of compelling an attorney, at the instance of a hostile litigant, to disclose
not only his retainer, but the nature of the transactions to which it related, when such
information could be made the basis of a suit against his client. 41

3) Where the government's lawyers have no case against an attorney's client unless, by revealing the
client's name, the said name would furnish the only link that would form the chain of testimony
necessary to convict an individual of a crime, the client's name is privileged.

In Baird vs. Korner,42 a lawyer was consulted by the accountants and the lawyer of certain undisclosed
taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case
criminal charges were brought against them by the U.S. Internal Revenue Service (IRS).

597
It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes
understated. The clients themselves were unsure about whether or not they violated tax laws and
sought advice from Baird on the hypothetical possibility that they had. No investigation was then being
undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird
the sum of $12, 706.85, which had been previously assessed as the tax due, and another amount of
money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in
Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS
demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the
ground that he did not know their names, and declined to name the attorney and accountants because
this constituted privileged communication. A petition was filed for the enforcement of the IRS summons.
For Baird's repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit
Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed
him to pay sums of money to the government voluntarily in settlement of undetermined income taxes,
unsued on, and with no government audit or investigation into that client's income tax liability pending.
The court emphasized the exception that a client's name is privileged when so much has been revealed
concerning the legal services rendered that the disclosure of the client's identity exposes him to possible
investigation and sanction by government agencies. The Court held:

The facts of the instant case bring it squarely within that exception to the general rule.
Here money was received by the government, paid by persons who thereby admitted
they had not paid a sufficient amount in income taxes some one or more years in the
past. The names of the clients are useful to the government for but one purpose — to
ascertain which taxpayers think they were delinquent, so that it may check the records
for that one year or several years. The voluntary nature of the payment indicates a
belief by the taxpayers that more taxes or interest or penalties are due than the sum
previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though
whether it is criminal guilt is undisclosed. But it may well be the link that could form the
chain of testimony necessary to convict an individual of a federal crime. Certainly the
payment and the feeling of guilt are the reasons the attorney here involved was
employed — to advise his clients what, under the circumstances, should be done. 43

Apart from these principal exceptions, there exist other situations which could qualify as exceptions to
the general rule.

For example, the content of any client communication to a lawyer lies within the privilege if it is relevant
to the subject matter of the legal problem on which the client seeks legal assistance. 44 Moreover, where
the nature of the attorney-client relationship has been previously disclosed and it is the identity which is
intended to be confidential, the identity of the client has been held to be privileged, since such
revelation would otherwise result in disclosure of the entire transaction. 45

Summarizing these exceptions, information relating to the identity of a client may fall within the ambit
of the privilege when the client's name itself has an independent significance, such that disclosure
would then reveal client confidences. 46

The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal
that the instant case falls under at least two exceptions to the general rule. First, disclosure of the
alleged client's name would lead to establish said client's connection with the very fact in issue of the
case, which is privileged information, because the privilege, as stated earlier, protects the subject matter
or the substance (without which there would be not attorney-client relationship).

The link between the alleged criminal offense and the legal advice or legal service sought was duly
establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions
laid down by the PCGG which constitutes petitioners' ticket to non-prosecution should they accede
thereto:

(a) the disclosure of the identity of its clients;

(b) submission of documents substantiating the lawyer-client relationship; and

598
 (c) the submission of the deeds of assignment petitioners executed in favor of their
clients covering their respective shareholdings.

From these conditions, particularly the third, we can readily deduce that the clients indeed consulted
the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework
and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form
of, among others, the aforementioned deeds of assignment covering their client's shareholdings.

There is no question that the preparation of the aforestated documents was part and parcel of
petitioners' legal service to their clients. More important, it constituted an integral part of their duties as
lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them
in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten
wealth in the aforementioned corporations.

Furthermore, under the third main exception, revelation of the client's name would obviously provide
the necessary link for the prosecution to build its case, where none otherwise exists. It is the link, in the
words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of
a . . . crime." 47

An important distinction must be made between a case where a client takes on the services of an
attorney for illicit purposes, seeking advice about how to go around the law for the purpose of
committing illegal activities and a case where a client thinks he might have previously committed
something illegal and consults his attorney about it. The first case clearly does not fall within the
privilege because the same cannot be invoked for purposes illegal. The second case falls within the
exception because whether or not the act for which the client sought advice turns out to be illegal, his
name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the
prosecution, which might lead to possible action against him.

These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield
for an illegal act, as in the first example; while the prosecution may not have a case against the client in
the second example and cannot use the attorney client relationship to build up a case against the latter.
The reason for the first rule is that it is not within the professional character of a lawyer to give advice
on the commission of a crime. 48 The reason for the second has been stated in the cases above discussed
and are founded on the same policy grounds for which the attorney-client privilege, in general, exists.

In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions
no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to
disclose not only his retainer, but the nature of the transactions to which it related, when such
information could be made the basis of a suit against his client." 49 "Communications made to an
attorney in the course of any personal employment, relating to the subject thereof, and which may be
supposed to be drawn out in consequence of the relation in which the parties stand to each other, are
under the seal of confidence and entitled to protection as privileged communications."50 Where the
communicated information, which clearly falls within the privilege, would suggest possible criminal
activity but there would be not much in the information known to the prosecution which would sustain
a charge except that revealing the name of the client would open up other privileged information which
would substantiate the prosecution's suspicions, then the client's identity is so inextricably linked to the
subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case,
is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting
freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from
attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury
Proceedings51 and Tillotson v. Boughner.52 What these cases unanimously seek to avoid is the
exploitation of the general rule in what may amount to a fishing expedition by the prosecution.

There are, after all, alternative source of information available to the prosecutor which do not depend
on utilizing a defendant's counsel as a convenient and readily available source of information in the
building of a case against the latter. Compelling disclosure of the client's name in circumstances such as
the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors
and litigants which we cannot and will not countenance. When the nature of the transaction would be

599
revealed by disclosure of an attorney's retainer, such retainer is obviously protected by the
privilege. 53 It follows that petitioner attorneys in the instant case owe their client(s) a duty and an
obligation not to disclose the latter's identity which in turn requires them to invoke the privilege.

In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution
has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by
them from their own sources and not from compelled testimony requiring them to reveal the name of
their clients, information which unavoidably reveals much about the nature of the transaction which
may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in
this case the it would be difficult to simply dissociate one from the other. In this sense, the name is as
much "communication" as information revealed directly about the transaction in question itself, a
communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication
without exposing himself to charges of violating a principle which forms the bulwark of the entire
attorney-client relationship.

The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for
negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty,
competence, diligence as well as the responsibility to keep clients informed and protect their rights to
make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon,54 the US
Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its
client by helping the latter's former agent in closing a deal for the agent's benefit only after its client
hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled
that breaches of a fiduciary relationship in any context comprise a special breed of cases that often
loosen normally stringent requirements of causation and damages, and found in favor of the client.

To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley
P.A. v. Scheller55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee
lawyer was fired shortly before the end of completion of his work, and sought payment quantum
meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to
pressure his client into signing a new fee agreement while settlement negotiations were at a critical
stage. While the client found a new lawyer during the interregnum, events forced the client to settle for
less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients
in Meinhard v. Salmon56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but
the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that
the lawyer involved was fired for cause, thus deserved no attorney's fees at all.

The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and
lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the
relationship, but extends even after the termination of the relationship. 57

Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law, which the
lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an exacting goddess,
demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to
accept respondents' position without denigrating the noble profession that is lawyering, so extolled by
Justice Holmes in this wise:

Every calling is great when greatly pursued. But what other gives such scope to realize
the spontaneous energy of one's soul? In what other does one plunge so deep in the
stream of life — so share its passions its battles, its despair, its triumphs, both as witness
and actor? . . . But that is not all. What a subject is this in which we are united — this
abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in
our lives, but the lives of all men that have been. When I think on this majestic theme
my eyes dazzle. If we are to speak of the law as our mistress, we who are here know
that she is a mistress only to be won with sustained and lonely passion — only to be
won by straining all the faculties by which man is likened to God.

600
We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain
of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall
within recognized exceptions to the rule that the client's name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the
circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers
themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on
them in the exercise of their duties.

The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein
petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use
of coconut levy funds the financial and corporate framework and structures that led to the
establishment of UCPB, UNICOM and others and that through insidious means and machinations,
ACCRA, using its wholly-owned investment arm, ACCRA Investment Corporation, became the
holder of approximately fifteen million shares representing roughly 3.3% of the total capital
stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers
that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the
subscription payment; hence, petitioners acted as dummies, nominees and/or agents by
allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth
through government concessions, etc., which acts constitute gross abuse of official position and
authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and
laws of the Republic of the Philippines.

By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to
the PCGG documents substantiating the client-lawyer relationship, as well as deeds of
assignment petitioners executed in favor of its clients covering their respective shareholdings,
the PCGG would exact from petitioners a link "that would inevitably form the chain of testimony
necessary to convict the (client) of a crime."

III

In response to petitioners' last assignment of error, respondents alleged that the private
respondent was dropped as party defendant not only because of his admission that he acted
merely as a nominee but also because of his undertaking to testify to such facts and
circumstances "as the interest of truth may require, which includes . . . the identity of the
principal."59

First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a
statement made in his out-of-court settlement with the PCGG, it is sufficient to state that
petitioners have likewise made the same claim not merely out-of-court but also in the Answer to
plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made
in furtherance of "legitimate lawyering."60 Being "similarly situated" in this regard, public
respondents must show that there exist other conditions and circumstances which would
warrant their treating the private respondent differently from petitioners in the case at bench in
order to evade a violation of the equal protection clause of the Constitution.

To this end, public respondents contend that the primary consideration behind their decision to
sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose
the identities of the clients in question. However, respondents failed to show — and absolute
nothing exists in the records of the case at bar — that private respondent actually revealed the
identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the
entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to
have justified PCGG's special treatment exempting the private respondent from prosecution,
respondent Sandiganbayan should have required proof of the undertaking more substantial
than a "bare assertion" that private respondent did indeed comply with the undertaking.
Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two
of which were mere requests for re-investigation and one simply disclosed certain clients which
petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both

601
petitioners and private respondent rendered legal services while all of them were partners at
ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned
transactions.61

To justify the dropping of the private respondent from the case or the filing of the suit in the
respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was
treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which
made substantial distinctions based on real differences. No such substantial distinctions exist
from the records of the case at bench, in violation of the equal protection clause.

The equal protection clause is a guarantee which provides a wall of protection against uneven
application of status and regulations. In the broader sense, the guarantee operates against
uneven application of legal norms so
that all persons under similar circumstances would be accorded the same treatment. 62 Those
who fall within a particular class ought to be treated alike not only as to privileges granted but
also as to the liabilities imposed.

. . . What is required under this constitutional guarantee is the uniform operation of

legal norms so that all persons under similar circumstances would be accorded the same
treatment both in the privileges conferred and the liabilities imposed. As was noted in a
recent decision: "Favoritism and undue preference cannot be allowed. For the principle
is that equal protection and security shall be given to every person under circumstances,
which if not identical are analogous. If law be looked upon in terms of burden or charges,
those that fall within a class should be treated in the same fashion, whatever
restrictions cast on some in the group equally binding the rest.63

We find that the condition precedent required by the respondent PCGG of the petitioners for
their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client
confidentiality privilege. The condition also constitutes a transgression by respondents
Sandiganbayan and PCGG of the equal protection clause of the Constitution.64 It is grossly unfair
to exempt one similarly situated litigant from prosecution without allowing the same exemption
to the others. Moreover, the PCGG's demand not only touches upon the question of the identity
of their clients but also on documents related to the suspected transactions, not only in
violation of the attorney-client privilege but also of the constitutional right against self-
incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the
expense of such rights.

An argument is advanced that the invocation by petitioners of the privilege of attorney-client

confidentiality at this stage of the proceedings is premature and that they should wait until they
are called to testify and examine as witnesses as to matters learned in confidence before they
can raise their objections. But petitioners are not mere witnesses. They are co-principals in the
case for recovery of alleged ill-gotten wealth. They have made their position clear from the very
beginning that they are not willing to testify and they cannot be compelled to testify in view of
their constitutional right against self-incrimination and of their fundamental legal right to
maintain inviolate the privilege of attorney-client confidentiality.

It is clear then that the case against petitioners should never be allowed to take its full course in
the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation
when it is obvious that their inclusion in the complaint arose from a privileged attorney-client
relationship and as a means of coercing them to disclose the identities of their clients. To allow
the case to continue with respect to them when this Court could nip the problem in the bud at
this early opportunity would be to sanction an unjust situation which we should not here
countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over
petitioners' heads. It should not be allowed to continue a day longer.

While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth, we will
not sanction acts which violate the equal protection guarantee and the right against self-
incrimination and subvert the lawyer-client confidentiality privilege.

602
 WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First
Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET
ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala,
Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin, Eduardo U. Escueta and
Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the
Philippines v. Eduardo Cojuangco, Jr., et al."

SO ORDERED.

Bellosillo, Melo and Francisco, JJ., concur.

[G.R. Nos. 115439-41. July 16, 1997]

PEOPLE OF THE PHILIPPINES, Petitioner, v. HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA,

CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, Respondents.

DECISION

REGALADO, J.:

Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of
respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioners motion for
the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of
March 7, 1994 denying the motion for reconsideration of its preceding
1
disposition. chanroblesvirtuallawlibrary

The records show that during the dates material to this case, respondent Honrada was the Clerk of
Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario
in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then
Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing
attorney who served as counsel for Paredes in several instances pertinent to the criminal charges
involved in the present recourse.

The same records also represent that sometime in 1976, respondent Paredes applied for a free patent
over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved
and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for
that lot which is situated in the poblacion of San Francisco, Agusan del Sur.

However, in 1985, the Director of Lands filed an action2 for the cancellation of respondent Paredes
patent and certificate of title since the land had been designated and reserved as a school site in the
aforementioned subdivision survey. The trial court rendered judgment3 nullifying said patent and title
after finding that respondent Paredes had obtained the same through fraudulent misrepresentations in
his application. Pertinently, respondent Sansaet served as counsel of Paredes in that civil
case.4chanroblesvirtuallawlibrary

Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the
Sangguniang Bayan and the preliminary investigation conducted thereon, an information for
perjury5 was filed against respondent Paredes in the Municipal Circuit Trial Court.6 On November 27,
1985, the Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the
dismissal of the case on the ground inter alia of prescription, hence the proceedings were
terminated.7 In this criminal case, respondent Paredes was likewise represented by respondent Sansaet
as counsel.

Nonetheless, respondent* Paredes was thereafter haled before the Tanodbayan for preliminary
investigation on the charge that, by using his former position as Provincial Attorney to influence and
induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated
Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes
counsel of record therein.

603
On August 29, 1988, the Tanodbayan, issued a resolution8 recommending the criminal prosecution of
respondent Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent, moved for
reconsideration and, because of its legal significance in this case, we quote some of his allegations in
that motion:

x x x respondent had been charged already by the complainants before the Municipal Circuit Court of
San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the
same evidence x x x but said case after arraignment, was ordered dismissed by the court upon
recommendation of the Department of Justice. Copy of the dismissal order, certificate of
arraignment and the recommendation of the Department of Justice are hereto attached for ready
reference; thus the filing of this case will be a case of double jeopardy for respondent herein x x
x.9 (Italics supplied.)

A criminal case was subsequently filed with the Sandiganbayan10 charging respondent Paredes with a
violation of Section 3(a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the
defense was later granted in respondent courts resolution of August 1, 199111 and the case was
dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges
against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three
respondents herein for falsification of public documents.12 He claimed that respondent Honrada, in
conspiracy with his herein co-respondents, simulated and certified as true copies certain documents
purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes
supposedly taken during the arraignment of Paredes on the perjury charge.13 These falsified documents
were annexed to respondent Paredes motion for reconsideration of the Tanodbayan resolution for the
filing of a graft charge against him, in order to support his contention that the same would constitute
double jeopardy.

In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was
ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury
case; and a certification of Presiding Judge Ciriaco Ario that said perjury case in his court did not reach
the arraignment stage since action thereon was suspended pending the review of the case by the
Department of Justice.14chanroblesvirtuallawlibrary

Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and
repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations
and Rectifications,15 respondent Sansaet revealed that Paredes contrived to have the graft case under
preliminary investigation dismissed on the ground of double jeopardy by making it that the perjury case
had been dismissed by the trial court after he had been arraigned therein.

For that purpose, the documents which were later filed by respondent Sansaet in the preliminary
investigation were prepared and falsified by his co-respondents in this case in the house of respondent
Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon
the instigation and inducement of respondent Paredes. This was intended to pave the way for his
discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by
the prosecution pursuant to their agreement.

Withal, in a resolution16 dated February 24, 1992, the Ombudsman approved the filing of falsification
charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet
as a state witness was rejected by the Ombudsman on this evaluative legal position:

x x x Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of
deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel
for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence
which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls
under the mantle of privileged communication between the lawyer and his client which may be
objected to, if presented in the trial.

604
The Ombudsman refused to reconsider that resolution17 and, ostensibly to forestall any further
controversy, he decided to file separate informations for falsification of public documents against each
of the herein respondents. Thus, three criminal cases,18 each of which named one of the three private
respondents here as the accused therein, were filed in the graft court. However, the same were
consolidated for joint trial in the Second Division of the Sandiganbayan.

As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of
respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in
Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned.
The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no
other direct evidence to prove the confabulated falsification of documents by respondents Honrada and
Paredes.

Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-
client privilege adverted to by the Ombudsman and invoked by the two other private respondents in
their opposition to the prosecutions motion, resolved to deny the desired discharge on this
ratiocination:

From the evidence adduced, the opposition was able to establish that client and lawyer relationship
existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in
the information. In view of such relationship, the facts surrounding the case, and other confidential
matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his
professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense
charged in the information is privileged.19chanroblesvirtuallawlibrary

Reconsideration of said resolution having been likewise denied,20 the controversy was elevated to this
Court by the prosecution in an original action for the issuance of the extraordinary writ
of certiorari against respondent Sandiganbayan.

The principal issues on which the resolution of the petition at bar actually turns are therefore (1)
whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by
the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for
discharge to testify as a particeps criminis.

As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which
existed between herein respondents Paredes and Sansaet during the relevant periods, the facts
surrounding the case and other confidential matters must have been disclosed by respondent Paredes,
as client, to respondent Sansaet, as his lawyer. Accordingly, it found no reason to discuss it further since
Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the
latters consent.21chanroblesvirtuallawlibrary

The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the
facts thereof and the actuations of both respondents therein constitute an exception to the rule. For a
clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs
in these cases.

1. It may correctly be assumed that there was a confidential communication made by Paredes to
Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and
this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed,
the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and
Honrada was as eloquent a communication, if not more, than verbal statements being made to him by
Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this
point has always referred to any communication, without distinction or
qualification.22chanroblesvirtuallawlibrary

605
In the American jurisdiction from which our present evidential rule was taken, there is no particular
mode by which a confidential communication shall be made by a client to his attorney. The privilege is
not confined to verbal or written communications made by the client to his attorney but extends as well
to information communicated by the client to the attorney by other means.23chanroblesvirtuallawlibrary

Nor can it be pretended that during the entire process, considering their past and existing relations as
counsel and client and, further, in view of the purpose for which such falsified documents were
prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act.
The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by
Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary
investigation of the graft case before the Tanodbayan.24 Also, the acts and words of the parties during
the period when the documents were being falsified were necessarily confidential since Paredes would
not have invited Sansaet to his house and allowed him to witness the same except under conditions of
secrecy and confidence.

2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act
for which the latter stands charged, a distinction must be made between confidential communications
relating to past crimes already committed, and future crimes intended to be committed, by the client.
Corollarily, it is admitted that the announced intention of a client to commit a crime is not included
within the confidences which his attorney is bound to respect. Respondent court appears, however, to
believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to
testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed
and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true
that by now, insofar as the falsifications to be testified to in respondent court are concerned, those
crimes were necessarily committed in the past. But for the application of the attorney-client privilege,
however, the period to be considered is the date when the privileged communication was made by the
client to the attorney in relation to either a crime committed in the past or with respect to a crime
intended to be committed in the future. In other words, if the client seeks his lawyers advice with respect
to a crime that the former has theretofore committed, he is given the protection of a virtual
confessional seal which the attorney-client privilege declares cannot be broken by the attorney without
the clients consent. The same privileged confidentiality, however, does not attach with regard to a crime
which a client intends to commit thereafter or in the future and for purposes of which he seeks the
lawyers advice.

Statements and communications regarding the commission of a crime already committed, made by a
party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily,
the unbroken stream of judicial dicta is to the effect that communications between attorney and client
having to do with the clients contemplated criminal acts, or in aid or furtherance thereof, are not
covered by the cloak of privileges ordinarily existing in reference to communications between attorney
and client.25 (Emphases supplied.)

3. In the present cases, the testimony sought to be elicited from Sansaet as state witness are the
communications made to him by physical acts and/or accompanying words of Paredes at the time he
and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the
process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and
culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the
confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to
the crime of falsification which had not yet been committed in the past by Paredes but which he, in
confederacy with his present co-respondents, later committed. Having been made for purposes of
a future offense, those communications are outside the pale of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which
he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that
a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or
in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from
attaching.26 In fact, it has also been pointed out to the Court that the prosecution of the honorable

606
relation of attorney and client will not be permitted under the guise of privilege, and every
communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a
conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may
be bound to disclose at once in the interest of justice.27chanroblesvirtuallawlibrary

It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful
communications intended for an illegal purpose contrived by conspirators are nonetheless covered by
the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime
which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring
client, would be one of the worst travesties in the rules of evidence and practice in the noble profession
of law.

II

On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent
Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify
for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the
preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are
now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some
ancillary questions requiring preludial clarification.

1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not
respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that
issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to
this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends
of justice and the expeditious administration thereof to resolve the case on the merits, instead of
remanding it to the trial court.28chanroblesvirtuallawlibrary

2. A reservation is raised over the fact that the three private respondents here stand charged in three
separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman
recommended the filing of criminal charges for falsification of public documents against all the
respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy,
one information was filed against each of the three respondents here, resulting in three informations for
the same acts of falsification.

This technicality was, however, sufficiently explained away during the deliberations in this case by the
following discussion thereof by Mr. Justice Davide, to wit:

Assuming no substantive impediment exists to block Sansaets discharge as state witness, he can,
nevertheless, be discharged even if indicted under a separate information. I suppose the three cases
were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan.
Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of
cases arising from the same incident or series of incidents, or involving common questions of law and
fact. Accordingly, for all legal intents and purposes, Sansaet stood as co-accused and he could be
discharged as state witness. It is of no moment that he was charged separately from his co-accused.
While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly, which was
absent in the old provision, the consolidated and joint trial has the effect of making the three accused
co-accused or joint defendants, especially considering that they are charged for the same offense. In
criminal law, persons indicted for the same offense and tried together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a
consolidation of the three cases, the several actions lost their separate identities and became a single
action in which a single judgment is rendered, the same as if the different causes of action involved had
originally been joined in a single action.29chanroblesvirtuallawlibrary

Indeed, the former provision of the Rules referring to the situation (w)hen two or more persons are
charged with the commission of a certain offense was too broad and indefinite; hence the word joint
was added to indicate the identity of the charge and the fact that the accused are all together charged

607
therewith substantially in the same manner in point of commission and time. The word joint means
common to two or more, as involving the united activity of two or more, or done or produced by two or
more working together, or shared by or affecting two or more.30 Had it been intended that all the
accused should always be indicted in one and the same information, the Rules could have said so with
facility, but it did not so require in consideration of the circumstances obtaining in the present case and
the problems that may arise from amending the information. After all, the purpose of the Rule can be
achieved by consolidation of the cases as an alternative mode.

2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that
since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of
the conspiracy. Now, one of the requirements for a state witness is that he does not appear to be the
most guilty.31 not that he must be the least guilty32 as is so often erroneously framed or submitted. The
query would then be whether an accused who was held guilty by reason of membership in a conspiracy
is eligible to be a state witness.

To be sure, in People vs. Ramirez, et al.33 we find this obiter:

It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded the others
to rob Paterno, not to kill him for a promised fee. Although he did not actually commit any of the
stabbings, it was a mistake to discharge Bagispas as a state witness. All the perpetrators of the offense,
including him, were bound in a conspiracy that made them equally guilty.

However, prior thereto, in People vs. Roxas, et al.,34 two conspirators charged with five others in three
separate informations for multiple murder were discharged and used as state witnesses against their
confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al.,35 one of the co-
conspirators was discharged from the information charging him and two others with the crime of estafa.
The trial court found that he was not the most guilty as, being a poor and ignorant man, he was easily
convinced by his two co-accused to open the account with the bank and which led to the commission of
the crime.

On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as
his co-accused, and should not be discharged as he did not appear to be not the most guilty, is
untenable. In other words, the Court took into account the gravity or nature of the acts committed by
the accused to be discharged compared to those of his co-accused, and not merely the fact that in law
the same or equal penalty is imposable on all of them.

Eventually, what was just somehow assumed but not explicitly articulated found expression in People vs.
Ocimar, et al.,36 which we quote in extenso:

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a
co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be
discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing
not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he
is equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the
presentation of four (4) other witnesses, none of them could positively identify the accused except
Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of
cash, jewelry and other valuables, but even the life of Capt. Caeba, Jr. It was in fact the testimony of
Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct
evidence was available for the prosecution to prove the elements of the crime. Third, his testimony
could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court
in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals,
he was only invited to a drinking party without having any prior knowledge of the plot to stage a
highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to
be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused
who are less guilty will be sent to jail. And by most guilty we mean the highest degree of culpability in
terms of participation in the commission of the offense and not necessarily the severity of the penalty

608
imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be
considered least guilty if We take into account his degree of participation in the perpetration of the
offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral
turpitude.

xxx

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an
accused to be utilized as state witness clearly looks at his actual and individual participation in the
commission of the crime, which may or may not have been perpetrated in conspiracy with the other
accused. Since Bermudez was not individually responsible for the killing committed on the occasion of
the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the
most guilty. Hence, his discharge to be a witness for the government is clearly warranted. (Italics ours.)

The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is
based on the concurrence of criminal intent in their minds and translated into concerted physical action
although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical
school of thought, it is the identity of the mens rea which is considered the predominant consideration
and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of
one is thereby the act of all.

Also, this is an affair of substantive law which should not be equated with the procedural rule on the
discharge of particeps criminis. This adjective device is based on other considerations, such as the need
for giving immunity to one of them in order that not all shall escape, and the judicial experience that the
candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For
those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial
experience distilled into a judgmental policy.

III

The Court is reasonably convinced, and so holds, that the other requisites for the discharge of
respondent Sansaet as a state witness are present and should have been favorably appreciated by the
Sandiganbayan.

Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification
charged in the criminal cases pending before respondent court, and the prosecution is faced with the
formidable task of establishing the guilt of the two other co-respondents who steadfastly deny the
charge and stoutly protest their innocence. There is thus no other direct evidence available for the
prosecution of the case, hence there is absolute necessity for the testimony of Sansaet whose discharge
is sought precisely for that purpose. Said respondent has indicated his conformity thereto and has, for
the purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of
Explanations and Rectifications.

His testimony can be substantially corroborated on its material points by reputable witnesses, identified
in the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ario,
Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized
Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the
criminal cases through his letter-complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando,
Agusan del Sur, who participated in the resolution asking their Provincial Governor to file the
appropriate case against respondent Paredes, and Francisco Macalit, who obtained the certification of
non-arraignment from Judge Ario.

On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been
convicted of any offense involving moral turpitude. Thus, with the confluence of all the requirements for
the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and
propose that he be allowed to testify as a state witness.

609
This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may
propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the
proposal and make the corresponding disposition. It must be emphasized, however, that such discretion
should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein
discussed, and not merely on the sole issue of the applicability of the attorney-client privilege.

This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement
of two members of its Second Division 37and the reconstitution thereof. In an inversely anticlimactic
Manifestation and Comment 38 dated June 14, 1995, as required by this Court in its resolution on
December 5, 1994, the chairman and new members thereof 39 declared:

4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the Petition
for Certiorari filed by the prosecution are based, was penned by Associate Justice Narciso T. Atienza and
concurred in by the undersigned and Associate Justice Augusto M. Amores;

5) That while the legal issues involved had been already discussed and passed upon by the Second
Division in the aforesaid Resolution, however, after going over the arguments submitted by the Solicitor-
General and re-assessing Our position on the matter, We respectfully beg leave of the Honorable
Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to
grant the prosecutions motion to discharge accused Generoso Sansaet as state witness, upon authority
of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen
(15) days from notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impugned
resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and
given due course by respondent Sandiganbayan.

SO ORDERED.

Narvasa, C.J., Padilla, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Francisco
and Panganiban, JJ., concur.

Hermosisima, Jr. and Torres, Jr., JJ., on leave.

G.R. No. 117740. October 30, 1998

CAROLINA ABAD GONZALES, Petitioner, v. COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H.

ABAD, MARIAN H. ABAD and ROSEMARIE S. ABAD, Respondents.

DECISION

ROMERO, J.:

Before us is a petition for certiorari to annul the decision of the Court of Appeals dated October 19, 1994,
finding private respondents as the heirs of Ricardo de Mesa Abad as well as annulling petitioners extra-
judicial partition of the decedents estate.

The facts are as follows:

On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de Mesa Abad and Cesar de Mesa
Tioseco sought the settlement of the intestate estate of their brother, Ricardo de Mesa Abad, before the
then Court of First Instance of Manila. In their petition, docketed as Special Proceedings No. 86792,
petitioners claimed that they were the only heirs of Ricardo de Mesa Abad, as the latter allegedly died a
bachelor, leaving no descendants or ascendants, whether legitimate or illegitimate. On May 9, 1972,
petitioners amended their petition by alleging that the real properties covered by TCT Nos. 13530,
53671, and 64021, listed therein as belonging to the decedent, were actually only administered by the
latter, the true owner being their late mother, Lucila de Mesa. On June 16, 1972, the trial court
appointed Cesar de Mesa Tioseco as administrator of the intestate estate of Ricardo de Mesa Abad.

610
Meanwhile, on May 2, 1972, petitioners executed an extrajudicial settlement of the estate of their late
mother Lucila de Mesa, copying therein the technical descriptions of the lots covered by TCT Nos. 13530,
53671, and 64021. By virtue thereof, the Register of Deeds cancelled the above-mentioned TCTs in the
name of Ricardo Abad and issued, in lieu thereof, TCT No. 108482 in the name of Dolores de Mesa Abad,
TCT No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina Abad
Gonzales. The three promptly executed real estate mortgages over the real properties in favor of Mrs.
Josefina Viola, the wife of their counsel, Escolastico Viola.

On July 7, 1972, private respondents Honoria Empaynado, Cecilia Abad Empaynado, and Marian Abad
Empaynado filed a motion to set aside proceedings and for leave to file opposition in Special
Proceedings No. 86792. In their motion, they alleged that Honoria Empaynado had been the common-
law wife of Ricardo Abad for twenty-seven years before his death, or from 1943 to 1971, and that during
these period, their union had produced two children, Cecilia Abad Empaynado and Marian Abad
Empaynado. Private respondents also disclosed the existence of Rosemarie Abad, a child allegedly
fathered by Ricardo Abad with another woman, Dolores Saracho. As the law awards the entire estate to
the surviving children to the exclusion of collateral relatives, private respondents charged petitioners
with deliberately concealing the existence of said three children in order to deprive the latter of their
rights to the estate of Ricardo Abad.

On July 24, 1972, private respondents filed a motion to withdraw their first motion and, in lieu thereof,
filed a motion for reconsideration praying that Cecilia Abad be appointed administrator instead of Cesar
Tioseco. The trial court denied private respondents motion to remove Cesar Tioseco as administrator,
but allowed them to appear in the proceedings to establish their right as alleged heirs of Ricardo Abad.

Private respondents later discovered that petitioners had managed to cancel TCT Nos. 13530, 53671,
and 64021 through the stratagem of extra-judicially partitioning their mothers estate. Accordingly, on
October 4, 1973, private respondents filed a motion to annul the extra-judicial partition executed by
petitioners, as well as TCT Nos. 108482, 108483, and 108484, the Torrens titles issued in substitution of
TCT Nos. 13530, 53671, and 64021 and the real estate mortgages constituted by the latter on said
properties.

After due trial, the lower court, on November 2, 1973, rendered the following judgment:

WHEREFORE, judgment is hereby rendered as follows:

(1) Declaring Cecilia E. Abad, Marian E. Abad and Rosemarie S. Abad acknowledged natural children of
the deceased Ricardo M. Abad;

(2) Declaring said acknowledged natural children, namely: Cecilia E. Abad, Marian E. Abad, and
Rosemarie S. Abad the only surviving legal heirs of the deceased Ricardo M. Abad and as such entitled to
succeed to the entire estate of said deceased, subject to the rights of Honoria Empaynado, if any, as co-
owner of any of the property of said estate that may have been acquired thru her joint efforts with the
deceased during the period they lived together as husband and wife;

(3) Denying the petition of decedents collateral relatives, namely: Dolores M. Abad, Cesar M. Tioseco
and Carolina M. Abad to be declared as heirs and excluding them from participating in the
administration and settlement of the estate of Ricardo Abad;

(4) Appointing Honoria Empaynado as the administratrix in this intestacy with a bond of THIRTY
THOUSAND (P30,000.00) PESOS; and

(5) Ordering Cesar Tioseco to surrender to the new administratrix all property or properties, monies and
such papers that came into his possession by virtue of his appointment as administrator, which
appointment is hereby revoked.1cräläwvirtualibräry

The trial court, likewise, found in favor of private respondents with respect to the latters motion for
annulment of certain documents. On November 19, 1974, it rendered the following judgment:

611
WHEREFORE, this Court finds oppositors Motion for Annulment, dated October 4, 1973 to be
meritorious and accordingly

1. Declares that the six (6) parcels of land described in TCT Nos. 13530, 53671 and 64021, all registered
in the name of Ricardo Abad, as replaced by TCT No. 108482 in the name of Dolores de Mesa Abad, TCT
No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina de Mesa
Abad-Gonzales, and the residential house situated at 2432 Opalo Street, San Andres Subdivision, Manila,
to be the properties of the late Ricardo Abad;

2. Declares the deed of Extra Judicial Settlement of the Estate of the Deceased Lucila de Mesa, executed
on May 2, 1972 (Doc. No. 445, Page No. 86, Book No. VII, Series of 1972 of the notarial book of Faustino
S. Cruz) by petitioners and Carolina de Mesa Abad-Gonzales, to be inexistent and void from the
beginning;

3. Declares as null and void the cancellation of TCT Nos. 13530, 53671 and 64021 and issuance in lieu
thereof, of TCT Nos. 108482, 108483 and 108484;

4. Orders the Register of Deeds of Manila to cancel TCT No. 108482 of Dolores de Mesa Abad; TCT No.
108483 of Cesar de Mesa Tioseco; and TCT No. 108484 of Carolina de Mesa Abad-Gonzales and in lieu
thereof, restore and/or issue the corresponding certificate of title in the name of Ricardo Abad;

5. Declares as inexistent and void from the beginning the three (3) real estate mortgages executed on
July 7, 1972 executed by (a) petitioner Dolores de Mesa Abad, identified as Doc. No. 145, Page No. 30,
Book No. XX, Series of 1972; (b) petitioner Cesar de Mesa Tioseco, identified as Doc. No. 146, Page 31,
Book No. XX, Series of 1972; and (c) Carolina de Mesa Abad-Gonzales, identified as Doc. No. 144, Page
No. 30, Book No. XX, Series of 1972, all of the notarial book of Ricardo P. Yap of Manila, in favor of Mrs.
Josefina C. Viola, and orders the Register of Deeds of Manila to cancel the registration or annotation
thereof from the back of the torrens title of Ricardo Abad; and

6. Orders Atty. Escolastico R. Viola and his law associate and wife, Josefina C. Viola, to surrender to the
new administratrix, Honoria Empaynado, TCT Nos. 108482, 108483, and 108484 within five (5) days
from receipt hereof.

SO ORDERED.2cräläwvirtualibräry

Petitioners motion for reconsideration of the November 2, 1973 decision was denied by the trial court.
Their notice of appeal was likewise denied on the ground that the same had been filed out of time.
Because of this ruling, petitioners instituted certiorari and mandamus proceedings with the Court of
Appeals, docketed there as C.A.-G.R. No. SP-03268-R. On November 2, 1974, the appellate court granted
petitioners petition and ordered the lower court to give due course to the latters appeal. The trial court,
however, again dismissed petitioners appeal on the ground that their record on appeal was filed out of
time.

Likewise, on January 4, 1975, petitioners filed their notice of appeal of the November 19, 1974 ruling of
the trial court. On March 21, 1975, this appeal was similarly denied on the ground that it had been filed
out of time.

Due to the dismissal of their two appeals, petitioners again instituted certiorari and mandamus
proceedings with the Court of Appeals, docketed therein as C.A.-G.R. No. SP-04352. The appellate court
affirmed the dismissal of the two appeals, prompting petitioners to appeal to the Supreme Court. On
July 9, 1985, this Court directed the trial court to give due course to petitioners appeal from the order of
November 2, 1973 declaring private respondents heirs of the deceased Ricardo Abad, and the order
dated November 19, 1974, annulling certain documents pertaining to the intestate estate of deceased.

The two appeals were accordingly elevated by the trial court to the appellate court. On October 19,
1994, the Court of Appeals rendered judgment as follows:

612
WHEREFORE, all the foregoing considered, the instant appeal is DENIED for lack of merit. The orders of
the court a quo in SP No. 86792, to wit:

1. Order dated November 2, 1973, declaring in substance that Cecilia, Marian and Rosemarie, all
surnamed Abad as the acknowledged natural children and the only surviving heirs of the deceased
Ricardo Abad;

2. Order dated November 19, 1974, declaring in substance that the six (6) parcels of land described in
TCT Nos. 13530, 53671 and 64021 are the properties of Ricardo Abad; that the extra-judicial partition of
the estate of the deceased Lucila de Mesa executed on May 2, 1972 is inexistent and void from the
beginning; the cancellation of the aforementioned TCTs is null and void; the Register of Deeds be
ordered to restore and/or issue the corresponding Certificates of Title in the name of Ricardo Abad; and

3. Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco
from the latter Order, for being filed out of time, are all AFFIRMED in toto. With costs against petitioner-
appellants.

SO ORDERED.3cräläwvirtualibräry

Petitioners now seek to annul the foregoing judgment on the following grounds:

I. THE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT RESPONDENTS
CECILIA E. ABAD, MARIAN E. ABAD AND ROSEMARIE S. ABAD ARE THE ACKNOWLEDGED NATURAL
CHILDREN OF THE DECEASED RICARDO DE MESA ABAD.

II. PETITIONERS ARE ENTITLED TO THE SUBJECT ESTATE WHETHER THE SAME IS OWNED BY THE
DECEASED RICARDO DE MESA ABAD OR BY LUCILA DE MESA, THE MOTHER OF PETITIONERS AND
RICARDO DE MESA ABAD.

We are not persuaded.

Petitioners, in contesting Cecilia, Marian and Rosemarie Abads filiation, submits the startling theory that
the husband of Honoria Empaynado, Jose Libunao, was still alive when Cecilia and Marian Abad were
born in 1948 and 1954, respectively.

It is undisputed that prior to her relationship with Ricardo Abad, Honoria Empaynado was married to
Jose Libunao, their union having produced three children, Angelita, Cesar, and Maria Nina, prior to the
birth of Cecilia and Marian. But while private respondents claim that Jose Libunao died in 1943,
petitioners claim that the latter died sometime in 1971.

The date of Jose Libunaos death is important, for if he was still alive in 1971, and given that he was
legally married to Honoria Empaynado, the presumption would be that Cecilia and Marian are not
Ricardo Abads children with the latter, but of Jose Libunao and Honoria Empaynado. Article 256, the
applicable provision of the Civil Code, provides:

Art. 256. The child shall be presumed legitimate, although the mother may have declared against its
legitimacy or may have been sentenced as an adulteress.4cräläwvirtualibräry

To bolster their theory, petitioners presented in evidence the application for enrolment at Mapua
Institute of Technology of Angelita Libunao, accomplished in 1956, which states:

Fathers Name: Jose Libunao

Occupation: engineer (mining)

Mothers Name: Honoria Empaynado5cräläwvirtualibräry

613
as well as Cesar Libunaos 1958 application for enrolment at the Mapua Institute of Technology, which
states:

Fathers Name: Jose Libunao

Occupation: none

Mothers Name: Honoria Empaynado6cräläwvirtualibräry

Petitioners claim that had Jose Libunao been dead during the time when said applications were
accomplished, the enrolment forms of his children would have stated so. These not being the case, they
conclude that Jose Libunao must have still been alive in 1956 and 1958.

Additionally, petitioners presented the joint affidavit of Juan Quiambao and Alejandro Ramos7 stating
that to their knowledge Jose Libunao had died in 1971, leaving as his widow, Honoria Empaynado, and
that the former had been interred at the Loyola Memorial Park.

Lastly, petitioners presented the affidavit of Dr. Pedro Arenas,8 Ricardo Abads physician, declaring that
in 1935, he had examined Ricardo Abad and found him to be infected with gonorrhea, and that the
latter had become sterile as a consequence thereof.

With these pieces of evidence, petitioners claim that Cecilia and Marian Abad are not the illegitimate
children of Ricardo Abad, but rather the legitimate children of the spouses Jose Libunao and Honoria
Empaynado.

At the outset, it must be noted that petitioners are disputing the veracity of the trial courts finding of
facts. It is a fundamental and settled rule that factual findings of the trial court, adopted and confirmed
by the Court of Appeals, are final and conclusive and may not be reviewed on appeal.9 Petitioners,
however, argue that factual findings of the Court of Appeals are not binding on this Court when there
appears in the record of the case some fact or circumstance of weight and influence which has been
overlooked, or the significance of which has been misinterpreted, that if considered, would affect the
result of the case.10cräläwvirtualibräry

This Court finds no justifiable reason to apply this exception to the case at bar.

First, the evidence presented by petitioners to prove that Jose Libunao died in 1971 are, to say the least,
far from conclusive. Failure to indicate on an enrolment form that ones parent is deceased is not
necessarily proof that said parent was still living during the time said form was being accomplished.
Furthermore, the joint affidavit of Juan Quiambao and Alejandro Ramos as to the supposed death of
Jose Libunao in 1971 is not competent evidence to prove the latters death at that time, being merely
secondary evidence thereof. Jose Libunaos death certificate would have been the best evidence as to
when the latter died. Petitioners have, however, inexplicably failed to present the same, although there
is no showing that said death certificate has been lost or destroyed as to be unavailable as proof of Jose
Libunaos death. More telling, while the records of Loyola Memorial Park show that a certain
Jose Bautista Libunao was indeed buried there in 1971, this person appears to be different from Honoria
Empaynados first husband, the latters name being Jose Santos Libunao. Even the name of the wife is
different. Jose Bautista Libunaos wife is listed as Josefa Reyes while the wife of Jose Santos Libunao was
Honoria Empaynado.

As to Dr. Arenas affidavit, the same was objected to by private respondents as being privileged
communication under Section 24 (c), Rule 130 of the Rules of Court.11 The rule on confidential
communications between physician and patient requires that: a) the action in which the advice or
treatment given or any information is to be used is a civil case; b) the relation of physician and patient
existed between the person claiming the privilege or his legal representative and the physician; c) the
advice or treatment given by him or any information was acquired by the physician while professionally
attending the patient; d) the information was necessary for the performance of his professional duty;
and e) the disclosure of the information would tend to blacken the reputation of the
patient.12cräläwvirtualibräry

614
Petitioners do not dispute that the affidavit meets the first four requisites. They assert, however, that
the finding as to Ricardo Abads sterility does not blacken the character of the deceased. Petitioners
conveniently forget that Ricardo Abads sterility arose when the latter contracted gonorrhea, a fact
which most assuredly blackens his reputation. In fact, given that society holds virility at a premium,
sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease,
would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in
evidence. And the same remains inadmissible in evidence, notwithstanding the death of Ricardo Abad.
As stated by the trial court:

In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was pointed out that: The
privilege of secrecy is not abolished or terminated because of death as stated in established precedents.
It is an established rule that the purpose of the law would be thwarted and the policy intended to be
promoted thereby would be defeated, if death removed the seal of secrecy, from the communications
and disclosures which a patient should make to his physician. After one has gone to his grave, the living
are not permitted to impair his name and disgrace his memory by dragging to light communications and
disclosures made under the seal of the statute.

Given the above disquisition, it is clearly apparent that petitioners have failed to establish their claim by
the quantum of evidence required by law. On the other hand, the evidence presented by private
respondents overwhelmingly prove that they are the acknowledged natural children of Ricardo Abad.
We quote with approval the trial courts decision, thus:

In his individual statements of income and assets for the calendar years 1958 and 1970, and in all his
individual income tax returns for the years 1964, 1965, 1967, 1968, 1969 and 1970, he has declared
therein as his legitimate wife, Honoria Empaynado; and as his legitimate dependent children, Cecilia,
Marian (except in Exh. 12) and Rosemarie Abad (Exhs. 12 to 19; TSN, February 26, 1973, pp. 33-44).

xxx

In December 1959, Ricardo Abad insured his daughters Cecilia, then eleven (11) years old, and Marian,
then (5) years old, on [a] twenty (20) year-endowment plan with the Insular Life Assurance Co., Ltd. and
paid for their premiums (Exh. 34 and 34-A; 34-B to C; 35, 35-A to D; TSN, February 27, 1973, pp. 7-20).

In 1966, he and his daughter Cecilia Abad opened a trust fund acount of P100,000.00 with the Peoples
Bank and Trust Company which was renewed until (sic) 1971, payable to either of them in the event of
death (Exhs. 36-A; 36-E). On January 5, 1971, Ricardo Abad opened a trust fund of P100,000.00 with the
same bank, payable to his daughter Marian (Exh. 37-A). On January 4, 1971, Ricardo Abad and his sister
Dolores Abad had (sic) agreed to stipulate in their PBTC Trust Agreement that the 9% income of
their P100,000.00 trust fund shall (sic) be paid monthly to the account reserved for Cecilia, under PBTC
Savings Account No. 49053 in the name of Ricardo Abad and/or Cecilia Abad (Exh. 38) where the income
of the trust fund intended for Cecilia was also deposited monthly (TSN, February 27, 1973, pp. 21-36).
Ricardo Abad had also deposited (money) with the Monte de Piedad and Savings Bank in the name of his
daughter Marian, represented by him, as father, under Savings Account 17348 which has (sic) a balance
of P34,812.28 as of June 30, 1972. (Exh. 60-B)

With the finding that private respondents are the illegitimate children of Ricardo Abad, petitioners are
precluded from inheriting the estate of their brother. The applicable provisions are:

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate children shall succeed
to the entire estate of the deceased.

Art. 1003. If there are noillegitimate children, or a surviving spouse, the collateral relatives shall succeed
to the entire estate of the deceased in accordance with the following articles. (Italics supplied)

As to petitioners claim that the properties in the name of Ricardo Abad actually belong to their mother
Lucila de Mesa, both the trial court and the appellate court ruled that the evidence presented by private
respondents proved that said properties in truth belong to Ricardo Abad. As stated earlier, the findings
of fact by the trial court are entitled to great weight and should not be disturbed on appeal, it being in a

615
better position to examine the real evidence, as well as to observe the demeanor of the witnesses while
testifying in the case.13 In fact, petitioners seem to accept this conclusion, their contention being that
they are entitled to the subject estate whether the same is owned by Ricardo Abad or by Lucila de Mesa.

Digressing from the main issue, in its decision dated October 19, 1994, the Court of Appeals affirmed the
trial courts order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa
Tioseco on the ground that the same was filed out of time. This affirmance is erroneous, for on July 9,
1985, this Court had already ruled that the same was not filed out of time. Well-settled is the dictum
that the rulings of the Supreme Court are binding upon and may not be reversed by a lower court.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The decision of the Court of
Appeals in CA-G.R. CV No. 30184 dated October 19, 1994 is AFFIRMED with theMODIFICATION that the
affirmance of the Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar
de Mesa Tioseco for being filed out of time is SETASIDE. Costs against petitioners.

SO ORDERED.

Narvasa, C.J., (Chairman), Kapunan, Purisima, and Pardo, JJ., concur.

[G.R. No. 108854. June 14, 1994.]

MA. PAZ FERNANDEZ KROHN, Petitioner, v. COURT OF APPEALS and EDGAR KROHN, JR., Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; PRIVILEGED COMMUNICATION; PHYSICIAN-PATIENT PRIVILEGE; PURPOSE.

— statutes making communications between physician and patient privileged are intended to inspire
confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms
and condition. Consequently, this prevents the physician from making public information that will result
in humiliation, embarrassment, or disgrace to the patient. For, the patient should rest assured with the
knowledge that the law recognizes the communication as confidential, and guards against the possibility
of his feelings being shocked or his reputation tarnished by their subsequent disclosure. The physician-
patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may
follow the disclosure of his ailments. Indeed, certain types of information communicated in the context
of the physician-patient relationship fall within the constitutionally protected zone of privacy, including
a patient’s interest in keeping his mental health records confidential. Thus, it has been observed that the
psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior
may be prevented by encouraging those in need of treatment for emotional problems to secure the
services of a psychotherapist.

2. ID.; ID.; ID.; ID.; REQUISITES; NOT COMPLIED WITH IN CASE AT BAR. — Lim v. Court of Appeals (214
SCRA 273 [1992]) clearly lays down the requisites in order that the privilege may be successfully
invoked: (a) the privilege is claimed in a civil cases; (b) the person against whom the privilege is claimed
is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the
information while he was attending to the patient in his professional capacity; (d) the information was
necessary to enable him to act in that capacity; and, (e) the information was confidential and, if
disclosed, would blacken the reputation (formerly character) of the patient." In the instant case, the
person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery
obstetrics. He is simply the patient’s husband who wishes to testify on a document executed by medical
practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his
testimony be considered a circumvention of the prohibition because his testimony cannot have the
force and effect of the testimony of the physician who examined the patient and executed the report.

3. ID.; ID.; HEARSAY TESTIMONY; EFFECT OF FAILURE TO OBJECT THERETO. — Counsel for petitioner
indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged.
In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged

616
communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to
object to the testimony on the ground that it was hearsay, counsel waived his right to make such
objection and, consequently, the evidence offered may be admitted.

4. CONSTITUTIONAL LAW; SUPREME COURT; TRIAL JUDGE AND COUNSELS ENJOINED TO AVOID
STRATAGEMS THAT FURTHER DELAY CASE; CASE AT BAR. — The instant appeal has taken its toll on the
petition for annulment. Three years have already lapsed and private respondent herein, as petitioner
before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the
parties’ respective counsel to act with deliberate speed in resolving the main action, and avoid any and
all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived
indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no
end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases.
Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate
issues so as not to retard the resolution of cases. Indeed, there is no point in unreasonably delaying the
resolution of the petition and prolonging the agony of the wedded couple who after coming out from a
storm still have the right to a renewed blissful life either alone or in the company of each other.

DECISION

BELLOSILLO, J.:

A confidential psychiatric evaluation report is being presented in evidence before the trial court in a
petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the
report is the husband who initiated the annulment proceedings, not the physician who prepared the
report.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged
communication between physician and patient, seeks to enjoin her husband from disclosing the
contents of the report. After failing to convince the trial court and the appellate court, she is now before
us on a petition for review on certiorari.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul
Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm and
Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a
stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the
martial strain. The effort however proved futile. In 1973, they finally separated in fact.

In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and
signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the report
among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in
Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera
conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." 1 On 10 July
1979, the decree was confirmed and pronounced "Final and Definite." 2

Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br. II,
issued an order granting the voluntary dissolution of the conjugal partnership.

On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the
trial court. 3 In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely
denied in her Answer as "either unfounded or irrelevant." 4

At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the
Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the rule
on privileged communication between physician and patient. Subsequently, Ma. Paz filed a
Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would

617
thwart the physician-patient privileged communication rule," 5 and thereafter submitted a Statement
for the Record asserting among others that "there is no factual or legal basis whatsoever for petitioner
(Edgar) to claim ‘psychological incapacity’ to annul their marriage, such ground being completely false,
fabricated and merely an afterthought." 6 Before leaving for Spain where she has since resided after
their separation, Ma. Paz also authorized and instructed her counsel to oppose the suit and pursue her
counterclaim even during her absence.chanrobles virtual lawlibrary

On 29 May 1991, Edgar opposed Ma. Paz’ motion to disallow the introduction of the confidential
psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz’ Statement for the Record.
8

On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation Report
in evidence and ruling that —

. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent’s
Motion; first, because the very issue in this case is whether or not the respondent had been suffering
from psychological incapacity; and secondly, when the said psychiatric report was referred to in the
compliant, the respondent did not object thereto on the ground of the supposed privileged
communication between patient and physician. What was raised by the respondent was that the said
psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the purpose of
determining whether the respondent as alleged in the petition was suffering from psychological
incapacity, the said psychiatric report is very material and may be testified to by petitioner (Edgar Krohn,
Jr.) without prejudice on the part of the respondent to dispute the said report or to cross-examine first
the petitioner and later the psychiatrist who prepared the same if the latter will be presented. 9

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991, and
directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A subsequent
motion for reconsideration filed by her counsel was likewise denied.

Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision promulgated
30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5 February 1993, the
motion to reconsider the dismissal was likewise denied. Hence, the instant petition for
review.chanrobles lawlibrary : rednad

Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric report
and prays for the admission of her Statement for the Record to form part of the records of the case. She
argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying
on matters which he may have acquired in attending to a patient in a professional capacity, "WITH
MORE REASON should a third person (like respondent-husband in this particular instance) be
PROHIBITED from testifying on privileged matters between a physician and patient or from submitting
any medical report, findings or evaluation prepared by a physician which the latter has acquired as a
result of his confidential and privileged relation with a patient." 12 She says that the reason behind the
prohibition is —

. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all facts,
circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. 13

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation
report "will set a very bad and dangerous precedent because it abets circumvention of the rule’s intent
in preserving the sanctity, security and confidence to the relation of physician and his patient." 14 Her
thesis is that what cannot be done directly should not be allowed to be done indirectly.

Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted in
her Answer, which she failed to verify as she had already left for Spain when her Answer was filed. She
maintains that her "Statement for the Record is a plain and simple pleading and is not as it has never
been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis

618
whatsoever to expunge it from the records.chanrobles virtual lawlibrary

Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the prohibition
applies only to a physician. Thus . . . . the legal prohibition to testify is not applicable to the case at bar
where the person sought to be barred from testifying on the privileged communication is the husband
and not the physician of the petitioner." 16 In fact, according to him, the Rules sanction his testimony
considering that a husband may testify against his wife in a civil case filed by one against the other.

Besides, private respondent submits that privileged communication may be waived by the person
entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use of
the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum Matrimoniale
which took it into account among others in deciding the case and declaring their marriage null and void.
Private respondent further argues that petitioner also gave her implied consent when she failed to
specifically object to the admissibility of the report in her Answer where she merely described the
evaluation report as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection
at the earliest opportunity to the evidence presented on privileged matters may be construed as an
implied waiver.chanrobles.com:cralaw:red

With regard to the Statement for the Record filed by petitioner, private respondent posits that this in
reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules of
the Court, hence, its exclusion from the records for failure to comply with the Rules is proper.

The treatise presented by petitioner on the privileged nature of the communication between physician
and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications
between physician and patient privileged are intended to inspire confidence in the patient and
encourage him to make a full disclosure to his physician of his symptoms and condition. 17
Consequently, this prevents the physician from making public information that will result in humiliation,
embarrassment, or disgrace to the patient. 18 For, the patient should rest assured with the knowledge
that the law recognizes the communication as confidential, and guards against the possibility of his
feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-
patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may
follow the disclosure of his ailments. Indeed, certain types of information communicated in the context
of the physician-patient relationship fall within the constitutionally protected zone of privacy, 20
including a patient’s interest in keeping his mental health records confidential. 21 Thus, it has been
observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of
antisocial behavior may be prevented by encouraging those in need of treatment for emotional
problems to secure the services of a psychotherapist.chanrobles law library

Petitioner’s discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays
down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in
a civil cases; (b) the person against whom the privilege is claimed is one duly authorized to practice
medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the
patient in his professional capacity; (d) the information was necessary to enable him to act in that
capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation
(formerly character) of the patient."cralaw virtua1aw library

In the instant case, the person against whom the privilege is claimed is not one duly authorized to
practice medicine, surgery obstetrics. He is simply the patient’s husband who wishes to testify on a
document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed
prohibition. Neither can his testimony be considered a circumvention of the prohibition because his
testimony cannot have the force and effect of the testimony of the physician who examined the patient
and executed the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the
ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked
the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal
mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his
right to make such objection and, consequently, the evidence offered may be admitted.

619
The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations
contained in the Statement for the Records are but refutations of private respondent’s declarations
which may be denied or disproved during the trial.chanrobles law library : red

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and
private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat.
We thus enjoin the trial judge and the parties’ respective counsel to act with deliberate speed in
resolving the main action, and avoid any and all stratagems that may further delay this case. If all
lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in
their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will
forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing
lower court rulings and raise only legitimate issues so as not to retard the resolution of cases. Indeed,
there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the
wedded couple who after coming out from a storm still have the right to a renewed blissful life either
alone or in the company of each other. 23

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of
respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED.cralawnad

SO ORDERED.

Cruz, Davide, Jr., Bellosillo, Quiason and Kapunan, JJ., concur.

[G.R. No. 91114. September 25, 1992.]

NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as Presiding Judge of
RTC-Rosales, Pangasinan, Branch 53, and JUAN SIM, Respondents.

Quisumbing, Torres & Evangelista for Petitioner.

Bince, Oficiana & Dancel for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT

PRIVILEGE; RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended to
facilitate and make safe full and confidential disclosure by the patient to the physician of all facts,
circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced
disclosure and publication on the witness stand, to the end that the physician may form a correct
opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the
general interest of the community.

2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the privilege is to protect the patient,
it may be waived if no timely objection is made to the physician’s testimony.

3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be successfully claimed, the
following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against whom
the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3. such person
acquired the information while he was attending to the patient in his professional capacity; 4. the
information was necessary to enable him to act in that capacity; and 5. the information was confidential,
and, if disclosed, would blacken the reputation (formerly character) of the patient."cralaw virtua1aw
library

4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four (4) fundamental conditions
necessary for the establishment of a privilege against the disclosure of certain communications, to wit:

620
"1. The communications must originate in a confidence that they will not be disclosed. 2. This element
of confidentiality must be essential to the full and satisfactory maintenance of the relation between the
parties. 3. The relation must be one which in the opinion of the community ought to be sedulously
fostered 4. The injury that would inure to the relation by the disclosure of the communications must be
greater than the benefit thereby gained for the correct disposal of litigation."cralaw virtua1aw library

5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The physician may be considered to be
acting in his professional capacity when he attends to the patient for curative, preventive, or palliative
treatment. Thus, only disclosures which would have been made to the physician to enable him "safely
and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the
tenor only of the communication that is privileged. The mere fact of making a communication, as well as
the date of a consultation and the number of consultations, are therefore not privileged from disclosure,
so long as the subject communicated is not stated."cralaw virtua1aw library

6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED
COMMUNICATIONS MUST PROVE REQUISITES THEREOF. — One who claims this privilege must prove
the presence of these aforementioned requisites.

7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; INFORMATION

GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. — There is authority to the effect that
information elicited during consultation with a physician in the presence of third parties removes such
information from the mantle of the privilege: "Some courts have held that the casual presence of a third
person destroys the confidential nature of the communication between doctor and patient and thus
destroys the privilege, and that under such circumstances the doctor may testify. Other courts have
reached a contrary result."cralaw virtua1aw library

8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while it may be true that counsel for the
petitioner opposed the oral request for the issuance of a subpoena ad testificandum to Dr. Acampado
and filed a formal motion for the quashal of the said subpoena a day before the witness was to testify,
the petitioner makes no claim in any of her pleadings that her counsel had objected to any question
asked of the witness on the ground that it elicited an answer that would violate the privilege, despite
the trial court’s advise that said counsel may interpose his objection to the testimony "once it becomes
apparent that the testimony, sought to be elicited is covered by the privileged communication rule." The
particular portions of the stenographic notes of the testimony of Dr. Acampado quoted in the
petitioner’s Petition and Memorandum, and in the private respondent’s Memorandum, do not at all
show that any objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado
could be covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof.

DECISION

DAVIDE, JR., J.:

This petition brings into focus the rule on the confidentiality of the physician-patient relationship.
Petitioner urges this Court to strike down as being violative thereof the resolution of public respondent
Court of Appeals in C.A.-G.R. SP No. 16991 denying due course to a petition to annul the order of the
trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert witness and not
as an attending physician of petitioner.

The parties are in agreement as to the following facts:chanrob1es virtual 1aw library

Petitioner and private respondent are lawfully married to each other.

On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court (RTC) of
Pangasinan a petition for annulment of such marriage on the ground that petitioner has been allegedly
suffering from a mental illness called schizophrenia "before, during and after the marriage and until the

621
present." After the issues were joined and the pre-trial was terminated, trial on the merits ensued.
Private respondent presented three (3) witnesses before taking the witness stand himself to testify on
his own behalf. On 11 January 1989, private respondent’s counsel announced that he would present as
his next witness the Chief of the Female Services of the National Mental Hospital, Dr. Lydia Acampado, a
Doctor of Medicine who specializes in Psychiatry. Said counsel forthwith orally applied for the issuance
of a subpoena ad testificandum requiring Dr. Acampado to testify on 25 January 1989. Petitioner’s
counsel opposed the motion on the ground that the testimony sought to be elicited from the witness is
privileged since the latter had examined the petitioner in a professional capacity and had diagnosed her
to be suffering from schizophrenia. Over such opposition, the subpoena was issued on 12 January
1989.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 24 January 1989, petitioner’s counsel filed an urgent omnibus motion to quash the subpoena and
suspend the proceedings pending resolution of the motion.

Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this urgent motion.
Movant argued that having seen and examined the petitioner in a professional capacity, Dr. Acampado
is barred from testifying under the rule on the confidentiality of a physician-patient relationship.
Counsel for private respondent contended, however, that Dr. Acampado would be presented as an
expert witness and would not testify on any information acquired while attending to the petitioner in a
professional capacity. The trial court, per respondent Judge, denied the motion and allowed the witness
to testify. Dr. Acampado thus took the witness stand, was qualified by counsel for private respondent as
an expert witness and was asked hypothetical questions related to her field of expertise. She neither
revealed the illness she examined and treated the petitioner for nor disclosed the results of her
examination and the medicines she had prescribed.

Since petitioner’s counsel insisted that the ruling of the court on the motion be reduced to writing,
respondent Judge issued the following Order on the same date:jgc:chanrobles.com.ph

"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner seeks to
prevent Dr. Lydia Acampado from testifying because she saw and examined respondent Nelly Lim in her
professional capacity perforce her testimony is covered by the privileged (sic) communication rule.

Petitioner contends that Dr. Acampado is being presented as an expert witness and that she will not
testify on any information she acquired in (sic) attending to Nelly Lim in her professional capacity.

Based on the foregoing manifestation of counsel for petitioner, the Court denied the respondent’s
motion and forthwith allowed Dr. Acampado to testify. However, the Court advised counsel for
respondent to interpose his objection once it becomes apparent that the testimony sought to be elicited
is covered by the privileged communication rule.

On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an expert in
psychiatry; she was asked to render an opinion as to what kind of illness (sic) are stelazine tablets
applied to; she was asked to render an opinion on a (sic) hypothetical facts respecting certain
behaviours of a person; and finally she admitted she saw and treated Nelly Lim but she never revealed
what illness she examined and treated her (sic); nor (sic) the result of her examination of Nelly Lim, nor
(sic) the medicines she prescribed.

WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1

On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2
for certiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the aforesaid order
of respondent Judge on the ground that the same was issued with grave abuse of discretion amounting
to lack of jurisdiction, and to prohibit him from proceeding with the reception of Dr. Acampado’s
testimony.chanrobles.com : virtual law library

On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due course to the
petition on the ground that "the petitioner failed in establishing the confidential nature of the testimony
given by or obtained from Dr. Acampado when she testified on January 25, 1989." Hence, the

622
respondent Judge committed no grave abuse of discretion. In support thereof, the respondent Court
discussed the conditions which would render as inadmissible testimonial evidence between a physician
and his patient under paragraph (c), Section 24, Rule 130 of the Revised Rules of Court and made the
following findings:jgc:chanrobles.com.ph

"The present suit is a civil case for annulment of marriage and the person whose testimony is sought to
be stopped as a privileged communication is a physician, who was summoned by the patient in her
professional capacity for curative remedy or treatment. The divergence in views is whether the
information given by the physician in her testimony in open court on January 25, 1989 was a privileged
communication. We are of the opinion that they do not fall within the realm of a privileged
communication because the information were (sic) not obtained from the patient while attending her in
her professional capacity and neither were (sic) the information necessary to enable the physician to
prescribe or give treatment to the patient Nelly Lim. And neither does the information obtained from
the physician tend to blacken the character of the patient or bring disgrace to her or invite reproach. Dr.
Acampado is a Medical Specialist II and in-charge (sic) of the Female Service of the National Center for
Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate of the Philippine Board
of Psychiatrists. She was summoned to testify as an expert witness and not as an attending physician of
petitioner.

After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find no declaration that
touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during
the period she attended her patient in a professional capacity. Although she testified that she examined
and interviewed the patient, she did not disclose anything she obtained in the course of her examination,
interview and treatment of her patient. Given a set of facts and asked a hypothetical question, Dr.
Acampado rendered an opinion regarding the history and behaviour of the fictitious character in the
hypothetical problem. The facts and conditions alleged in the hypothetical problem did not refer and
(sic) had no bearing to (sic) whatever information or findings the doctor obtained from attending the
(sic) patient. A physician is not disqualified to testify as an expert concerning a patient’s ailment, when
he can disregard knowledge acquired in attending such patient and make answer solely on facts related
in (sic) the hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme Court of Arizona Jan. 7, 1926).
Expert testimony of a physician based on hypothetical question (sic) as to cause of illness of a person
whom he has attended is not privileged, provided the physician does not give testimony tending to
disclose confidential information related to him in his professional capacity while attending to the
patient. (Crago v. City of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).

The rule on privilege (sic) communication in the relation of physician and patient proceeds from the
fundamental assumption that the communication to deserve protection must be confidential in their
origin. Confidentiality is not to be blindly implied from the mere relation of physician and patient. It
might be implied according to circumstances of each case, taking into consideration the nature of the
ailment and the occasion of the consultation. The claimant of the privilege has the burden of
establishing in each instance all the facts necessary to create the privilege, including the confidential
nature of the information given." 4

Her motion to reconsider the resolution having been denied, petitioner took this recourse under Rule 45
of the Rules of Court. In her view, the respondent Court of Appeals "seriously erred" :chanrob1es virtual
1aw library

"I.

. . . in not finding that all the essential elements of the rule on physician-patient privileged
communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the Revised
Rules of Evidence) exist in the case at bar.

II.

. . . in believing that Dr. Acampado ‘was summoned as an expert witness and not as an attending
physician of petitioner.’

623
III.

. . . in concluding that Dr. Acampado made ‘no declaration that touched (sic) or disclosed any
information which she has acquired from her patient, Nelly Lim, during the period she attended her
patient in a professional capacity.’

IV.

. . . in declaring that ‘the petitioner failed in establishing the confidential nature of the testimony given
by or obtained from Dr. Acampado.’" 5

We gave due course to the petition and required the parties to submit their respective Memoranda 6
after the private respondent filed his Comment 7 and the petitioner submitted her reply 8 thereto. The
parties subsequently filed their separate Memoranda.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible error in its
challenged resolution.

The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which
reads:jgc:chanrobles.com.ph

"SECTION 24. Disqualification by reason of privileged communication. — The following persons cannot
testify as to matters learned in confidence in the following cases:chanrob1es virtual 1aw library

x x x

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the
consent of the patient, be examined as to any advice or treatment given by him or any information
which he may have acquired in attending such patient in a professional capacity, which information was
necessary to enable him to act in that capacity, and which would blacken the reputation of the
patient." chanrobles virtual lawlibrary

This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of Court with two
(2) modifications, namely: (a) the inclusion of the phrase "advice or treatment given by him," and (b)
substitution of the word reputation for the word character. Said Section 21 in turn is a reproduction of
paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court with a modification consisting in the
change of the phrase "which would tend to blacken" in the latter to "would blacken." 9 Verily, these
changes affected the meaning of the provision. Under the 1940 Rules of Court, it was sufficient if the
information would tend to blacken the character of the patient. In the 1964 Rules of Court, a stricter
requirement was imposed; it was imperative that the information would blacken such character. With
the advent of the Revised Rules on Evidence on 1 July 1989, the rule was relaxed once more by the
substitution of the word character with the word reputation. There is a distinction between these two
concepts." ‘Character’ is what a man is, and ‘reputation’ is what he is supposed to be in what people say
he is.’Character’ depends on attributes possessed, and ‘reputation’ on attributes which others believe
one to possess. The former signifies reality and the latter merely what is accepted to be reality at
present." 10

This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential
disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by
apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the
end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his
patient. 11 It rests in public policy and is for the general interest of the community. 12

Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made
to the physician’s testimony. 13

624
In order that the privilege may be successfully claimed, the following requisites must
concur:jgc:chanrobles.com.ph

"1. the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery
or obstetrics;

3. such person acquired the information while he was attending to the patient in his professional
capacity;

4. the information was necessary to enable him to act in that capacity; and

5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character)
of the patient." 14

These requisites conform with the four (4) fundamental conditions necessary for the establishment of a
privilege against the disclosure of certain communications, to wit:jgc:chanrobles.com.ph

"1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the
relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered

4. The injury that would inure to the relation by the disclosure of the communications must be greater
than the benefit thereby gained for the correct disposal of litigation." 15

The physician may be considered to be acting in his professional capacity when he attends to the patient
for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to
the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. 16
It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of
making a communication, as well as the date of a consultation and the number of consultations, are
therefore not privileged from disclosure, so long as the subject communicated is not stated." 17

One who claims this privilege must prove the presence of these aforementioned requisites. 18

Our careful evaluation of the submitted pleadings leads Us to no other course of action but to agree
with the respondent Court’s observation that the petitioner failed to discharge that burden. In the first
place, Dr. Acampado was presented and qualified as an expert witness. As correctly held by the Court of
Appeals, she did not disclose anything obtained in the course of her examination, interview and
treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical problem did
not refer to and had no bearing on whatever information or findings the doctor obtained while
attending to the patient. There is, as well, no showing that Dr. Acampado’s answers to the questions
propounded to her relating to the hypothetical problem were influenced by the information obtained
from the petitioner. Otherwise stated, her expert opinion excluded whatever information or knowledge
she had about the petitioner which was acquired by reason of the physician-patient relationship existing
between them. As an expert witness, her testimony before the trial court cannot then be excluded. The
rule on this point is summarized as follows:chanrobles virtual lawlibrary

"The predominating view, with some scant authority otherwise, is that the statutory physician-patient
privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony
in response to a strictly hypothetical question in a lawsuit involving the physical mental condition of a
patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical
facts stated, excluding and disregarding any personal professional knowledge he may have concerning
such patient. But in order to avoid the bar of the physician-patient privilege where it is asserted in such
a case, the physician must base his opinion solely upon the facts hypothesized in the question, excluding

625
from consideration his personal knowledge of the patient acquired through the physician and patient
relationship. If he cannot or does not exclude from consideration his personal professional knowledge of
the patient’s condition he should not be permitted to testify as to his expert opinion." 19

Secondly, it is quite clear from Dr. Acampado’s testimony that the petitioner was never interviewed
alone. Said interviews were always conducted in the presence of a third party,
thus:jgc:chanrobles.com.ph

"Q I am asking you, doctor, whom did you interview?

A I interviewed the husband first, then the father and after having the history, I interviewed the patient,
Nelly.

Q How many times did Juan Sim and Nelly Lim go to your office?

A Now, the two (2) of them came three (3) times. As I have stated before, once in the month of April of
1987 and two (2) times for the month of June 1987, and after that, since July of 1987, it was the father
of Nelly, Dr. Lim, who was bringing Nelly to me until November of 1987.

Q Now, Dr. Lim is a fellow physician?

A Yes, I understand.

Q Was there anything that he told you when he visited with you in a clinic?

A I would say that there was none. Even if I asked information about Nelly, I could not get anything from
Dr. Lim.

Q Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who was also present
during that interview?

A No, sir, I don’t remember any." 20

There is authority to the effect that information elicited during consultation with a physician in the
presence of third parties removes such information from the mantle of the
privilege:jgc:chanrobles.com.ph

"Some courts have held that the casual presence of a third person destroys the confidential nature of
the communication between doctor and patient and thus destroys the privilege, and that under such
circumstances the doctor may testify. Other courts have reached a contrary result." 21

Thirdly, except for the petitioner’s sweeping claim — that" (T)he information given by Dr. Acampado
brings disgrace and invite (sic) reproach to petitioner by falsely making it appear in the eyes of the trial
court and the public that the latter was suffering from a mental disturbance called schizophrenia —
which caused, and continues to cause, irreparable injury to the name and reputation of petitioner and
her family," 22 — which is based on a wrong premise, nothing specific or concrete was offered to show
that indeed, the information obtained from Dr. Acampado would blacken the former’s "character" (or
"reputation"). Dr. Acampado never disclosed any information obtained from the petitioner regarding
the latter’s ailment and the treatment recommended therefor.chanrobles.com : virtual law library

Finally, while it may be true that counsel for the petitioner opposed the oral request for the issuance of
a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said
subpoena a day before the witness was to testify, the petitioner makes no claim in any of her pleadings
that her counsel had objected to any question asked of the witness on the ground that it elicited an
answer that would violate the privilege, despite the trial court’s advise that said counsel may interpose
his objection to the testimony "once it becomes apparent that the testimony, sought to be elicited is
covered by the privileged communication rule." The particular portions of the stenographic notes of the
testimony of Dr. Acampado quoted in the petitioner’s Petition 23 and Memorandum, 24 and in the

626
private respondent’s Memorandum, 25 do not at all show that any objections were interposed. Even
granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to
seasonably object thereto amounted to a waiver thereof.

WHEREFORE, the instant petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

Bidin, Romero and Melo, JJ., concur.

G.R. No. 131636 March 5, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ARTEMIO INVENCION Y SORIANO, appellant.

DAVIDE, JR., C.J.:

Before us for automatic review1 is the Decision2 dated 22 September 1997 of the Regional Trial Court of
Tarlac, Tarlac, Branch 65, in Criminal Case No. 9375, finding accused-appellant Artemio Invencion y
Soriano guilty beyond reasonable doubt of the crime of rape committed against his 16-year-old
daughter Cynthia P. Invencion, and sentencing him to suffer the penalty of death and to pay Cynthia the
sum of P50,000 as moral damages and P25,000 as exemplary damages, as well as the costs of suit.

Artemio was charged before the Regional Trial Court of Tarlac with thirteen counts of rape in separate
complaints docketed as Criminal Cases Nos. 9363 to 9375, all dated 17 October 1996. The cases were
consolidated and jointly tried. At his arraignment Artemio entered a plea of not guilty in each case.

The witnesses presented by the prosecution in its evidence in chief were Elven Invencion, Eddie Sicat,
Gloria Pagala, Dr. Rosario Fider, and Atty. Florencio Canlas. Presented as rebuttal witnesses were Gloria
Pagala and Celestino Navarro.

Elven Invencion, an 8-year-old grade two pupil of Sapang Tagalog Elementary School in Tarlac, Tarlac,
testified that he is a half-brother of Cynthia and son of Artemio with his second common-law wife.
Sometime before the end of the school year in 1996, while he was sleeping in one room with his father
Artemio, Cynthia, and two other younger brothers, he was awakened by Cynthia’s loud cries. Looking
towards her, he saw his father on top of Cynthia, doing a pumping motion. After about two minutes, his
father put on his short pants.3

Elven further declared that Artemio was a very strict and cruel father and a drunkard. He angrily
prohibited Cynthia from entertaining any of her suitors. Whenever he was drunk, he would maul Elven
and quarrel with his stepfather, Celestino Navarro.4

Eddie Sicat, a 40-year-old farmer and neighbor of Artemio in Barangay Sapang Tagalog, Tarlac, Tarlac,
testified that on the second week of March 1996, between 6:00 and 7:00 a.m., while he was passing by
the house of Artemio on his way to the field to catch fish, he heard somebody crying. He then peeped
through a small opening in the destroyed portion of the sawali wall of Artemio’s house. He saw Cynthia
lying on her back and crying, while her father was on top of her, doing a pumping motion. Eddie
observed them for about fifteen seconds, and then he left and proceeded to the field to catch fish.5 He
reported what he had witnessed to Artemio’s stepfather, Celestino, later that morning.6

Gloria Pagala, the mother of Cynthia and former common-law wife of Artemio, testified that she and
Artemio started living together in Guimba, Nueva Ecija, in February 1969. Out of their common-law
relationship, they had six children, one of whom was Cynthia. In March 1982, she and Artemio parted
ways permanently. Later, Gloria and her children lived in Pura, Tarlac. When Artemio’s mother died
sometime in 1996, Cynthia lived with Artemio in a small one-room dwelling owned by Celestino and

627
located in Barangay Sapang Tagalog, Tarlac, Tarlac.7 On 30 August 1996, her son Novelito told her that
Cynthia was pregnant. Gloria then went to the house of Artemio and asked Cynthia about her condition.
The latter confessed that she had been sexually abused by her father. Gloria then went to the office of
the National Bureau of Investigation (NBI) in Tarlac and reported what Artemio had done to their
daughter Cynthia.8

Dr. Rosario Fider of Tarlac Provincial Hospital testified that she examined Cynthia on 16 September 1996.
She found Cynthia to be five to six months pregnant and to have incomplete, healed hymenal
lacerations at 3, 5, 8 o’clock positions, which could have been caused by sexual intercourse or any
foreign body inserted in her private part.9

Atty. Florencio Canlas, an NBI agent, testified that on 18 September 1996, Cynthia, accompanied by her
mother, complained before him and NBI Supervising Agent Rolando Vergara that she was raped by her
father Artemio. She then executed a written statement,10 which she subscribed and sworn to before
Atty. Canlas.11

The defense did not present Artemio as a witness. Instead, his counsel de parte, Atty. Isabelo Salamida,
took the witness stand and testified for the defense. He declared that on 24 June 1997 (the same day
when he testified before the court), between 10:45 and 11:00 a.m., he and his secretary went to the
house of Artemio in Barangay Sapang Tagalog. The hut was made of sawali. Its door was padlocked, and
its windows were shut. When he went around the house and tried to peep through the old sawali walls
on the front and left and right sides of the hut, he could not see anything inside the room where
Artemio and his children used to sleep. Although it was then about noontime, it was dark inside.12 Atty.
Salamida then concluded that prosecution witness Eddie Sicat was not telling the truth when he
declared having seen what Artemio did to Cynthia when he peeped through a small opening in the
sawali wall of the house in the early morning sometime on the second week of March 1996.

On rebuttal, Gloria Pagala testified that the house where Artemio used to live was a small hut with some
destroyed portions in its sawali walls. When she went there to visit her children sometime in December
1995, there was a hole in front and at the sidewall of the hut facing a vacant lot where people passed by
to fish in a nearby brook.13 When she went to the place again sometime in September 1996 after she
was informed of Cynthia’s pregnancy, she noticed that the destroyed portions of the hut’s sawali walls
were not yet repaired.14

The second rebuttal witness Celestino Navarro, stepfather of Artemio, testified that he is the owner of
the small house where Artemio and his children used to reside. At the time that Artemio and his
children, including Cynthia, were living in that house, the hut’s old sawali walls had some small holes in
them, thus confirming the testimony of Eddie Sicat. After Artemio was arrested on the basis of Cynthia’s
complaint before the NBI, Celestino made some repairs in the hut by, among other things, placing
galvanized iron sheets to cover the holes at the destroyed portions of the sawali walls. Thereafter, a
person named Alvin occupied the house.15

In its Decision of 22 September 1997, the trial court convicted Artemio in Criminal Case No. 9375. It,
however, acquitted him in all the other twelve cases for lack of evidence.

In his Appellant’s Brief, Artemio contends that the trial court erred in

x x x BELIEVING THE TESTIMONIES OF THE PROSECUTION WITNESSES;

II

x x xNOT DISMISSING THIS CASE FOR FAILURE OF THE PROSECUTION TO PROVE [HIS] GUILT x x x
BEYOND REASONABLE DOUBT.

Artemio attacks the competency and credibility of Elven as a witness. He argues that Elven, as his son,
should have been disqualified as a witness against him under Section 20(c), Rule 130 of the Rules of

628
Court.16 Besides, Elven’s testimony appears not to be his but what the prosecution wanted him to say, as
the questions asked were mostly leading questions. Moreover, Elven had ill-motive in testifying against
him, as he (Artemio) was cruel to him.

In another attempt to cast doubt on the credibility of the prosecution witnesses, Artemio points to the
following inconsistencies in their testimonies: (1) as to the time of the commission of the crime, Elven
testified having seen Artemio on top of his sister one night in March 1996, while Eddie Sicat testified
having seen them in the same position between 6:00 and 7:00 a.m. in the second week of March 1996;
(2) as to the residence of Cynthia in 1996, Gloria testified that the former was living with her in Guimba
from November 1995 to September 1996, while Elven and Eddie declared that she was in Sapang
Tagalog in March 1996; and (3) as to the residence of Artemio, Jr., Gloria stated that he was living with
the appellant, but later she declared that he was living with her in Pura.

Artemio also argues that since his house had no electricity and was dark even at daytime, it was
impossible for Elven and Eddie to see him allegedly doing pumping motion on top of Cynthia. In his
Reply Brief, he likewise urges us to disregard the testimonies of rebuttal witnesses Celestino and Gloria.
According to him, Celestino had an ax to grind against him (Artemio) because he had been badgering
Celestino for his share of the lot where the hut stands, which was owned by Artemio’s deceased mother.
On the other hand, Gloria wanted to get rid of Artemio because she was already cohabiting with another
man.

In the Appellee’s Brief, the Office of the Solicitor General (OSG) prays for the affirmation of Artemio’s
conviction and sentence, but recommends that a civil indemnity in the amount of P75,000 be awarded
in addition to the awards of moral and exemplary damages.

We find no cogent reason to overturn the findings of the trial court on the culpability of Artemio.

It is doctrinally settled that the factual findings of the trial court, especially on the credibility of the
witnesses, are accorded great weight and respect and will not be disturbed on appeal. This is so because
the trial court has the advantage of observing the witnesses through the different indicators of
truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a
discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the
furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it,
the scant or full realization of the solemnity of an oath, or the carriage and mien.17 This rule, however,
admits of exceptions, as where there exists a fact or circumstance of weight and influence that has been
ignored or misconstrued by the court, or where the trial court has acted arbitrarily in its appreciation of
the facts.18 We do not find any of these exceptions in the case at bar.

As to the competency of Elven to testify, we rule that such is not affected by Section 25, Rule 130 of the
Rules of Court,19 otherwise known as the rule on "filial privilege." This rule is not strictly a rule on
disqualification because a descendant is not incompetent or disqualified to testify against an
ascendant.20 The rule refers to a privilege not to testify, which can be invoked or waived like other
privileges. As correctly observed by the lower court, Elven was not compelled to testify against his
father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven
declared that he was testifying as a witness against his father of his own accord and only "to tell the
truth."21

Neither can Artemio challenge the prosecution’s act of propounding leading questions on Elven. Section
10(c) of Rule 132 of the Rules of Court22 expressly allows leading questions when the witness is a child of
tender years like Elven.

The alleged ulterior motive of Elven in testifying against his father also deserves scant consideration.
Such insinuation of ill-motive is too lame and flimsy. As observed by the OSG, Elven, who was of tender
age, could not have subjected himself to the ordeal of a public trial had he not been compelled by a
motive other than to bring to justice the despoiler of his sister’s virtue. There is no indication that Elven
testified because of anger or any ill-motive against his father, nor is there any showing that he was
unduly pressured or influenced by his mother or by anyone to testify against his father. The rule is that

629
where there is no evidence that the principal witness for the prosecution was actuated by improper
motive, the presumption is that he was not so actuated and his testimony is entitled to full credence.23

We find as inconsequential the alleged variance or difference in the time that the rape was committed,
i.e., during the night as testified to by Elven, or between 6:00 and 7:00 a.m. per the testimony of Eddie.
The exact time or date of the commission of rape is not an element of the crime. What is decisive in a
rape charge is that the commission of the rape by the accused has been sufficiently proved.
Inconsistencies and discrepancies as to minor matters irrelevant to the elements of the crime cannot be
considered grounds for acquittal.24 In this case, we believe that the crime of rape was, indeed,
committed as testified to by Elven and Eddie.

The alleged inconsistencies in the testimonies of both Elven and Gloria do not impair the credibility of
these witnesses. We agree with the trial court that they are minor inconsistencies, which do not affect
the credibility of the witnesses. We have held in a number of cases that inconsistencies in the
testimonies of witnesses that refer to minor and insignificant details do not destroy the witnesses’
credibility.25 On the contrary, they may even be considered badges of veracity or manifestations of
truthfulness on the material points in the testimonies. What is important is that the testimonies agree
on essential facts and substantially corroborate a consistent and coherent whole.26

Artemio’s allegation that it was impossible for both Elven and Eddie to have seen and witnessed the
crime because the room was dark even at daytime was convincingly disputed by rebuttal witnesses
Gloria Pagala and Celestino Navarro. Furthermore, as observed by the OSG, even if the hut was without
electricity, Elven could not have been mistaken in his identification of Artemio because he had known
the latter for a long time. Moreover, Elven was at the time only two meters away from Cynthia and
Artemio. Even without sufficient illumination, Elven, who was jostled out of his sleep by Cynthia’s loud
cry, could observe the pumping motion made by his father.27

The alleged ill-motives on the part of Gloria and Celestino were not sufficiently proved. Nothing in the
records suggests any reason that would motivate Gloria to testify falsely against Artemio, who is the
father of her other children. Moreover, we have repeatedly held that no mother would subject her child
to the humiliation, disgrace, and trauma attendant to the prosecution for rape if she were not
motivated solely by the desire to have the person responsible for her child’s defilement
incarcerated.28 As for Celestino, he testified that the lot where the hut stands is owned by his daughter
Erlinda, and not by Artemio’s mother.29 At any rate, even without Celestino’s testimony, Artemio’s
conviction would stand.

The remaining issue for our resolution is the correctness of the penalty of death imposed by the trial
court. The death penalty was imposed because of the trial court’s appreciation of the special qualifying
circumstances that Artemio is the father of the victim and the latter was less than 18 years old at the
time the crime was committed.

Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, which is the governing law in this
case, pertinently reads:

Article 335. When and how rape is committed. –

The crime of rape shall be punished by reclusion perpetua.

xxx

The death penalty shall also be imposed if the crime of rape is committed with any of the
following circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third
civil degree, or the common-law spouse of the parent of the victim.

630
To justify the imposition of the death penalty in a rape committed by a father on a daughter, the
minority of the victim and her relationship with the offender, which are special qualifying circumstances,
must be alleged in the complaint or information and proved by the prosecution during the trial by the
quantum of proof required for conviction. The accusatory portion of the complaint in Criminal Case No.
9375 reads as follows:

That on or about the month of March 1996 at Sapang Tagalog, Municipality of Tarlac, Province
of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused
Artemio S. Invencion did then and there willfully, unlawfully and feloniously by using force and
intimidation have carnal knowledge of his daughter Cynthia P. Invencion who was sixteen (16)
years old, in their house.

CONTRARY TO LAW.30

Although the relationship of Cynthia with her father Artemio was alleged in the complaint and duly
established by evidence during trial, the allegation in the complaint regarding her age was not clearly
proved.

In the very recent case of People v. Pruna,31 we set the guidelines in appreciating age either as an
element of the crime or as a qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified true copy
of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal
certificate and school records which show the date of birth of the victim would suffice to prove
age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed
or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a
member of the family either by affinity or consanguinity who is qualified to testify on matters
respecting pedigree such as the exact age or date of birth of the offended party pursuant to
Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following
circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is
that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is
that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is
that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the
victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice
provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure
of the accused to object to the testimonial evidence regarding age shall not be taken against
him.

6. The trial court should always make a categorical finding as to the age of the victim.

In the present case, no birth certificate or any similar authentic document was presented and offered in
evidence to prove Cynthia’s age. The statement in the medical certificate showing Cynthia’s age is not
proof thereof, since a medical certificate does not authenticate the date of birth of the victim. Moreover,
pursuant to Pruna, Gloria’s testimony regarding Cynthia’s age was insufficient, since Cynthia was alleged

631
to be 16 years old already at the time of the rape and what is sought to be proved is that she was then
18 years old. Moreover, the trial court did not even make a categorical finding on Cynthia’s minority.
Finally, the silence of Artemio or his failure to object to the testimonial evidence regarding Cynthia’s age
could not be taken against him.

It must be stressed that the severity of death penalty, especially its irreversible and final nature once
carried out, makes the decision-making process in capital offenses aptly subject to the most exacting
rules of procedure and evidence.32 Accordingly, in the absence of sufficient proof of Cynthia’s minority,
Artemio cannot be convicted of qualified rape and sentenced to suffer the death penalty. He should only
be convicted of simple rape and meted the penalty of reclusion perpetua.

As regards the civil liability of Artemio, the awards of moral damages in the amount of P50,000 and
exemplary damages in the amount of P25,000 are insufficient. Civil indemnity, which is mandatory upon
the finding of the fact of rape,33 should also be awarded. In simple rape, the civil indemnity for the
victim shall not be less than P50,000.

WHEREFORE, the decision of the Regional Trial Court, Branch 65, Tarlac, Tarlac, in Criminal Case No.
9375 is hereby AFFIRMED with the modification that that accused Artemio Invencion y Soriano is held
guilty beyond reasonable doubt as principal of the crime of simple rape, and is sentenced to suffer the
penalty of reclusion perpetua and to pay the victim Cynthia Invencion the sums of P50,000 as indemnity;
P50,000 as moral damages; and P25,000 as exemplary damages.

Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., Bellosillo, Puno, Vitug, Mendoza, Panganiban, Quisumbing, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Carpio-Morales, Callejo, Sr. and Azcuna, JJ., concur.
Ynares-Santiago, and Corona, JJ., on leave.

G.R. No. 157984 July 8, 2004

MOISES SIMANGAN, petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

DECISION

CALLEJO, SR., J.:

Before us is a petition for review of the Decision1 of the Court of Appeals in CA-G.R. CR No. 11971 and its
Resolution denying the petitioner’s motion for reconsideration of the said decision.

The Antecedents

The petitioner Moises Simangan and Loreto Bergado were charged with murder in an Information filed
with the Circuit Criminal Court in Cagayan, the accusatory portion of which reads:

That on or about February 10, 1980, in the municipality of Solana, province of Cagayan, and
within the jurisdiction of this Honorable Court, the said accused, Moises Simangan y Trinidad
and Loreto Bergado y Rigor alias Boy, together with Bening Gomabong (sic), who is still at large

632
 and not yet apprehended, and two (2) John Does, who were not identified, armed with guns and
knives, conspiring together and helping one another, with intent to kill; with evident
premeditation and with treachery, did then and there willfully, unlawfully and feloniously attack,
assault and stab one Ernesto Flores, inflicting upon him several wounds on his body which
caused his death.

Contrary to law.2

The accused, assisted by counsel, were duly arraigned, and pleaded not guilty to the charge.

The Case for the Prosecution

At 8:00 p.m. on February 10, 1980, the petitioner, Loreto Bergado, Bening Gumabong and two other
male persons arrived at the store of the spouses Ernesto Flores and Sofronia Saquing in Barangay
Maasin, Solana, Cagayan. The Flores Spouses, along with fifteen-year-old Lorna Saquing, Sofronia’s niece,
were then having dinner. The five men were in fatigue uniforms and were armed with long firearms.
When they knocked on the door, Lorna responded and inquired what they wanted, and she was told
that they wanted to buy cigarettes. Ernesto and Sofronia entertained the men, two of whom were their
neighbors, Loreto Bergado and Bening Gumabong.

Momentarily, the petitioner asked Ernesto to go with them to serve as a guide. In response, Ernesto
invited the men to sleep at their house, but the latter refused. Ernesto then agreed to accompany the
visitors. The petitioner warned Ernesto and Sofronia not to tell anyone that they had been to the store.
As they were leaving, Romeo Galano, the couple’s helper at the store, arrived. Ernesto ordered Romeo
to go with him, and the latter did as he was told. However, at about 9:00 p.m., Romeo returned to the
store and told Sofronia that Ernesto had sent him back to get money, matches and cigarettes. He also
told Sofronia that he and Ernesto were seated as they conversed with each other. Sofronia gave P50.00,
a box of matches and a ream of Hope cigarettes. Romeo left the store at about 9:30 p.m. 3 Ernesto did
not return that evening.4

The next morning, Romeo Balunggaya arrived at Sofronia’s house and told her that Ernesto was dead,
and that his body had been found about three hundred (300) meters away. Sofronia and Lorna rushed
to the place, and found Ernesto’s body near the creek.5 Ernesto was lying on the ground, face down,
with his hands tied behind his back. Police investigators Pagulayan and Caronan arrived, along with a
photographer. Pictures of the victim were taken.6

Dr. Anastacia Taguba, the Municipal Health Officer, performed an autopsy of the cadaver and found that
the victim sustained multiple stabwounds. She concluded that the victim died because of shock due to
massive internal and external hemorrhage from multiple stab wounds.7 She also signed the Certificate of
Death of Ernesto.8

On February 18, 1980, Fernando Saquing attended his classes in civil engineering at the St. Louis
University in Tuguegarao, Cagayan. He noticed his seatmate and close friend, petitioner Moises
Simangan, writing on a piece of paper. He grabbed the paper, read it, and saw that the petitioner had
written the following: "Andres Buena alias Ka Ren, Cely Peña alias Ka Laarni, Moises Simangan alias Ka
Ronie Ledesma." The petitioner warned Fernando not to divulge his secret to anybody.9

On February 24, 1980, Fernando and the petitioner were on their way home from their ROTC classes at
the St. Louis University. The petitioner then narrated to Fernando that at about 7:00 p.m. on February
10, 1980, after buying cigarettes from a store, the store-owner agreed to go with him and his four
companions. The petitioner revealed that they brought the victim over to the place where twenty of his
other comrades were waiting. He also told Fernando that he and his companions stabbed the victim
over and over again, and tasted the latter’s blood so that "they would not get sick." The petitioner
warned that if Fernando divulged to anyone what he had just revealed, he (the petitioner), would drink
his blood, too.10

633
The petitioner did not know that Fernando was the first cousin of Sofronia, the widow of Ernesto Flores,
who was, in turn, the store-owner referred to by Moises.11 Fernando immediately told Sofronia what the
petitioner had told him.

On March 21, 24 and 25, 1980, Sofronia, Fernando and Lorna gave their respective statements12 to Sgt.
Quirino Espiritu of the Philippine Constabulary in Tuguegarao, Cagayan, in which they identified Moises
as one of Ernesto’s assailants.

The Case for the Defense

The petitioner denied any involvement in the killing of Ernesto. He testified that on the day that Ernesto
was killed, he was in his boarding house in Tuguegarao. He was the classmate of Fernando at the St.
Louis University in Tuguegarao, Cagayan, where they were enrolled in the civil engineering
course.13 Sometime in February 1980, Fernando asked him about Andres Balbuena who was from Solana,
Cagayan. A week later, he was arrested on suspicions that he had something to do with the death of
Ernesto.14 Fernando, who was in the PC barracks, pointed to him as one of the assailants of Ernesto. He
was surprised at Fernando’s accusation.15

The petitioner also denied knowing Loreto Bergado, claiming that he only met the latter at the provincial
jail.16 He had not been to Barangay Maasin, Solana.

The accused Loreto Bergado also denied killing Ernesto. He testified that he did not know Ernesto and
the latter’s wife, Sofronia. On February 10, 1980, he was in his house at Nangalasauan, Amulung,
Cagayan. After waking up the next day, he went to his farm.17

To corroborate his testimony, Bergado presented his neighbor, Feliciano Trinidad, who testified that
after his classes on February 10, 1980, he went out of their house at Barangay Nangalasauan, Amulung,
Cagayan, to get a breath of fresh air. He then saw Bergado and spoke with him until 9:00 p.m.18

Cornelia Trinidad corroborated the testimony of the petitioner that she boarded in the house of
Rosendo Tuddao in February 1980.

The defense also presented Leona Balunggaya, who testified that between 4:00 and 5:00 a.m. on
February 11, 1980, Sofronia and Leon Rigor arrived at their house, crying. Sofronia inquired if Ernesto
had passed by, because her husband had not slept in their house. Balunggaya replied in the negative.
When Balunggaya asked Sofronia if she recognized the armed men who were with her husband,
Sofronia replied that she did not because their faces were new to her.19 Aside from their house, there
were no other houses in the vicinity of Sofronia’s place. Right after Sofronia and Leon had left, she and
her husband Romeo went to their farm to drive away the birds and saw the cadaver of Ernesto, about
three hundred (300) meters away.

After trial, the court rendered judgment finding the accused guilty beyond reasonable doubt of
homicide. The decretal portion of the decision reads:

WHEREFORE, the accused Moises Simangan y Trinidad and Loreto Bergado y Rigor having been
found by the Court guilty beyond reasonable doubt of the crime of Homicide defined and
penalized under Art. 249 of the Revised Penal code, and considering the presence of two
aggravating circumstances, are hereby sentenced each to an indeterminate penalty of ten (10)
years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months
and one (1) day of reclusion temporal, as maximum, to indemnify the heirs of the victim Ernesto
Flores the sum of P30,000.00, proportionately and to pay costs pro rata.

SO ORDERED.20

On appeal to the Court of Appeals, it rendered judgment, affirming with modification, the decision of
the trial court. It found the testimonies of Sofronia, Lorna, and Fernando, credible and entitled to full
probative weight.

634
The Present Petition

Petitioner Moises Simangan filed the instant petition for review on certiorari, asserting that:

THE TRIAL COURT ERRED IN BELIEVING THE PROSECUTION WITNESSES AND DISREGARDING THE
EVIDENCE FOR THE DEFENSE.

II

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF
THE CRIME OF HOMICIDE.21

The petitioner contends that the prosecution failed to adduce circumstantial evidence sufficient to
prove his guilt of the crime of homicide beyond reasonable doubt. He asserts that Sofronia and Lorna
pointed to and identified him only upon the prodding of Fernando, who told Sofronia that he (the
petitioner) had admitted to stabbing and killing the victim together with twenty of his other companions.
The petitioner contends that the testimony of Fernando is hearsay, as he had no personal knowledge
that he was one of those who killed the victim.

On the other hand, the Court of Appeals declared in its assailed decision that the array of circumstantial
evidence adduced by the prosecution constitutes proof beyond cavil that the petitioner was one of
those who killed the victim. As catalogued by the appellate court:

(1) at about 8:00 o’clock in the evening of February 10, 1980, accused Moises Simangan, Loreto
Bergado, Bening Gumabong and two unidentified companions each of whom were armed with
long rifles, went to the store of the victim Ernesto Flores at Sitio Masin (sic), Iraga, Solana and
bought cigarettes;

(2) that Moises Simangan asked Ernesto Flores to guide Simangan, Bergado, Gumabong and
their two companions on their way to the road;

(3) that Simangan, Bergado and their two companions, together with Ernesto Flores and Romeo
Galano, were out of the house;

(4) that Simangan warned Sofronia and Lorna not to tell anybody that he and his companions
went to the house;

(5) that five days after the death of Ernesto, Simangan became worried when told by his
classmate Fernando Saquing that several persons were arrested at Nangalasauan, Amulung, for
the death of Ernesto;

(6) that two weeks after the death of the victim, Simangan admitted to Fernando that he and
twenty others had just killed a person in Masin, (sic) Iraga, Solana, after the victim accompanied
them to show them the way;

(7) and that Fernando was warned not to relate it to any other person with the threat that if it
will be known by others, Simangan will drink his blood.22

The Ruling of the Court

We find the contention of the petitioner to be unmeritorious. Sofronia narrated in detail how the
petitioner and his companions, armed with long firearms, managed to convince Ernesto to go with them
and be their guide on the road. Sofronia pointed to and identified the petitioner in open court. Thus:

Q On February 10, 1980, at 8:00, do you recall where you were?

635
A Yes, Sir.

Q Where were you?

A We were at home, Sir.

Q And you mentioned . . . and who were your companions at that time?

A My husband, my sister Lorna Saquing, my daughter, Sir.

Q What is the name of your daughter?

A Jannet, Sir.

Q How old was she at that time?

A Two (2) years old, Sir.

Q What is the name of your sister?

A Lorna, Sir.

Q And your husband?

A Ernesto Flores, Sir.

Q What were you doing at that time?

A Eating, Sir.

Q Where is your house located?

A Masim (sic), Solana, Cagayan, Sir.

Q Do you recall of anything unusual that happened on February 10, 1980, when you were
actually eating with your family, if any?

A On February 10, 1980, while we were actually taking our supper, there was a person who
went to buy cigarette in our store and it was my sister Lorna who went to open the store and
saw five persons holding gun (sic), Sir.

Q Where is your store located?

A In Masim (sic), Solana, Cagayan, Sir.

Q Is your store also a part of your house where you live-in (sic)?

A Yes, Sir.

Q When these five persons came to your house and Lorna Saquing, your sister, was the one who
opened the door, what happened next?

A When those five persons entered our store, Lorna came to us in the kitchen and called for us
and the three of us proceeded to the store and looked to those five persons, Sir.

Q And what happened next when you went to see those five persons?

636
 A We saw five persons with long firearms, Sir.

Q Do you know the names of those five persons whom you saw?

A I know the three of them only, Sir.

Q What are the names of these three persons whom you know?

A Moises Simangan, Boy Bergado and Bening Bungabong (sic), Sir.

Q This Bening Bungabong (sic), if he is in court, can you point him out?

A No, he is not here in court, Sir.

Q Yes, but this Loreto Bergado, if you can see him in the courtroom, can you point him out?

A Yes, Sir.

INTERPRETER:

Witness pointing to that person in brown t-shirt who identified himself to be Loreto Bergado y
Rigor when he was pointed to by the witness.

Q How about this person by the name of Moises Simangan, will you look around the courtroom
and see if he is here?

A He is there, Sir.

INTERPRETER:

Witness pointing to a person seated in the courtroom who stood up when he was pointed to by
the witness and identified himself to be Moises Simangan y Trinidad.23

The petitioner even warned Sofronia and Ernesto not to tell anyone that he and his companions had
been in their house:

Q And when Moises Simangan came to know that your barangay captain in Iraga was Mr. Mario
Marsan, what happened next, if any?

A Then Moises Simangan requested my husband to accompany them to the road because
Moises Simangan is new in our place, Sir.

Q And what did your husband say, if any?

A Then my husband told them if it will be alright for them, they may sleep in the house, Sir.

Q And what did he say?

A Then Moises Simangan answered my husband that: "we cannot sleep in your place because
we might be late tomorrow," Sir.

Q And what happened next?

A And then Moises Simangan told us not to tell anybody about their going to our store, Sir.

Q And when Moises Simangan warned you not to tell anybody about their presence in your
place, what happened next, if any?

637
 A Then my husband told me that he would accompany them to the road, Sir.

Q And when your husband told you that he would bring them to the road, what happened next,
if any?

A And then Moises Simangan and his companions took my husband to the road and not long
afterwards, my boy by the name of Romeo Galano, went back to the store and told me that my
husband told him to go back to get money and cigarette and also [a] match, Sir.

Q And what time did they take away your husband from your house?

A 8:00 o’clock in the evening, Sir.

Q Was it exactly 8:00 o’clock or past 8:00?

A Past 8:00, it could be past 8:00 o’clock already, Sir.24

Lorna also testified that when she attended to the petitioner and his companions, she saw their faces:

Q Now, while at about that time on February 10, 1980, do you remember any unusual incident
that happened in the house of your sister?

A Yes, Sir.

Q What was that incident that happened?

A On that evening, Sir, while we were eating I heard a voice calling outside or I heard someone
calling outside with the word "Diyos Apo" and when I finished eating, I went inside the house
and asked who was that, and nobody answered, and so, what I did was to open the door and I
was surprised there were five armed men at our door who went inside our house.

Q You said that these five men who entered the house were armed, will you please tell this
Honorable Court what were their arms?

A All the five men who entered our house were armed with long rifle each of them (sic).

Q Now, do you know the identity of these five armed men who entered the house where you
were staying?

ATTY. VELASCO:

The question is vague, Your Honor.

Whether he refers to the present or at that time of the incident.

COURT:

Reformed. (sic)

FISCAL HERNANDO:

Q At the time of the incident, of these five armed men who entered the house of your sister
upon your opening the door, do you know the identity of these five armed men or any of them?

A Yes, Sir, I know them.

Q Will you please tell this Honorable Court who were they?

638
 A Moises Simangan, Boy Bergado, Bening Gumabong and two others whom I do not know.

Q You said that at the time you opened the door and these five men entered, you already knew
three of them, namely Moises Simangan, Bening Gumabong and Boy Bergado, why do you know
them?

A I was able to recognize them, Sir, through their faces.

Q Why were they familiar to you?

A When I opened the door, Sir, and the five armed men entered our house, I stared at their
faces.

Q Will you please answer my question, why were you able or why were you familiar with the
faces of these men when they entered the house of your sister that evening of February 10,
1980?

ATTY. SORIANO:

She answered, "I saw their faces."

COURT:

Witness may answer.

A These Boy Bergado and Bening Gumabong were my barcada in Maasim, Solana, Cagayan.

FISCAL HERNANDO:

Q What do you mean by saying that Gumabong and Bergado were your barcada?

A They were my companions, Sir.

Q For how long were they your barcada before the incident?

A Three years, Sir.

Q Now, with respect to Moises Simangan, why do you say that his face is familiar to you at the
time of the incident?

A I stared at his face because he was new in our place.25

It was only when Fernando told his cousin Sofronia that the petitioner had admitted to being one of
those who inveigled Ernesto into going with them, and thereafter killed the victim, that she and Lorna
heard the petitioner’s name for the first time.

Q Now, do you know, I withdraw that question, Your Honor. How about Moises Simangan, did
you know him already before February 10, 1980?

A No, Sir.

Q Why do you know his name then?

A I came to know his name when Moises Simangan informed Fernando, my cousin, about those
things that they have done to my husband, but Fernando did not mention to him that I am his
cousin and it was Fernando, my cousin, who informed me about his name, Sir.26

639
The testimony of Fernando, that the petitioner admitted to him that he was one of the victim’s killers, is
not hearsay. The testimony of Fernando was offered to prove the petitioner’s extrajudicial admission of
his involvement in the killing of Ernesto. Such admission is an admission against personal interest, and is
admissible against the petitioner.27

We note that the petitioner admitted during trial that he and Fernando were classmates in a civil
engineering subject at St. Louis University, and in the ROTC training. The petitioner also admitted that
he and Fernando were friends. Hence, it was not impossible for the petitioner to have revealed his
involvement in the killing to Fernando. The petitioner did not hesitate to inform Fernando that he and
his companions had killed Ernesto because an informer had told them that Ernesto was "bad." The
testimony of Fernando reads, viz:

Q What else did he tell you?

ATTY. SORIANO:

May we ask the witness that he be directed to speak louder.

COURT:

You speak louder.

A There, Sir.

FISCAL HERNANDO:

Q And what was that?

A He informed me that they had just killed a person in Maasim (sic), Solana, Cagayan and we
threw him beside a creek. And I asked Moises Simangan, "How come that that person is bad,"
and he answered me, "We had an informer who is their neighbor."

FISCAL HERNANDO:

Q Now, you said that there were some companions of Moises Simangan because he used the
word "WE," were you able to find out from him how many persons were those who perpetrated
the crime in Maasim (sic), Solana, Cagayan, as you stated recently?

ATTY. SORIANO:

May we request that witness should stop.

FISCAL HERNANDO:

That is the narration, Your Honor.

ATTY. SORIANO:

May we request that the narration should be in a question and answer (sic).

COURT:

Continue.

A What Moises Simangan narrated to me, Sir, is "We were five persons who went to the store of
that person and (sic) to buy cigarette. At the time the persons were waiting in the store and
after we bought the cigarette, we let the person accompany us on our way because we do not
know the way and then Moises Simangan brought the person to the place where there were

640
 twenty persons waiting who were their companions and then they stabbed the person and in
stabbing, each person tasted the blood (sic) that, according to Moises Simangan, they will not
get sick.

FISCAL HERNANDO:

Q Did you or did you not ask him what time of the day or night was that?

A No, Sir. When they visited the house of the victim to buy cigarette I was informed by Moises
Simangan that it was 7:30 in the evening.

Q Now, after having revealed to you all these things, do you remember if Moises Simangan told
you anything else?

A Yes, Sir.

Q What did he tell you?

A He told me that Nanding, I now warn you, and you know me, "once they know these, I am
going to drink your blood."28

The petitioner’s alibi and denial of the crime charged cannot prevail over the positive and
straightforward identification made by Lorna and Sofronia that he was one of the armed men who left
with Ernesto, coupled with the petitioner’s own admission that he was one of the victim’s assailants. We
note that there is no evidence, nor any showing of any ill-motive on the part of Lorna, Sofronia and
Fernando to prevaricate. In fact, the petitioner and Fernando were close friends. Thus, the presumption
is that the said witness acted in good faith; hence, their testimonies must be accorded credence and full
probative weight.

The three witnesses cannot be faulted, and their credibility denigrated for giving their statements to Sgt.
Espiritu of the Philippine Constabulary only on March 21 to 25, 1980. As copiously explained by the
Court of Appeals:

Appellant’s attempt to cast doubt on the credibility of [the] positive identification made by
Sofronia and Lorna that they were among those five (5) armed persons who took along the
victim Ernesto Flores on the pretext that appellant Simangan being new to the place would need
said victim to guide him on the road. Both Lorna and Sofronia knew personally appellant
Bergado and Gumabong being Lorna’s former friends and Sofronia’s neighbors. On the other
hand, the delay in revealing the identities of appellants Bergado and Simangan had been
sufficiently explained. It must be recalled that appellant Simangan had made a stern warning
before they left that Sofronia and Lorna should not tell anybody about their presence in the
place that night. Those men being then armed and determined to take along with them the
victim out on the road, even threatening Sofronia and Lorna not to divulge the incident to
others, there was strong reason for said witnesses to keep mum on the identities of appellants
even when the police investigators arrived the following morning and asked them about the
names of the five (5) persons or at least any of them they had recognized. It is understandable
when a witness does not immediately report the identity of the offender after a startling
occurrence, more so when he is related to the victim as this makes it all the more traumatic. It is,
likewise, understandable for a witness to fear for his safety especially when town mates are
involved in the commission of the crime. Even if the principal witnesses, Lorna and Sofronia, did
not witness the actual killing of Ernesto Flores, the circumstances that the latter was last seen
alive together with the appellants and Gumabong, along with two (2) other unidentified
companions that night who were armed with guns, that he was never to return home that night,
and his dead body discovered in a nearby field, lying face down on the ground, both his arms
tied at his back with multiple stab wounds on his neck and back – the combination of these
circumstances leave no doubt on their minds that those five (5) persons were responsible for
Ernesto’s gruesome death and such conviction was enough to temporarily silence them from

641
 revealing immediately to the police investigators the identities of appellant Bergado and
Gumabong, and subsequently, Simangan.29

In sum, then, we find and so rule that the appellate court correctly affirmed the decision of the trial
court convicting the petitioner of homicide. However, the appellate court erred in appreciating against
the petitioner the aggravating circumstances of cruelty and nighttime. In the first place, such
circumstances were not alleged in the Information as mandated by Section 8, Rule 110 of the Revised
Rules of Criminal Procedure.30 Although the petitioner committed the crime before the effectivity date
of said Rules, the same should be applied retroactively as it is favorable to him.31

Moreover, the crime is not aggravated by cruelty simply because the victim sustained ten stab wounds,
three of which were fatal. For cruelty to be considered as an aggravating circumstance, there must be
proof that, in inflicting several stab wounds on the victim, the perpetrator intended to exacerbate the
pain and suffering of the victim.32 The number of wounds inflicted on the victim is not proof of cruelty.

Consequently, then, the penalty imposed by the trial court on the petitioner must be modified. There
being no modifying circumstances attendant to the crime, the maximum of the indeterminate penalty
shall be taken from the medium period of the imposable penalty of homicide which is reclusion
temporal. The minimum of the indeterminate penalty shall be taken from the full range of the penalty
lower by one degree for reclusion temporal, which is prision mayor.

IN LIGHT OF THE FOREGOING, the petition is PARTIALLY GRANTED. The assailed decision of the Court of
Appeals in CA-G.R. CR No. 11971 is AFFIRMED with MODIFICATION. The petitioner is hereby sentenced
an indeterminate penalty of from Ten (10) Years and One (1) Day of prision mayor in its maximum
period, as minimum, to Sixteen (16) Years of reclusion temporal in its medium period, as maximum.

No costs.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and Tinga, JJ., concur.

[G.R. NO. 146202. July 14, 2004]

RUFINA PATIS FACTORY, and JESUS LUCAS, SR. Petitioners, v. JUAN ALUSITAIN, Respondent.

DECISION

CARPIO MORALES, J.:

From the June 23, 2000 Decision1 of the Court of Appeals in CA-G.R. SP No. 54722 affirming that of the
National Labor Relations Commission (NLRC) awarding retirement benefits in the amount of P88,595.00
to respondent Juan Alusitain (Alusitain), petitioners Rufina Patis Factory and Jesus Lucas, Sr. (Lucas)
come to this Court on a Petition for Review on Certiorari .

The antecedent facts are as follows:chanroblesvirtua1awlibrary

In March 1948, Alusitain was hired as a laborer at the Rufina Patis Factory owned and operated by
petitioner Lucas.After close to forty three years or on February 19, 1991, Alusitain admittedly tendered
his letter of resignation which is quoted verbatim:

February 19, 1991

TO:MR. JESUS LUCAS, JR.

ASSISTANT MANAGER

RUFINA PATIS FACTORY

642
Gentlemen:chanroblesvirtua1awlibrary

I would like to tender my separation letter as a laborer, from your good company effective this 20 th of
February 1991 : May I take this opportunity to extent my heartfelt thanks to you for having given me the
chance to commit myself to work in your factory from which I owe varied experiences that has made a
part of me and be what I am today. Anticipating your outmost consideration on this matter. I remain.

VERY TRULY YOURS,

(Signed) JUAN A. ALUSITAIN

RECEIVED THE ABOVE SEPARATION LETTER ON THIS DAY, FEBRUARY 20, 1991.

(Signed) BY:JESUS R. LUCAS, JR.

Assistant Manager2 cralawred

On May 22, 1991, Alusitain executed a duly notarized affidavit of separation from employment and
submitted the same on even date to the Pensions Department of the Social Security System (SSS) .The
affidavit reads:chanroblesvirtua1awlibrary

Republic of the Philippines) SSS

Quezon City)

AFFIDAVIT OF SEPARATION FROM EMPLOYMENT

I, JUAN ASERAS ALUSITAIN of legal age, 63, Filipino and residing at Int. 18 Flores St., Mal. Mla, after
having [been] sworn to in accordance with law hereby depose and state;

1.That I am [a] bonafide member of the Social Security System with SSS Number 03-0107252-0

2.That I was separated from my last employer RUFINA PATIS FACTORY with address at 290 C. Arellano
St., Malabon, Metro Manila on 2-20-91 and thereafter, I was never again re-employed.

3.That I cannot secure a certification of separation from my last employer because I have not reached
the company applicable age of retirement.

4.That I am executing this affidavit to attest to the truth of the foregoing facts and to support my
retirement paper.

FURTHER AFFIANT SAYETH NAUGHT.

(Signed)

Affiant3 cralawred

On January 7, 1993, Republic Act No. 7641 (R.A. 7641),4 AN ACT AMENDING ARTICLE 287 OF
PRESIDENTIAL DECREE NO. 442, AS AMENDED OTHERWISE KNOWN AS THE LABOR CODE OF THE
PHILIPPINES, BY PROVIDING FOR RETIREMENT PAY TO QUALIFIED PRIVATE SECTOR EMPLOYEES IN THE
ABSENCE OF ANY RETIRMENT PLAN IN THE ESTABLISHMENT, took effect5 providing, among other things,
thusly:chanroblesvirtua1awlibrary

Art. 287. Retirement. Any employee may be retired upon reaching the retirement age established in the
collective bargaining agreement or other applicable employment contract.

xxx

643
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the
establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty five
(65) years which is hereby declared the compulsory retirement age, who has served at least five (5)
years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least
one half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered
as one whole year.

Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean fifteen
(15) days plus one twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5)
days of service incentive leaves.

xxx

Violation of this provision is hereby declared unlawful and subject to the penal provisions under Article
288 of this Code.6 cralawred

Sometime in 1995, Alusitain, claiming that he retired from the company on January 31, 1995, having
reached the age of 657 and due to poor health, verbally demanded from petitioner Lucas for the
payment of his retirement benefits. By his computation, he claimed that he was entitled
to P86,710.008 broken down as follows:chanroblesvirtua1awlibrary

Retirement Benefits = month salary for every year of service

One-half month salary = P1,885.00

Years of Service = 47 years

Retirement Benefits = P86,710.009 cralawred

Petitioner Lucas, however, refused to pay the retirement benefits of Alusitain, prompting the latter to
make a written demand on September 20, 1995. Lucas, however, remained adamant in his refusal to
give in to Alusitains demands.

Having failed to arrive at an amicable settlement, Alusitain filed on November 17, 1995 a complaint
before the NLRC against petitioners Rufina Patis Factory and Lucas for non-payment of retirement
benefits. The complaint was docketed as NLRC Case No. 00-11-07474-95.

Petitioners maintained that Alusitain had resigned from the company on February 19, 1991 per his letter
of resignation and the Affidavit of Separation dated May 22, 1991.10 cralawred

On the other hand, while respondent admitted having tendered his letter of resignation on February 19,
1991 and executed the Affidavit of Separation on May 22, 1991,11 he nevertheless maintained that he
continued working for petitioners until January 1995, the date of actual retirement, due to illness and
old age, and that he merely accomplished the foregoing documents in compliance with the
requirements of the SSS in order to avail of his retirement benefits.12 cralawred

By Decision13 of February 6, 1997, Executive Labor Arbiter Valentin C. Guanio upheld Alusitains position
in this wise:chanroblesvirtua1awlibrary

After carefully considering the respective submissions of the parties and the evidence they adduced in
support of their opposing claims, this Office rules in favor of the complainant.

To substantiate his allegation that he had continued working for the respondents even after his
supposed resignation on February 19, 1991, the complainant submitted in evidence his sworn statement
and that of his eldest daughter, Gloria Alusitain. In his affidavit, the complainant swore that: Bagamat
ako ay pensionado ng SSS, ako ay patuloy na naglilingkod/nagtratrabaho sa kompanya ng Rufina Patis
Factory hanggang noong buwan ng Enero 1995. By way of corroboration, his daughter on the other
hand, stated under oath that since elementary school (sic), she was the one who brought food to her

644
father at work in the Rufina Patis Factory; and that the last time she brought him food at the said factory
was in the month of January 1995.

While the foregoing statements may appear to be self-serving, still they have the ring of truth. From
experience, it is quite common that the eldest daughter would be tasked with the duty of taking lunch
to her father at work.Besides, the respondents failed to controvert these sworn declarations by
submitting their counter-affidavits.If it is true that the complainant had in fact stopped working on
February 1991, the respondents could have produced a number of witnesses who could have attested
to this. Hence, their failure to submit even a single affidavit does not speak well of their credibility in this
regard.

Thus, this Office finds that the complainant had executed the letter of resignation and affidavit of
separation from employment in 1991 only for the purpose of securing a pension from the SSS, but that
despite this he remained in the employ of the respondents until his actual retirement on January 31,
1995, two years after the effectivity of Republic Act 7641 on January 7, 1993. At the time of his
retirement, the complainant was already sixty-five (65) years of age and had served the respondent
company for forty-seven (47) years and therefore, he is legally entitled to the retirement benefits
granted by R.A. 7641 which is one-half (1/2) month salary for every year of service which as computed
will amount to a total of P88,595.00 (P1,885.00 x 47 years).

WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering the respondents Rufina
Patis Factory and Jesus Lucas, Sr., jointly and severally to pay complainant Juan Alusitain his retirement
benefits in the amount of P88,595.00.

SO ORDERED.14 cralawred

On appeal, the NLRC, by Resolution15 of May 17, 1999, affirmed the Labor Arbiters decision.

Aggrieved by the NLRC resolution, petitioners brought the case on certiorari 16 to the Court of Appeals
which, by the assailed decision, dismissed it, holding that the NLRC committed no error much less any
grave abuse of discretion17 as Alusitain was able to sufficiently establish that his letter of resignation and
Affidavit of Separation were executed only for the purpose of securing a pension from the SSS and that
he remained in the employ of petitioners.18 cralawred

Their motion for reconsideration having been denied by the Court of Appeals by Resolution19 of
December 6, 2000, petitioners lodged the present petition.20 cralawred

Petitioners argue that the appellate court erred when it did not give weight and probative value to
Alusitains letter of resignation and Affidavit of Separation, choosing instead to give credence to his self-
serving sworn statement and that of his daughter that he remained in the employ of petitioners until
January 31, 1995.

Petitioners assert that the Affidavit of Separation, being a public document, is entitled to full faith and
credit upon its face, and proof is required to assail and controvert the same, citing Cacho v. Court of
Appeals 21 and Arrieta v. Llosa .22 cralawred

Petitioners further assert that the appellate court erred in applying retroactively R.A. 7641 as said law
does not expressly provide for such retroactive application and to do so would defeat the clear intent of
Congress. Furthermore, petitioners insist that the case of Oro Enterprises, Inc. v. NLRC23 is inapplicable
and submit that what is controlling is the case of J.V. Angeles Construction Corp. v. NLRC 24 where this
Court held that before R.A. 7641 could be given retroactive effect, the claimant should still be an
employee of the employer at the time the said law took effect,.

The petition is impressed with merit.

This Courtheld inOro25 that R.A. 7641 should be given retroactive effect, viz:chanroblesvirtua1awlibrary

645
R.A. 7641 is undoubtedly a social legislation. The law has been enacted as a labor protection measure
and as a curative statute that absent a retirement plan devised by, an agreement with, or a voluntary
grant from, an employer can respond, in part at least, to the financial well-being of workers during their
twilight years soon following their life of labor.There should be little doubt about the fact that the law
can apply to labor contracts still existing at the time the statute has taken effect, and that its benefits
can be reckoned not only from the date of the laws enactment but retroactively to the time said
employment contracts have started.. .26 (Underscoring supplied)cralawlibrary

The doctrine enunciated in Oro has been clarified in several cases. In CJC Trading, Inc. v. NLRC,27 this
Court, speaking through Justice Florentino Feliciano, held that R.A. 7641 may be given retroactive effect
where (1) the claimant for retirement benefits was still the employee of the employer at the time the
statute took effect; and (2) the claimant had complied with the requirements for eligibility under the
statute for such retirement benefits.28 These twin requirements for the retroactive application of R.A.
7641 have been reiterated in Philippine Scout Veterans Security and Investigation Agency v.
NLRC ,29 Cabcaban v. NLRC ,30 J.V. Angeles Construction Corporation v. NLRC, 31 and Manuel L. Quezon
University v. NLRC .32 cralawred

It is thus clear that in order for respondent to claim retirement benefits from petitioner Rufina Patis
Factory, he has to prove that he was its employee at the time R.A. 7641 took effect.

As a general rule, the factual findings and conclusions of quasi-judicial agencies such as the NLRC are, on
appeal, accorded great weight and even finality, unless petitioners are able to show that the NLRC
arbitrarily disregarded the evidence before it or misapprehended evidence of such nature as to compel a
contrary conclusion if properly appreciated.33 cralawred

In affirming the decision of the NLRC and the Labor Arbiter, the Court of Appeals disregarded Alusitains
letter of resignation and Affidavit of Separation and gave weight to his and his daughters sworn
statements that he remained in the employ of petitioners until January 31, 1995.

It is a basic rule in evidence, however, that the burden of proof is on the part of the party who makes
the allegations34 ei incumbit probatio, qui dicit, non qui negat.35 If he claims a right granted by law, he
must prove his claim by competent evidence, relying on the strength of his own evidence and not upon
the weakness of that of his opponent.

In the case at bar, it was incumbent on Alusitain to prove that he retired on January 31, 1995 and not on
February 20, 1991 as indicated on his letter of resignation. As the following discussion will show, he
utterly failed to discharge the onus.

Respondents letter of resignation and May 22, 1991 Affidavit of Separation which he admittedly
voluntarily executed constitute admissions against his own interest.36 The said documents belie his claim
that he retired on January 31, 1995. Being an admission against interest, the documents are the best
evidence which affords the greatest certainty of the facts in dispute.37 The rationale for the rule is based
on the presumption that no man would declare anything against himself unless such declaration was
true.38 Thus, it is fair to presume that the declaration corresponds with the truth, and it is his fault if it
does not.39 cralawred

While these two documents may have facilitated the release of Alusitains retirement benefits from the
SSS, hence, beneficial to him at that time, they may still be considered admissions against interest since
the disserving quality of the admission is judged as of the time it is used or offered in evidence and not
when such admission is made.40 Thus, it matters not that the admission is self-serving when it was made,
so long as it is against respondents present claim.41 cralawred

No doubt, admissions against interest may be refuted by the declarant.42 It bears stressing, however,
that Alusitains Affidavit of Separation filed with the SSS is a notarial document,43 hence, prima
facie evidence44 of the facts expressed therein.45 cralawred

646
Since notarial documents have in their favor the presumption of regularity, to contradict the facts stated
therein, there must be evidence that is clear, convincing and more than merely
preponderant.46 cralawred

Alusitain explains through his subsequent sworn statement that he only executed these two documents
in order to obtain his retirement benefits from the SSS.His daughter, also by sworn statement,
corroborates his explanation. His position does not persuade.

In order for a declarant to impugn a notarial document which he himself executed, it is not enough for
him to merely execute a subsequent notarial document.What the law requires in order to contradict the
facts stated in a notarial document is clear and convincing evidence.The subsequent notarial documents
executed by respondent and his daughter fall short of this standard.

The case of Reyes v. Zaballero47 is instructive.In said case, the creditor executed on December 1, 1944 a
notarial document stating that he was releasing a real estate mortgage as the debtor had already paid
his debt. On even date, the creditor subsequently executed an affidavit without the debtors knowledge
stating that he had accepted the payment under protest and obligado por las circunstancias actuales.
This Court held that the creditors statement in his affidavit that he received the money obligado por las
circunstancias actuales is self-serving evidence.48 cralawred

A contrary rule would undermine the confidence of the public in the integrity of notarial documents.
In Dequito v. Llamas,49 this Court held:chanroblesvirtua1awlibrary

After executing the affidavit voluntarily wherein he made admissions and declarations against his own
interest under the solemnity of an oath, he cannot be allowed to spurn them and undo what he has
done. He cannot, even with great repentance, retrieve the body he forsook and now wishes to
live.50 cralawred

Neither is the sworn statement of Alusitains daughter sufficient to prove that he indeed retired on
January 31, 1995.The February 6, 1997 Decision of Labor Arbiter Guanio relates the material portion of
the sworn statement of Alusitains daughter as follows:chanroblesvirtua1awlibrary

.. . By way of corroboration, his daughter on the other hand, stated under oath that since elementary
school (sic), she was the one who brought food to her father at work in the Rufina Patis Factory; and
that the last time she brought him food at the said factory was in the month of January
1995.51 (Emphasis and underscoring supplied)cralawlibrary

Alusitains daughter did not state, however, that her father worked for petitioner Rufina Patis Factory
until his alleged retirement on January 31, 1995. All she said was that the last time she brought him food
at the factory was in January 1995. To conclude that Alusitain was still employed on January 1995 from
the mere fact that his daughter brought him food at the Rufina Patis Factory is non sequitur.

Lastly, while it is evident that Alusitains subsequent sworn statement is in the nature of a retraction of
his May 22, 1991 Affidavit of Separation, such retraction does not necessarily negate the affidavit. For
retractions are generally unreliable and looked upon with considerable disfavor by the courts as they
can easily be fabricated. Thus, before accepting a retraction, it is necessary to examine the
circumstances surrounding it and possible motives for reversing the previous declaration, as these
motives may not necessarily be in consonance with the truth.To automatically adopt them hook, line
and sinker would allow unscrupulous individuals to throw wide open the doors to fraud.

In the case at bar, Alusitains retraction is highly suspect. Other than his bare and self-serving allegations
and the sworn statement of his daughter which, as reflected above, cannot be relied upon, he has not
shown any scintilla of evidence that he was employed with petitioner Rufina Patis Factory at the time
R.A. 7641 took effect. He did not produce any documentary evidence such as pay slips, income tax
return, his identification card, or any other independent evidence to substantiate his claim.

647
While the NLRC and its Labor Arbiters are not bound by technical rules of procedure and evidence in the
adjudication of cases,52 this should not be construed as a license to disregard fundamental rules on
evidence in proving ones allegations.53 cralawred

In fine, Alusitain having failed to prove that he was an employee of petitioner at the time R.A. 7641 took
effect, his claim for retirement benefits thereunder must be disallowed.

WHEREFORE, the petition is GRANTED. The Court of Appeals June 23, 2000 Decision and December 6,
2000 Resolution in CA-G.R. SP No. 54722 are REVERSEDand SET ASIDE.

SO ORDERED.

Vitug, (Chairman), Sandoval-Gutierrez, and Corona, JJ., concur.

A.M. No. RTJ-95-1326. July 8, 1998

ANNABELLE R. GUTIERREZ, complainant, vs. HON. RODOLFO G. PALATTAO, Respondent.

DECISION

QUISUMBING, J.:

Complainant Annabelle R. Gutierrez was convicted by respondent Judge Rodolfo G. Pallatao of Branch
33, Regional Trial Court of Manila, for Violation of the Bouncing Checks Law (Batas Pambansa Blg. 22)
and for Estafa under Article 315 (2)(d) of the Revised Penal Code. Aggrieved by what she perceived as a
wrongful conviction, she filed this administrative case against respondent for Serious Misconduct, Graft
and Corruption, Knowingly Rendering an Unjust Decision, Falsification of Public Document, and Gross
Ignorance of the Law. She averred that, since the checks that were the bases of the informations against
her were not presented in evidence by the prosecution, her conviction was erroneous and the
respondent should be held administratively liable therefor.

The material facts, based on the pleadings, are as follows:

Complainant borrowed the sum of Three Hundred Seventy Thousand Pesos (P370,000) from one Ligaya
V. Santos, for which she issued five (5) checks as guarantee for the loan, to wit:

Drawee Bank Check No. Date Amount

UCPB SRD022496 April 7, 1993 P120,000.00

UCPB SRD022513 April 15, 1993 P 60,000.00

UCPB PTU031796 June 6, 1993 P 60,000.00

UCPB PTU031797 June 14, 1993 P 60,000.00

UCPB PTU031798 June 21, 1993 P 70,000.00

Santos deposited these checks in her account with the Philippine National Bank (PNB). Upon
presentment by PNB of said checks to the drawee United Coconut Planters Bank (UCPB), they were
dishonored, for the reason: closed account

Thereafter, Santos made several verbal and written demands for Gutierrez to pay the amounts covered
by the checks, but the latter allegedly refused to make good her obligation to pay. Hence, Santos filed
five (5) criminal complaints for the Violation of Batas Pambansa Blg. 22, and one complaint for Estafa
against Gutierrez. After preliminary investigation, the corresponding informations were filed in court
and the cases were raffled to respondent Judges sala.

648
On November 15, 1993, while the said informations were pending in court, Santos executed the
following letter in her own handwriting:

Nov. 15, 1993

TO WHOM IT MAY CONCERN:

This is to certify that I am dropping my charges against Annabelle Rama and that she already change (sic)
the bouncing checks with a (sic) new ones.

I hope for your kind understanding on this case.

(Sgd.) Ligaya V. Santos

Lions Road Arroceros

On the same day, Gutierrez also executed the following document in her own handwriting:

I Annabelle Rama Gutierrez certify that I received all my old checks from Mrs. Ligaya Santos in exchange
to (sic) the new ones I gave her.

In agreement, Mrs. Santos agreed to dropped (sic) her case against me

(Sgd.) Annabelle Gutirrez

41 Derby, White Plains, Q.C.

The foregoing documents were executed by Santos and Gutierrez after the latter replaced the five (5)
checks subject of the informations. The replacement checks were subsequently honored except Check
No. SRD-043939 dated May 10, 1994, in the amount of P50,000.00, drawn against the UCPB. This check
was allegedly dishonored by the UCPB upon presentment by PNB, Santos depository bank, for the
reason: stop payment

The evidence for the prosecution was summarized by respondent Judge in his Decision as follows:

"To prove these cases against the accused, the Fiscal called to the witness stand Ligaya V. Santos, the
herein complainant who identified herself as a widow, businesswoman and who resides at Lions Rd.,
Arroceros St., Ermita, Manila. In the course of her testimony, the following exhibits were marked in
evidence: Exhibit A- letter dated November 15, 1993, Exhibit A-1 Signature of Ligaya V. Santos, Exhibits B
Check No. SRD-043979 for P50,000.00 Exhibit B-1 Notice of dishonor, Exhibit C letter of demand and
Exhibit C-1 signature of complainant. xxx.1cräläwvirtualibräry

On the basis of the above evidence proffered by the prosecution, respondent Judge convicted the
accused in the aforestated five criminal cases for Violation of B.P. Blg. 22 and in one for Estafa. She was
sentenced as follows:

"WHEREFORE, premises considered, judgment is hereby rendered convicting the accused for violation of
B.P. Blg. 22. In Criminal Case No. 93-128841, accused Annabelle R. Gutierrez is hereby sentenced to
suffer imprisonment of one (1) year and to pay a fine of P120,000.00 without subsidiary imprisonment
in case of insolvency. In Criminal Case No. 93-128842, accused is hereby sentenced to suffer
imprisonment of one (1) year and to pay a fine of P60,000.00 without subsidiary imprisonment in case of
insolvency. For Criminal Case No. 93-128843, accused is hereby sentenced to suffer imprisonment of
one (1) year and to pay a fine of P60,000.00 without subsidiary imprisonment in case of insolvency. For
Criminal Case No. 128844, accused is hereby sentenced to suffer imprisonment of one (1) year and to
pay a fine of P60,000.00 without subsidiary imprisonment in case of insolvency. And for Criminal case
No. 93-128845, she is hereby sentenced to suffer imprisonment of one (1) year and to pay a fine
of P70,000.00 without subsidiary imprisonment in case of insolvency. No pronouncement as to civil

649
liability as the same was already paid. Since the last check covered by Check No. SRD043939 in the
amount of P50,000.00 was dishonored by the drawee bank, accused is hereby ordered to indemnify the
offended party the said amount of P50,000.00.

For violation of Article 315 of the Revised Penal Code, accused is found guilty for the crime of Estafa
defined and punished under Article 315 of the Revised Penal Code and in the absence of mitigating and
aggravating circumstances and applying the indeterminate sentence law, she is hereby sentenced to
suffer the penalty of twelve (12) years of prision mayor as minimum to twenty (20) years of reclusion
temporal as maximum. No pronouncement as to civil liability as the same was already paid. The
bailbond posted by herein accused for her provisional liberty ordered cancelled.

Dissatisfied and aggrieved, she filed before us, this Administrative Complaint anchored on the following
grounds:

1. That respondent judge has no jurisdiction over the criminal cases for Violation of B.P. Blg. 22 because
the imposable penalty therefor, which is imprisonment of not more than one (1) year or a fine not
exceeding P200,000.00 or both, is within the exclusive original jurisdiction of the Metropolitan Trial
Court (MTC) as provided for by Section 2 of Republic Act No. 7691, otherwise known as the Law on the
Expanded Jurisdiction of the MTC.

2. That the venue and time of the commission of the offenses charged were not established in violation
of the petitioners right due process.

3. That the original checks in question were never offered in evidence, hence, the decision is not
supported by evidence of corpus delicti.

4. That the penalty of twelve (12) years of prision mayor to twenty (20) years of reclusion temporal was
arbitrarily and unjustly imposed.

5. That the decision was antedated and promulgated in a rush in violation of procedural rules.

6. That the cancellation of petitioners bail is whimsical and arbitrary, constitutive of grave abuse of
discretion.

To refute these grounds for the complaint, respondent Judge submitted specific arguments in his
Supplemental Comment dated July 7, 1995, which could be summarized as follows:2cräläwvirtualibräry

(1) The alleged lack of jurisdiction is based on Section 2 of RA 7961 which was approved on March 25,
1994. This law, however, is inapplicable to complaints case because it did not provide for any retroactive
effect as to cover pending criminal cases. The retroactivity therein applies only to civil cases which did
not reach the pre-trial stage (Section 7, R.A. No. 7691).

The cases against complainant were filed on November 5, 1993, five (5) months before the approval of
the law on March 25, 1994. The law became effective 15 days after its complete publication in the
Official Gazette or in two (2) newspapers of general circulation (Section 8, R.A. No. (7691).

(2) Concerning the alleged defect of the Informations in not specifying the exact place and time of the
commission of the crime, a perusal of the Informations filed by the City Prosecutor shows that
the situs (Manila) and date (first week of March, 1993) of the commission of the offenses charged were
sufficiently alleged. The specific place in Manila and the precise time need not be stated, because they
are not essential elements of the offense charged. If the stand of the complaint is that the charges in the
Informations did not constitute offenses, her remedy would have been the timely filing of a motion to
quash before the trial and not to raise the issue collaterally after the decision had been rendered. After
the decision, the complaints remedy is to appeal, which she availed of by filing a notice of appeal.

(3) Regarding the prosecutions failure to offer in evidence the original checks issued by Gutierrez,
respondent Judge commented that the same is of no moment because while the original checks were
not presented anymore, there is an admission that accused Gutierrez got back the bouncing checks from

650
Ligaya Santos. This document was presented as an exhibit by the prosecution and was not denied by the
accused.

(4) Anent the charge that the penalty of twelve (12) years of Reclusion Temporal was arbitrarily and
unjustly imposed, the respondent argued that the penalty is based on the amount subject of the fraud
which is P370,000.00. Under Art 315 (1st par.), the penalty for estafa is prision correccional in its
maximum period to prision mayor in its minimum period if the amount is over P12,000.00 but does not
exceed P22,000.00. If there is an excess, for every P10,000.00 excess, there is an additional penalty of
one year. If computed totally, the excess would amount to 34.8 years. But under the same Article, the
maximum shall only be 20 years. In imposing the penalty of twelve (12) years of prision mayor as
minimum to twenty (20) years of reclusion temporal as maximum, respondent Judge merely exercised
his discretion as the penalty was within the range fixed by law.

(5) On the charge that respondents decision was antedated and promulgated in a rush, respondent that
this charge is unfair, unjust and baseless because it was made to appear wrongly that the respondent
Judge falsified his own decision and promulgated it without notice at all.

Accordingly to respondent, the records will show that as early as October 25, 1994, he already set the
promulgation of the decision at 8:30 A.M. on November 24, 1994. During the interim, the complainant
filed a Petition for Certiorari with the Court of Appeals (CA- G.R. SP No. 35373) questioning the Order
denying her Demurrer to Evidence, resulting in the cancellation of the promulgation set on November
24, 1994 which was reset to December 6, 1994. On said date, the decision was not promulgated because
of a Restraining Order issued by the Court of Appeals. Consequently, the promulgation was reset to
February 21, 1995, which was intransferable in character. But since, the respondent was still waiting for
developments in the Court of Appeals, the promulgation was reset for the fourth time to March 23,
1995, and then for the 5th time to April 18, 1995. Prior to April 18, 1995, the Court of Appeals rendered
its decision on the certiorari case, dismissing the same but allowing Gutierrez to present her evidence.

Pursuant to the decision of the Court of Appeals, the cases were set for reception of accuseds evidence
on three (3) dates: May 16, 23 and 25, 1995. On May 16, 1995, complainant asked for postponement.
On May 23, 1995, she asked for another postponement. On May 25, 1995, when the accused still failed
to present evidence, so as not to frustrate the wheels of justice and make a mockery of the solemn
judicial system, the respondent was left without any recourse but to exercise the coercive power of the
court by promulgating the decision which was supposed to have been promulgated way back December
6, 1994. To conform with the actual date of promulgation, the respondent Judge, who found no
justifiable basis to change his disposition of the case, simply crossed out the previous date, December 2,
1994, on the last page and superimposed the current date May 25, 1995.

Contrary therefore to the complainants charge, the promulgation of the Decision, in respondents view
was not precipitate. As a matter of fact, in obedience to the Court of Appeals, the promulgation was
deferred several times.

According to respondent there was no basis to change his mind, as the accused did not present
witnesses in her defense despite ample opportunities granted her. After her counsels manifestation in
court that if Fiscal Velasco were around, he would be presented to testify to the effect that it was before
him that the Affidavit of Desistance of Ligaya Santos was sworn to, and to which the public prosecutor
offered no objection and even admitted the tenor of the offer, there was nothing more to be done. This
was the only evidence offered by the accused. The public prosecutor moved for the submission of the
case, which was granted. Hence, according to the respondent, there was no reason to re-write the
whole decision where there was no reason for the respondent Judge to change his disposition. He added,
this was not antedating. There would be antedating, if the decision were made on May 25, 1995 but
backdated December 2, 1994. Neither was it pre-judgment, he said. Rather, it was a judgment
promulgated belatedly because of the Court of Appeals restraining order, which order eventually self-
destructed after the lapse of twenty (20) days. The accused was fully aware of the developments in the
cases, particularly the deferred promulgation of the decision for several months, said the respondent.

(6) Lastly, respondent averred that the cancellation of complainants bail bond was not whimsical nor
arbitrary. After the promulgation of the Decision convicting the accused for a penalty higher than six (6)

651
years, under Circular No. 12-94, the accused must be ordered committed in jail. The respondent could
not question the wisdom of the Circular, he was under obligation to implement it.

Considering carefully the complainants charges and the respondent Judges Comments thereon, We find
that except for one issue, the aforementioned charges have been sufficiently and satisfactorily refuted
by respondent. However, with respect to the prosecutions failure to present in evidence the original
checks subject of the informations filed against the accused Gutierrez, We are not in accord with
respondent Judges conclusion that same is inconsequential for her conviction.

For, it is not disputed that the five (5) checks subject of the five (5) information for Violation of B.P. Blg.
22 and the information for Estafa, are UCPB checks with Nos. SRD022496, SRD022513, PTU031796,
PTU031797, and PTU031798. It is also not disputed that all these five (5) checks were not presented and
formally offered in evidence. Rather, the evidence of the prosecution consisted of the replacement
check drawn against UCPB, namely Check No. SRD043939, the return deposit slip issued by the PNB
indicating that this replacement check was dishonored by the UCPB for the reason, stop payment, and
the testimony of the PNB representative, one Hernando Balmores, Jr. to the effect that this replacement
check was indeed returned by the UCPB for the reason aforestated. This was very explicit from the
Order of respondent Judge3 denying petitioners motion for reconsideration from the denial of her
Demurrer to Evidence to wit:

x x x. On the matter of the failure of the prosecution to mark in evidence the checks as alleged in the
information, the prosecuting fiscal that what was marked is a document executed by the accused to the
effect that said checks were in her possession and that the same were replaced with other checks. Now,
as to the matter of the representative of the bank not coming from the drawee bank, the Court
considers this testimony of the witness as only part of the evidence for the prosecution.

Undoubtedly, respondent Judge based the judgment of conviction, not on the checks themselves, as
these were not proffered in evidence, but on petitioners written statement, dated November 15, 1995,
which respondent judge considered as admission on the part of the petitioner that, she had indeed,
issued the bouncing checks subject of the informations but that she had replaced them with new checks.

Evidently, respondent Judge misconstrued and misapplied the rule with regard to admission in criminal
cases.

The issue of whether or not an admission in criminal cases is adequate to prove beyond reasonable
doubt the commission of the crime charged has been settled in the case of People vs. Solayao4 where
this Court made the following pronouncements:

xxx xxx. By its very nature, an admission is the mere acknowledgement of a fact or of circumstances
from which guilt may inferred, tending to incriminate the speaker, but not sufficient of itself to establish
his guilt. In other words, it is a statement by defendant of fact or facts pertinent to issues pending, in
connection with proof of other facts or circumstances, to prove guilt, but which is of itself, insufficient to
authorize conviction. From the above principles, this Court can infer that an admission in criminal cases
is insufficient to prove beyond reasonable doubt the commission of the crime
charged."5cräläwvirtualibräry

By itself, herein complainants letter dated November 15, 1995, which respondent Judge construed as an
admission that she indeed issued the checks subject of the Informations filed against her and that she
was replacing them with new ones, does not prove beyond reasonable doubt her culpability under B.P.
22 and Article 315 (2)(d) of the Revised Penal Code. To establish her guilt, it is indispensable that the
checks she issued for which she was subsequently charged, be offered in evidence because the
gravamen of the offense charged is the act of knowingly issuing a check with insufficient funds.6 Clearly,
it was error to convict complainant on the basis of her letter alone.

Nevertheless, despite this incorrect interpretation of a rule on evidence, we do not find the same as
sufficiently constitutive of the charges of gross ignorance of the law and of knowingly rendering an
unjust decision. Rather, it is at most an error in judgement, for which, as a general rule, he cannot be

652
held administratively liable. In this regard, we reiterate the prevailing rule in our jurisdiction as
established by current jurisprudence:

We have heretofore ruled that a judge may not be held administratively accountable for every
erroneous order or decision he renders. To unjustifiably hold otherwise, assuming that he has erred,
would be nothing short of harassment and would make his position doubly unbearable, for no one
called upon to try the facts or interpret the law in the process of administering justice can be infallible in
his judgment. The error must be gross or patent, malicious, deliberate or in evident bad faith. It is only in
this latter instance, when the judge acts fraudulently or with gross ignorance, that administrative
sanctions are called for as an imperative duty of this Court.

As a matter of public policy then, the acts of a judge in his official capacity are not subject to disciplinary
action, even though such acts are erroneous. Good faith and absence of malice, corrupt motives or
improper consideration are sufficient defenses in which a judge charged with ignorance of the law can
find refuge. xxx xxx.7cräläwvirtualibräry

Moreover, it must be stressed that in the case of De la Cruz vs. Concepcion8 this Court declared that:

Mere errors in the appreciation of evidence, unless so gross and patent as to produce an inference of
ignorance or bad faith, or of knowing rendition of an unjust decision, are irrelevant and immaterial in an
administrative proceeding against him. No one, called upon to try facts or interpret the law in the
process of administering justice, can be infallible in his judgment. All that is expected of him is that he
follow the rules prescribed to ensure a fair and impartial hearing, assess the different factors that
emerge therefrom and bear on the issues presented, and on the basis of the conclusions he finds
established, with only his conscience and knowledge of the law to guide him, adjudicate the case
accordingly.9cräläwvirtualibräry

In this case, the record is bereft of any evidence to conclusively show that the respondent Judges
actuations were tainted with malice and bad faith, hence the administrative charges against him must
fail.

WHEREFORE, the instant complaint for Serious Misconduct, Graft and Corruption, Knowingly Rendering
an Unjust Decision, Falsification of Public Document, and Gross Ignorance of the Law against respondent
Judge Rodolfo G. Palattao is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Regalado, Davide, Jr., Romero, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban,
Martinez, and Purisima, JJ., concur.

Bellosillo, J., No part due to relation to party.

Endnotes:

G.R. No. L-56294 May 20, 1991

SMITH BELL AND COMPANY (PHILIPPINES), INC. and TOKYO MARINE AND FIRE INSURANCE CO.,
INC., petitioners,
vs.
THE COURT OF APPEALS and CARLOS A. GO THONG AND CO., respondents.

Bito, Misa & Lozada for petitioners.

Rodriguez, Relova & Associates for private respondent.

FELICIANO, J.:

653
In the early morning of 3 May 1970—at exactly 0350 hours, on the approaches to the port of Manila
near Caballo Island, a collision took place between the M/V "Don Carlos," an inter-island vessel owned
and operated by private respondent Carlos A. Go Thong and Company ("Go Thong"), and the M/S "Yotai
Maru," a merchant vessel of Japanese registry. The "Don Carlos" was then sailing south bound leaving
the port of Manila for Cebu, while the "Yotai Maru" was approaching the port of Manila, coming in from
Kobe, Japan. The bow of the "Don Carlos" rammed the portside (left side) of the "Yotai Maru" inflicting a
three (3) cm. gaping hole on her portside near Hatch No. 3, through which seawater rushed in and
flooded that hatch and her bottom tanks, damaging all the cargo stowed therein.

The consignees of the damaged cargo got paid by their insurance companies. The insurance companies
in turn, having been subrogated to the interests of the consignees of the damaged cargo, commenced
actions against private respondent Go Thong for damages sustained by the various shipments in the
then Court of First Instance of Manila.

Two (2) cases were filed in the Court of First Instance of Manila. The first case, Civil Case No. 82567, was
commenced on 13 March 1971 by petitioner Smith Bell and Company (Philippines), Inc. and Sumitomo
Marine and Fire Insurance Company Ltd., against private respondent Go Thong, in Branch 3, which was
presided over by Judge Bernardo P. Fernandez. The second case, Civil Case No. 82556, was filed on 15
March 1971 by petitioners Smith Bell and Company (Philippines), Inc. and Tokyo Marine and Fire
Insurance Company, Inc. against private respondent Go Thong in Branch 4, which was presided over by
then Judge, later Associate Justice of this Court, Serafin R. Cuevas.

Civil Cases Nos. 82567 (Judge Fernandez) and 82556 (Judge Cuevas) were tried under the same issues
and evidence relating to the collision between the "Don Carlos" and the "Yotai Maru" the parties in both
cases having agreed that the evidence on the collision presented in one case would be simply adopted in
the other. In both cases, the Manila Court of First Instance held that the officers and crew of the "Don
Carlos" had been negligent that such negligence was the proximate cause of the collision and
accordingly held respondent Go Thong liable for damages to the plaintiff insurance companies. Judge
Fernandez awarded the insurance companies P19,889.79 with legal interest plus P3,000.00 as attorney's
fees; while Judge Cuevas awarded the plaintiff insurance companies on two (2) claims US $ 68,640.00 or
its equivalent in Philippine currency plus attorney's fees of P30,000.00, and P19,163.02 plus P5,000.00
as attorney's fees, respectively.

The decision of Judge Fernandez in Civil Case No. 82567 was appealed by respondent Go Thong to the
Court of Appeals, and the appeal was there docketed as C.A.-G.R. No. 61320-R. The decision of Judge
Cuevas in Civil Case No. 82556 was also appealed by Go Thong to the Court of Appeals, the appeal being
docketed as C.A.-G.R. No. 61206-R. Substantially identical assignments of errors were made by Go Thong
in the two (2) appealed cases before the Court of Appeals.

In C.A.-G.R. No. 61320-R, the Court of Appeals through Reyes, L.B., J., rendered a Decision on 8 August
1978 affirming the Decision of Judge Fernandez. Private respondent Go Thong moved for
reconsideration, without success. Go Thong then went to the Supreme Court on Petition for Review, the
Petition being docketed as G.R. No. L-48839 ("Carlos A. Go Thong and Company v. Smith Bell and
Company [Philippines], Inc., et al."). In its Resolution dated 6 December 1978, this Court, having
considered "the allegations, issues and arguments adduced in the Petition for Review on Certiorari, of
the Decision of the Court of Appeals as well as respondent's comment", denied the Petition for lack of
merit. Go Thong filed a Motion for Reconsideration; the Motion was denied by this Court on 24 January
1979.

In the other (Cuevas) case, C.A.-G.R. No. 61206-R, the Court of Appeals, on 26 November 1980 (or
almost two [2] years after the Decision of Reyes, L.B., J., in C.A.-G.R. No. 61320-R, had been affirmed by
the Supreme Court on Petition for Review) through Sison, P.V., J., reversed the Cuevas Decision and held
the officers of the "Yotai Maru" at fault in the collision with the "Don Carlos," and dismissed the
insurance companies' complaint. Herein petitioners asked for reconsideration, to no avail.

The insurance companies are now before us on Petition for Review on Certiorari, assailing the Decision
of Sison, P.V., J., in C.A.-G.R. No. 61206-R. Petitioners' principal contentions are:

654
 a. that the Sison Decision had disregarded the rule of res judicata;

b. that Sison P.V., J., was in serious and reversible error in accepting Go Thong's defense that the
question of fault on the part of the "Yotai Maru" had been settled by the compromise
agreement between the owner of the "Yotai Maru" and Go Thong as owner of the "Don Carlos;"
and

c. that Sison, P. V. J., was in serious and reversible error in holding that the "Yotai Maru" had
been negligent and at fault in the collision with the "Don Carlos."

The first contention of petitioners is that Sison, P. V. J. in rendering his questioned Decision, failed to
apply the rule of res judicata. Petitioners maintain that the Resolution of the Supreme Court dated 6
December 1978 in G.R. No. 48839 which dismissed Go Thong's Petition for Review of the Decision of
Reyes, L.B., J., in C.A.-G.R. No. 61320-R, had effectively settled the question of liability on the part of the
"Don Carlos." Under the doctrine of res judicata, petitioners contend, Sison, P. V. J. should have followed
the Reyes, L.B., J. Decision since the latter had been affirmed by the Supreme Court and had become
final and executory long before the Sison Decision was rendered.

Private respondent Go Thong, upon the other hand, argues that the Supreme Court, in rendering its
minute Resolution in G.R. No. L- 48839, had merely dismissed Go Thong's Petition for Review of the
Reyes, L.B., J. Decision for lack of merit but had not affirmed in toto that Decision. Private respondent, in
other words, purports to distinguish between denial of a Petition for Review for lack of merit and
affirmance of the Court of Appeals' Decision. Thus, Go Thong concludes, this Court did not hold that the
"Don Carlos" had been negligent in the collision.

Private respondent's argument must be rejected. That this Court denied Go Thong's Petition for Review
in a minute Resolution did not in any way diminish the legal significance of the denial so decreed by this
Court. The Supreme Court is not compelled to adopt a definite and stringent rule on how its judgment
shall be framed.1 It has long been settled that this Court has discretion to decide whether a "minute
resolution" should be used in lieu of a full-blown decision in any particular case and that a minute
Resolution of dismissal of a Petition for Review on certiorari constitutes an adjudication on the merits of
the controversy or subject matter of the Petition.2 It has been stressed by the Court that the grant of
due course to a Petition for Review is "not a matter of right, but of sound judicial discretion; and so
there is no need to fully explain the Court's denial. For one thing, the facts and law are already
mentioned in the Court of Appeals' opinion."3 A minute Resolution denying a Petition for Review of a
Decision of the Court of Appeals can only mean that the Supreme Court agrees with or adopts the
findings and conclusions of the Court of Appeals, in other words, that the Decision sought to be
reviewed and set aside is correct.4

Private respondent Go Thong argues also that the rule of res judicata cannot be invoked in the instant
case whether in respect of the Decision of Reyes, L.B., J. or in respect of the Resolution of the Supreme
Court in G.R. No. L-48839, for the reason that there was no identity of parties and no identity of cause of
action between C.A.-G.R. No. 61206-R and C.A.-G.R. No. 61320-R.

The parties in C.A.-G.R. No. 61320-R Where the decision of Judge Fernandez was affirmed, involved
Smith Bell and Company (Philippines), Inc., and Sumitomo Marine and Fire Insurance Co., Ltd. while the
petitioners in the instant case (plaintiffs below) are Smith Bell and Co. (Philippines), Inc. and Tokyo
Marine and Fire Insurance Co., Ltd. In other words, there was a common petitioner in the two (2) cases,
although the co-petitioner in one was an insurance company different from the insurance company co-
petitioner in the other case. It should be noted, moreover, that the co-petitioner in both cases was an
insurance company arid that both petitioners in the two (2) cases represented the same interest, i.e.,
the cargo owner's interest as against the hull interest or the interest of the shipowner. More
importantly, both cases had been brought against the same defendant, private respondent Go Thong,
the owner of the vessel "Don Carlos." In sum, C.A.-G.R. No. 61320R and C.A-G.R. No. 61206-R exhibited
substantial identity of parties.

655
It is conceded by petitioners that the subject matters of the two (2) suits were not identical, in the sense
that the cargo which had been damaged in the one case and for which indemnity was sought, was not
the very same cargo which had been damaged in the other case indemnity for which was also sought.
The cause of action was, however, the same in the two (2) cases, i.e., the same right of the cargo owners
to the safety and integrity of their cargo had been violated by the same casualty, the ramming of the
"Yotai Maru" by the "Don Carlos." The judgments in both cases were final judgments on the merits
rendered by the two (2) divisions of the Court of Appeals and by the Supreme Court, the jurisdiction of
which has not been questioned.

Under the circumstances, we believe that the absence of identity of subject matter, there being
substantial identity of parties and identity of cause of action, will not preclude the application of res
judicata.5

In Tingson v. Court of Appeals,6 the Court distinguished one from the other the two (2) concepts
embraced in the principle of res judicata, i.e., "bar by former judgment" and "conclusiveness of
judgment:"

There is no question that where as between the first case Where the judgment is rendered and
the second case where such judgment is invoked, there is identity of parties, subject-matter and
cause of action, the judgment on the merits in the first case constitutes an absolute bar to the
subsequent action not only as to every matter which was offered and received to sustain or
defeat the claim or demand, but also as to any other admissible matter which might have been
offered for that purpose and to all matters that could have been adjudged in that case. This is
designated as "bar by former judgment."

But where the second action between the same parties is upon a different claim or demand, the
judgment in the prior action operates as an estoppel only as to those matters in issue or points
controverted, upon the determination of which the finding or judgment was rendered. In fine,
the previous judgment is conclusive in the second case, only as those matters actually and
directly controverted and determined and not as to matters merely involved therein. This is the
rule on 'conclusiveness of judgment' embodied in subdivision (c) of Section 49 of Rule 39 of the
Revised Rules of' Court.7 (Citations omitted) (Emphases supplied)

In Lopez v. Reyes,8 the Court elaborated further the distinction between bar by former judgment which
bars the prosecution of a second action upon the same claim, demand or cause of action, and
conclusiveness of judgment which bars the relitigation of particular facts or issues in another litigation
between the same parties on a different claim or cause of action:

The doctrine of res judicata has two aspects. The first is the effect of a judgment as a bar to the
prosecution of a second action upon the same claim, demand or cause of action. The second
aspect is that it precludes the relitigation of a particular fact or issues in another action between
the same parties on a different claim or cause of action.

The general rule precluding the relitigation of material facts or questions which were in issue and
adjudicated in former action are commonly applied to all matters essentially connected with the
subject matter of the litigation. Thus, it extends to questions "necessarily involved in an issue,
and necessarily adjudicated, or necessarily implied in the final judgment, although no specific
finding may have been made in reference thereto, and although such matters were directly
referred to in the pleadings and were not actually or formally presented. Under this rule, if the
record of the former trial shows that the judgment could not have been rendered without
deciding the particular matter it will be considered as having settled that matter as to all future
actions between the parties, and if a judgment necessarily presupposes certain premises, they
are as conclusive as the judgment itself. Reasons for the rule are that a judgment is an
adjudication on all the matters which are essential to support it, and that every proposition
assumed or decided by the court leading up to the final conclusion and upon which such
conclusion is based is as effectually passed upon as the ultimate question which is finally
solved.9 (Citations omitted) (Emphases supplied)

656
In the case at bar, the issue of which vessel ("Don Carlos" or "Yotai Maru") had been negligent, or so
negligent as to have proximately caused the collision between them, was an issue that was actually,
directly and expressly raised, controverted and litigated in C.A.-G.R. No. 61320-R. Reyes, L.B., J., resolved
that issue in his Decision and held the "Don Carlos" to have been negligent rather than the "Yotai
Maru" and, as already noted, that Decision was affirmed by this Court in G.R. No. L-48839 in a
Resolution dated 6 December 1978. The Reyes Decision thus became final and executory approximately
two (2) years before the Sison Decision, which is assailed in the case at bar, was promulgated. Applying
the rule of conclusiveness of judgment, the question of which vessel had been negligent in the collision
between the two (2) vessels, had long been settled by this Court and could no longer be relitigated in
C.A.-G.R. No. 61206- R. Private respondent Go Thong was certainly bound by the ruling or judgment of
Reyes, L.B., J. and that of this Court. The Court of Appeals fell into clear and reversible error When it
disregarded the Decision of this Court affirming the Reyes Decision.10

Private respondent Go Thong also argues that a compromise agreement entered into between Sanyo
Shipping Company as owner of the "Yotai Maru" and Go Thong as owner of the "Don Carlos," under
which the former paid P268,000.00 to the latter, effectively settled that the "Yotai Maru" had been at
fault. This argument is wanting in both factual basis and legal substance. True it is that by virtue of the
compromise agreement, the owner of the "Yotai Maru" paid a sum of money to the owner of the "Don
Carlos." Nowhere, however, in the compromise agreement did the owner of the "Yotai Maru " admit or
concede that the "Yotai Maru" had been at fault in the collision. The familiar rule is that "an offer of
compromise is not an admission that anything is due, and is not admissible in evidence against the
person making the offer."11 A compromise is an agreement between two (2) or more persons who, in
order to forestall or put an end to a law suit, adjust their differences by mutual consent, an adjustment
which everyone of them prefers to the hope of gaining more, balanced by the danger of losing
more.12 An offer to compromise does not, in legal contemplation, involve an admission on the part of a
defendant that he is legally liable, nor on the part of a plaintiff that his claim or demand is groundless or
even doubtful, since the compromise is arrived at precisely with a view to avoiding further controversy
and saving the expenses of litigation.13 It is of the very nature of an offer of compromise that it is made
tentatively, hypothetically and in contemplation of mutual concessions.14 The above rule on
compromises is anchored on public policy of the most insistent and basic kind; that the incidence of
litigation should be reduced and its duration shortened to the maximum extent feasible.

The collision between the "Yotai Maru" and the "Don Carlos" spawned not only sets of litigations but
also administrative proceedings before the Board of Marine Inquiry ("BMI"). The collision was the
subject matter of an investigation by the BMI in BMI Case No. 228. On 12 July 1971, the BMI through
Commodore Leovegildo L. Gantioki, found both vessels to have been negligent in the collision.

Both parties moved for reconsideration of the BMI's decision. The Motions for Reconsideration were
resolved by the Philippine Coast Guard ("PCG") nine (9) years later, in an order dated 19 May 1980
issued by PCG Commandant, Commodore Simeon M. Alejandro. The dispositive portion of the PCG
decision read as follows:

Premises considered, the Decision dated July 12, 1971 is hereby reconsidered and amended
absolving the officers of "YOTAI MARU" from responsibility for the collision. This Headquarters
finds no reason to modify the penalties imposed upon the officers of Don Carlos. (Annex "C",
Reply, September 5, 1981).15

Go Thong filed a second Motion for Reconsideration; this was denied by the PCG in an order dated
September 1980.

Go Thong sought to appeal to the then Ministry of National Defense from the orders of the PCG by filing
with the PCG on 6 January 1981 a motion for a 30-day extension from 7 January 1981 within which to
submit its record on appeal. On 4 February 1981, Go Thong filed a second urgent motion for another
extension of thirty (30) days from 7 February 1981. On 12 March 1981, Go Thong filed a motion for a
final extension of time and filed its record on appeal on 17 March 1981. The PCG noted that Go Thong's
record on appeal was filed late, that is, seven (7) days after the last extension granted by the PCG had
expired. Nevertheless, on 1 July 1981 (after the Petition for Review on Certiorari in the case at bar had

657
been filed with this Court), the Ministry of Defense rendered a decision reversing and setting aside the
19 May 1980 decision of the PCG

The owners of the "Yotai Maru" then filed with the Office of the President a Motion for Reconsideration
of the Defense Ministry's decision. The Office of the President rendered a decision dated 17 April 1986
denying the Motion for Reconsideration. The decision of the Office of the President correctly recognized
that Go Thong had failed to appeal in a seasonable manner:

MV "DON CARLOS" filed her Notice of Appeal on January 5, 1981. However, the records also
show beyond peradventure of doubt that the PCG Commandant's decision of May 19, 1980, had
already become final and executory When MV "DON CARLOS" filed her Record on Appeal on
March 17, 1981, and When the motion for third extension was filed after the expiry date.

Under Paragraphs (c), (d), (e) and (f), Chapter XVI, of the Philippine Merchant Marine Rules and
Regulations, decisions of the PCG Commandant shall be final unless, within thirty (30) days after
receipt of a copy thereof, an appeal to the Minister of National Defense is filed and perfected by
the filing of a notice of appeal and a record on appeal. Such administrative regulation has the
force and effect of law, and the failure of MV "DON CARLOS" to comply therewith rendered the
PCG Commandant's decision on May 19, 1980, as final and executory, (Antique Sawmills, Inc. vs.
Zayco, 17 SCRA 316; Deslata vs. Executive Secretary, 19 SCRA 487; Macailing vs. Andrada, 31
SCRA 126.) (Annex "A", Go Thong's Manifestation and Motion for Early Resolution, November 24,
1986).16 (Emphases supplied)

Nonetheless, acting under the misapprehension that certain "supervening" events had taken place, the
Office of the President held that the Minister of National Defense could validly modify or alter the PCG
Commandant's decision:

However, the records likewise show that, on November 26, 1980, the Court of Appeals rendered
a decision in CA-G.R. No. 61206-R (Smith Bell & Co., Inc., et al. vs. Carlos A. Go Thong & Co.)
holding that the proximate cause of the collision between MV "DON CARLOS" AND MS "YOTAI
MARU" was the negligence, failure and error of judgment of the officers of MS "YOTAI MARU".
Earlier, or on February 27, 1976, the Court of First Instance of Cebu rendered a decision in Civil
Case No. R-11973 (Carlos A. Go Thong vs. San-yo Marine Co.) holding that MS "YOTAI MARU"
was solely responsible for the collision, which decision was upheld by the Court of Appeals.

The foregoing judicial pronouncements rendered after the finality of the PCG Commandant's
decision of May 19, 1980, were supervening causes or reasons that rendered the PCG
Commandant's decision as no longer enforceable and entitled MV "DON CARLOS" to request the
Minister of National Defense to modify or alter the questioned decision to harmonize the same
with justice and tile facts. (De la Costa vs. Cleofas, 67 Phil. 686; City of Bututan vs. Ortiz, 3 SCRA
659; Candelario vs. Canizares, 4 SCRA 738; Abellana vs. Dosdos, 13 SCRA 244). Under such
precise circumstances, the Minister of National Defense may validly modify or alter the PCG
commandant's decision. (Sec. 37, Act 4007; Secs. 79(c) and 550, Revised Administrative Code;
Province of Pangasinan vs. Secretary of Public Works and Communications, 30 SCRA 134;
Estrelia vs. Orendain, 37 SCRA 640).17 (Emphasis supplied)

The multiple misapprehensions under which the Office of the President labored, were the following:

It took account of the Decision of Sison, P.V., J. in C.A.-G.R. No. 61206-R, the very decision that is the
subject of review in the Petition at bar and therefore not final. At the same time, the Office of the
President either ignored or was unaware of the Reyes, L.B., J., Decision in C.A.-G.R. No 61320-R finding
the "Don Carlos" solely liable for the collision, and of the fact that that Decision had been affirmed by
the Supreme Court and had long ago become final and executory. A third misapprehension of the Office
of the President related to a decision in a Cebu Court of First Instance litigation which had been settled
by the compromise agreement between the Sanyo Marine Company and Go Thong. The Office of the
President mistakenly believed that the Cebu Court of First Instance had rendered a decision holding the
"Yotai Maru" solely responsible for the collision, When in truth the Cebu court had rendered a judgment

658
of dismissal on the basis of the compromise agreement. The Cebu decision was not, of course, appealed
to the Court of Appeals.

It thus appears that the decision of the Office of the President upholding the belated reversal by the
Ministry of National Defense of the PCG'S decision holding the "Don Carlos" solely liable for the collision,
is so deeply flawed as not to warrant any further examination. Upon the other hand, the basic decision
of the PCG holding the "Don Carlos" solely negligent in the collision remains in effect.

II

In their Petition for Review, petitioners assail the finding and conclusion of the Sison Decision, that the
"Yotai Maru" was negligent and at fault in the collision, rather than the "Don Carlos." In view of the
conclusions reached in Part I above, it may not be strictly necessary to deal with the issue of the
correctness of the Sison Decision in this respect. The Court considers, nonetheless, that in view of the
conflicting conclusions reached by Reyes, L.B., J., on the one hand, and Sison, P.V., J., on the other, and
since in affirming the Reyes Decision, the Court did not engage in a detailed written examination of the
question of which vessel had been negligent, and in view of the importance of the issues of admiralty
law involved, the Court should undertake a careful review of the record of the case at bar and discuss
those issues in extenso.

The decision of Judge Cuevas in Civil Case No. 82556 is marked by careful analysis of the evidence
concerning the collision. It is worth underscoring that the findings of fact of Judge Fernandez in Civil
Case No. 82567 (which was affirmed by the Court of Appeals in the Reyes Decision and by this Court in
G.R. No. L-48839) are just about identical with the findings of Judge Cuevas. Examining the facts as
found by Judge Cuevas, the Court believes that there are three (3) principal factors which are
constitutive of negligence on the part of the "Don Carlos," which negligence was the proximate cause of
the collision.

The first of these factors was the failure of the "Don Carlos" to comply with the requirements of Rule 18
(a) of the International Rules of the Road ("Rules")," which provides as follows

(a) When two power-driven vessels are meeting end on, or nearly end on, so as to involve risk of
collision, each shall alter her course to starboard, so that each may pass on the port side of the
other. This Rule only applies to cases where vessels are meeting end on or nearly end on, in such
a manner as to involve risk of collision, and does not apply to two vessels which must, if both
keep on their respective course, pass clear of each other. The only cases to which it does apply
are when each of two vessels is end on, or nearly end on, to the other; in other words, to cases
in which, by day, each vessel sees the masts of the other in a line or nearly in a line with her
own; and by night to cases in which each vessel is in such a position as to see both the sidelights
of the other. It does not apply, by day, to cases in which a vessel sees another ahead crossing
her own course; or, by night, to cases where the red light of one vessel is opposed to the red
light of the other or where the green light of one vessel is opposed to the green light of the
other or where a red light without a green light or a green light without a red light is seen ahead,
or Where both green and red lights are seen anywhere but ahead. (Emphasis supplied)

The evidence on this factor was summarized by Judge Cuevas in the following manner:

Plaintiff's and defendant's evidence seem to agree that each vessel made a visual sighting of
each other ten minute before the collision which occurred at 0350. German's version of the
incident that followed, was that "Don Carlos" was proceeding directly to [a] meeting [on an]
"end-on or nearly end-on situation" (Exh. S, page 8). He also testified that "Yotai Maru's'
headlights were "nearly in line at 0340 A.M." (t.s.n., June 6, 1974) clearly indicating that both
vessels were sailing on exactly opposite paths (t.s.n. June 6, 1974, page 56). Rule 18 (a) of the
International Rules of the Road provides as follows:

xxx xxx xxx

659
And yet German altered "Don Carlos" course by five degrees to the left at 0343 hours instead of to the
right (t.s.n. June 6, 1974, pages 4445) which maneuver was the error that caused the collision in question.
Why German did so is likewise explained by the evidence on record. "Don Carlos" was overtaking another
vessel, the "Don Francisco", and was then at the starboard (right side) of the aforesaid vessel at 3:40 a.m.
It was in the process of overtaking "Don Francisco" that "Don Carlos' was finally brought into a situation
where he was meeting end-on or nearly end-on "Yotai Maru, thus involving risk of collision. Hence,
German in his testimony before the Board of Marine inquiry stated:

Atty. Chung:

You said in answer to the cross-examination that you took a change of course to the left. Why
did you not take a course to the right instead?

German:

I did not take any course to the right because the other vessel was in my mind at the starboard
side following me. Besides, I don't want to get risk of the Caballo Island (Exh. 2, pages 209 and
210).19 (Emphasis supplied)

For her part, the "Yotai Maru" did comply with its obligations under Rule 18 (a). As the "Yotai
Maru" found herself on an "end-on" or a "nearly end-on" situation vis-a-vis the "Don Carlos, " and as the
distance between them was rapidly shrinking, the "Yotai Maru" turned starboard (to its right) and at the
same time gave the required signal consisting of one short horn blast. The "Don Carlos" turned to
portside (to its left), instead of turning to starboard as demanded by Rule 18 (a). The "Don Carlos" also
violated Rule 28 (c) for it failed to give the required signal of two (2) short horn blasts meaning "I am
altering my course to port." When the "Yotai Maru" saw that the "Don Carlos" was turning to port, the
master of the "Yotai Maru" ordered the vessel turned "hard starboard" at 3:45 a.m. and stopped her
engines; at about 3:46 a.m. the "Yotai Maru" went "full astern engine."20 The collision occurred at
exactly 3:50 a.m.

The second circumstance constitutive of negligence on the part of the "Don Carlos" was its failure to
have on board that night a "proper look-out" as required by Rule I (B) Under Rule 29 of the same set of
Rules, all consequences arising from the failure of the "Don Carlos" to keep a "proper look-out" must be
borne by the "Don Carlos." Judge Cuevas' summary of the evidence said:

The evidence on record likewise discloses very convincingly that "Don Carlos" did not have
"look-out" whose sole and only duty is only to act as Such. . . .21

A "proper look-out" is one who has been trained as such and who is given no other duty save to act as a
look-out and who is stationed where he can see and hear best and maintain good communication with
the officer in charge of the vessel, and who must, of course, be vigilant. Judge Cuevas wrote:

The "look-out" should have no other duty to perform. (Chamberlain v. Ward, 21, N.O.W. 62, U.S.
548, 571). He has only one duty, that which its name implies—to keep "look-out". So a deckhand
who has other duties, is not a proper "look-out" (Brooklyn Perry Co. v. U.S., 122, Fed. 696). The
navigating officer is not a sufficient "look-out" (Larcen B. Myrtle, 44 Fed. 779)—Griffin on
Collision, pages 277-278). Neither the captain nor the [helmsman] in the pilothouse can be
considered to be a "look-out" within the meaning of the maritime law. Nor should he be
stationed in the bridge. He should be as near as practicable to the surface of the water so as to
be able to see low-lying lights (Griffin on Collision, page 273).

On the strength of the foregoing authorities, which do not appear to be disputed even by the
defendant, it is hardly probable that neither German or Leo Enriquez may qualify as "look-out"
in the real sense of the word.22 (Emphasis supplied)

In the case at bar, the failure of the "Don Carlos" to recognize in a timely manner the risk of collision
with the "Yotai Maru" coming in from the opposite direction, was at least in part due to the failure of
the "Don Carlos" to maintain a proper look-out.

660
The third factor constitutive of negligence on the part of the "Don Carlos" relates to the fact that Second
Mate Benito German was, immediately before and during the collision, in command of the "Don
Carlos." Judge Cuevas summed up the evidence on this point in the following manner:

The evidence on record clearly discloses that "Don Carlos" was, at the time of the collision and
immediately prior thereto, under the command of Benito German, a second mate although its
captain, Captain Rivera, was very much in the said vessel at the time. The defendant's evidence
appears bereft of any explanation as to why second mate German was at the helm of the
aforesaid vessel when Captain Rivera did not appear to be under any disability at the time. In
this connection, Article [633] of the Code of Commerce provides:

Art. [633] — The second mate shall take command of the vessel in case of the inability
or disqualification of the captain and sailing mate, assuming, in such case, their powers
and liability.

The fact that second mate German was allowed to be in command of "Don Carlos" and not the
chief or the sailing mate in the absence of Captain Rivera, gives rise to no other conclusion
except that said vessel [had] no chief mate. Otherwise, the defense evidence should have at
least explained why it was German, only a second mate, who was at the helm of the vessel "Don
Carlos" at the time of the fatal collision.

But that is not all. Worst still, aside from German's being only a second mate, is his apparent lack
of sufficient knowledge of the basic and generally established rules of navigation. For instance,
he appeared unaware of the necessity of employing a "look- out" (t.s.n. June 6, 1974, page 27)
which is manifest even in his testimony before the Board of Marine Inquiry on the same subject
(Exh. 2, page 209). There is, therefore, every reasonable ground to believe that his inability to
grasp actual situation and the implication brought about by inadequacy of experience and
technical know-how was mainly responsible and decidedly accounted for the collision of the
vessels involved in this case.. . .23 (Emphasis supplied)

Second Mate German simply did not have the level of experience, judgment and skill essential for
recognizing and coping with the risk of collision as it presented itself that early morning when the "Don
Carlos," running at maximum speed and having just overtaken the "Don Francisco" then approximately
one mile behind to the starboard side of the "Don Carlos," found itself head-on or nearly head on vis-a-
vis the "Yotai Maru. " It is essential to point out that this situation was created by the "Don Carlos" itself.

The Court of Appeals in C.A.-G.R. No. 61206-R did not make any findings of fact which contradicted the
findings of fact made by Judge Cuevas. What Sison, P.V., J. actually did was to disregard all the facts
found by Judge Cuevas, and discussed above and, astonishingly, found a duty on the "Yotai
Maru" alone to avoid collision with and to give way to the "Don Carlos ". Sison, P.V., J., wrote:

At a distance of eight (8) miles and with ten (10) minutes before the impact, [Katoh] and
Chonabayashi had ample time to adopt effective precautionary measures to steer away from
the Philippine vessel, particularly because both [Katoh] and Chonabayashi also deposed that at
the time they had first eyesight of the "Don Carlos" there was still "no danger at all" of a
collision.1âwphi1 Having sighted the "Don Carlos" at a comparatively safe distance—"no danger
at all" of a collision—the Japanese ship should have observed with the highest diligence the
course and movements of the Philippine interisland vessel as to enable the former to adopt such
precautions as will necessarily present a collision, or give way, and in case of a collision, the
former is prima facie at fault. In G. Urrutia & Co. vs. Baco River Plantation Co., 26 Phil. 632, the
Supreme Court held:

Nautical rules require that where a steamship and sailing vessel are approaching each
other from opposite directions, or on intersecting lines, the steamship, from the
moment the sailing vessel is seen, shall watch with the highest diligence her course and
movements so as to enable it to adopt such timely means of precaution as will
necessarily prevent the two boats from coming in contact.' (Underscoring in the original)

661
 At 3:44 p.m., or 4 minutes after first sighting the "Don Carlos", or 6 minutes before contact time,
Chonabayashi revealed that the "Yotai Maru" gave a one-blast whistle to inform the Philippine
vessel that the Japanese ship was turning to starboard or to the right and that there was no
blast or a proper signal from the "Don Carlos" (pp. 67-68. Deposition of Chonabayashi, List of
Exhibits). The absence of a reply signal from the "Don Carlos" placed the "Yotai Maru" in a
situation of doubt as to the course the "Don Carlos" would take. Such being the case, it was the
duty of the Japanese officers "to stop, reverse or come to a standstill until the course of the "Don
Carlos" has been determined and the risk of a collision removed (The Sabine, 21 F (2d) 121, 124,
cited in Standard Vacuum, etc. vs. Cebu Stevedoring, etc., 5 C.A.R. 2d 853, 861-
862).. . . .24 (Emphasis supplied)

The Court is unable to agree with the view thus taken by Sison, P.V., J. By imposing an exclusive
obligation upon one of the vessels, the "Yotai Maru, " to avoid the collision, the Court of Appeals not
only chose to overlook all the above facts constitutive of negligence on the part of the "Don Carlos;" it
also in effect used the very negligence on the part of the "Don Carlos" to absolve it from responsibility
and to shift that responsibility exclusively onto the "Yotai Maru" the vessel which had observed carefully
the mandate of Rule 18 (a). Moreover, G. Urrutia and Company v. Baco River Plantation
Company25 invoked by the Court of Appeals seems simply inappropriate and inapplicable. For the
collision in the Urrutia case was between a sailing vessel, on the one hand, and a power-driven vessel,
on the other; the Rules, of course, imposed a special duty on the power-driven vessel to watch the
movements of a sailing vessel, the latter being necessarily much slower and much less maneuverable
than the power-driven one. In the case at bar, both the "Don Carlos" and the "Yotai Maru" were power-
driven and both were equipped with radar; the maximum speed of the "Yotai Maru" was thirteen (13)
knots while that of the "Don Carlos" was eleven (11) knots. Moreover, as already noted, the "Yotai
Maru" precisely took last minute measures to avert collision as it saw the "Don Carlos" turning to
portside: the "Yotai Maru" turned "hard starboard" and stopped its engines and then put its engines
"full astern."

Thus, the Court agrees with Judge Cuevas (just as it had agreed with Reyes, L.B., J.), with Judge
Fernandez and Nocon, J.,26 that the "Don Carlos" had been negligent and that its negligence was the sole
proximate cause of the collision and of the resulting damages.

FOR ALL THE FOREGOING, the Decision of the Court of Appeals dated 26 November 1980 in C.A.-G.R. No.
61206-R is hereby REVERSED and SET ASIDE. The decision of the trial court dated 22 September 1975 is
hereby REINSTATED and AFFIRMED in its entirety. Costs against private respondent.

SO ORDERED.

Fernan C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin, Sarmiento,
Griño-Aquino, Medialdea, Regalado and Davide, Jr., JJ., concur.

G.R. Nos. 136870-72 January 28, 2003

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
WILSON SALVADOR y GAGARIN, accused-appellant.

PUNO, J.:

Before us is an appeal from the decision of the Regional Trial Court of Cauayan, Isabela, Branch 19, in
Criminal Case No. 19-1191 promulgated on October 20, 1998, finding accused-appellant Wilson Salvador
y Gagarin guilty beyond reasonable doubt of the crime of rape.1

The Information in Crim. Case No. 19-1191 states:

"That on or about the 30th day of August, 1995, in the municipality of San Mateo, province of
Isabela, Philippines, and within the jurisdiction of this Honorable Court, the said accused, by
means of force and intimidation, and with lewd designs, did then and there, willfully, unlawfully

662
 and feloniously, lay (sic) with; and have carnal knowledge with (sic) one Myra S. Aucena, against
her will and consent.

CONTRARY TO LAW."2

Accused pleaded not guilty upon arraignment and underwent trial.

It appears from the evidence that private complainant, Myra S. Aucena, is the niece of the accused,
being the daughter of his older sister, Lydia Salvador. She was two years of age when her mother died in
1979. Her paternal grandparents brought her up in Manaoag, Pangasinan where she stayed until she
finished her secondary education. After graduation from high school, the brothers of her late mother,
namely, Maximo, Wenceslao and Nestor, all surnamed Salvador, offered to send her to college. It was
agreed that she stay with her maternal grandmother, Priscila Salvador, at the latter's residence at
Salinungan East, San Mateo, Isabela to facilitate her studies.3 She transferred there around March
1995. 4

Priscila's house consists of two stories. Priscila slept at the ground floor, while accused Wilson, Priscila's
son and Myra's uncle, slept at the second floor. The second floor has only one room but is divided into
two sleeping quarters by a collapsible divider. Myra used to sleep with her grandmother Priscila.
However, in August 1995, she was advised by Priscila, who was then sick; to sleep upstairs to avoid
being contaminated by her illness. Accused Wilson slept on a bed at one side while Myra slept on the
bamboo floor at the other side of the divider.5

Myra testified that in the early evening of August 30, 1995, she was awakened by a heavy weight on top
of her. She recognized the person to be accused Wilson, her uncle. She froze because the accused was
poking a knife at her right neck, at the same time telling her "saan ka nga agriyao ta no agriyao ka
patayin ka' (Don't shout or else I will kill you)."6 Accused kissed all parts of her body while she was still
dressed. Thereafter, still holding the knife with his left hand, accused removed her shirt, short pants,
panty and bra with his right hand. He mashed her breasts, forcibly separated her two legs and
succeeded in having sexual intercourse with her. Having been seized with fear, she was not able to do
anything but cry after the accused was done with his bastardly act. This abuse was repeated on several
occasions for over a year during her stay with her grandmother and the accused.7

Myra stopped living in the house of her grandmother when another uncle, Nestor Salvador, took her
and brought her to his house in Calamagui, Ilagan, Isabela on January 19, 1997. On February 24, 1997,
her father, Sisenando Aucena, fetched her from Nestor's house because his younger son, Luther John,
suspected that something was wrong with her. While there, Sisenando noticed her pregnancy. Myra
thus had to reveal the ordeal she underwent in the hands of the accused. She gave birth to Cherry May
on June 20, 1997 as a result of the forced coitus.

Sisenando Aucena, the father of Myra, testified as to the efforts of Dolores Ramones, Panting Manuel,
Sangguniang member Pulig, Sangguniang member Fermin, Nestor Salvador, Santiago Manguba, Maura
Salvador, Angelito Manguba and Kagawad Dominador Bonalos, relatives of the accused, to seek a
compromise agreement or settlement of the case of the accused. They first offered to give the land
supposed to be inherited by his (Sisenando's) children. They also offered to give the land that was
supposed to be inherited by Wilson Salvador. However, the relatives did not comply with their promise
so the settlement did not materialize.

Accused-appellant denied the rape charge and alleged that it was Myra who seduced him and that what
occurred was consented sexual intercourse as they shared a romantic relationship. He claimed that it
was Myra who first came to his bed to sleep with him in the month of July 1995. He scolded her but
eventually, they developed mutual love for each other and thus had numerous consented sex. He also
denied knowledge of the offer of compromise of his relatives. He allegedly did not authorize them to
enter into any settlement with Sisenando.8

As aforestated, the trial court rendered a joint decision convicting the accused on one count of rape
committed on August 30, 1995, and acquitting him from the two other counts committed on September
6, 1995 and October 4, 1996, the dispositive portion of which states:

663
 "WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered:

1. Finding the accused guilty beyond reasonable doubt of the crime of rape committed on 30
August 1995 and charged in Criminal Case No. 19-1191, and sentencing him to suffer the penalty
of reclusion perpetua, and to indemnify the offended party, Myra S. Aucena in the amount of
P200,000.00; and

2. For failure of the prosecution to prove the guilt of the accused beyond reasonable doubt,
acquitting him from the offense charged in Criminal Cases Nos. 19-1189 and 1190.

Costs against the accused.

SO ORDERED."9

From this decision, the accused-appellant interposed the present appeal, raising the following
assignment of errors:

"I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF RAPE
SINCE NO FORCE WAS EMPLOYED IN THE COMMISSION OF THE CRIME.

II.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE THE FAILURE OF
THE PROSECUTION TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT."10

The appeal has no merit.

At the time the acts were committed by the accused, rape was punished under Article 335, paragraph 1
of the Revised Penal Code. It can be committed "by having carnal knowledge of a woman under any of
the following circumstances:

a.) Through force, threat or intimidation;

xxx xxx xxx"

The gravamen of rape is carnal knowledge of a woman against her will or without her consent.11

Appellant argues that the trial court erred when it failed to appreciate the fact that the victim did not
offer any resistance against the alleged sexual assault made by the accused-appellant. He contends that
during the act, the victim never shouted for help nor created any commotion that could have aroused
her grandmother into coming to her aid. These circumstances, according to him, "show that no force
was employed by the accused" and that what happened "was the product of two (2) persons freely and
voluntarily consenting to each other's advances."12

We disagree. The evidence is clear that accused forced Myra to have sexual intercourse. She testified:

"Atty. Garcia:

Q: While the accused was having sexual intercourse with you, did you not resist him?

A: Yes, sir, I resisted.

Q: How did you resist your uncle?

A: I boxed him, sir.

664
 Q: With your resistance, was your uncle successful in having sexual intercourse with you?

A: Yes, sir."13

It is also shown that the victim was cowed into submission because of the knife poked at her right neck
by the accused. She was also warned: "saan ka nga agriyao ta no agriyao ka patayin ka," translated:
"Don't shout or else I will kill you."14

Furthermore, the fact that the accused is the uncle of the victim bolsters the presence of intimidation. It
was found by the trial court that the victim looked upon the accused as her father.15 For a young lass
from the province, this circumstance is sufficient to shut her up and give in to the whims of the accused.

The accused also contends that the delay of two (2) years in reporting the acts charged "rendered the
truth of her charge doubtful."16

Again, we do not agree. The silence of the victim for a period of time does not necessarily indicate a
baseless and fabricated charge.17 This Court has often ruled that delay in reporting rape incidents in the
face of threats of physical violence cannot be taken against the victim.18 Rape victims prefer to suffer in
private than reveal their ordeal to the public and suffer the humiliation and simultaneously risk the
rapists' making good the threat to hurt them.19 Myra explained why she opted to suffer in silence, viz:

"Atty. Garcia:

Q: Those things did to you by your uncle, did you report them to any authorities?

A: Because I was afraid then, sir, I did not report.

Q: Why were you afraid?

A: Because of his threat to kill me, sir."20

"Atty. Labog:

Q: You felt sorry for what happened to you the first time, August 30, 1995?

A: Yes, sir.

Q: But you did not tell this experience you had on August 30, 1995 to your lola?

A: No sir, because I was afraid.

Q: You were afraid of the accused?

A: Yes, sir.

xxx xxx xxx

Atty. Garcia:

Q: You said that you did not tell your lola (about) what happened to you on the night of
August 30, 1995, why were you afraid?

A: Because of the threat of my uncle that he is going to kill me and my brother, sir.

Q: When did he make the threat?

A: After having sexual intercourse with me, sir."21

665
The defense of consensual intercourse merits no consideration. The accused has the burden of
establishing by convincing proof his affirmative defense of an alleged romantic relationship.22 The
"sweetheart theory" hardly deserves any attention when an accused does not present any evidence,
such as love letters, gifts, pictures and the like to show that indeed, he and the private complainant
were sweethearts.23 In the case at bar, the accused was unable to present even an iota of proof to
substantiate his claim that he and the complainant are sweethearts. This was brought out in his cross-
examination:

"Atty. Garcia:

Q: You said that you have this relationship as sweethearts to (sic) the complainant Myra
Aucena, is it not?

A: Yes, sir.

Q: Before you became sweethearts, you courted her, of course?

A: Our relationship just developed, sir.

Q: Yes, but before that relationship developed, of course you courted her?

A: I did not court her, it was (sic) just developed, sir.

Q: When did you start to have this sweethearts (sic) relationship with Myra?

A: Last week of July 1995, sir.

xxx xxx xxx

Q: At (sic) this duration of time from July 1995 to January 1997, you as sweethearts with
Myra, do you have momentous remembrance given by each other in consideration of being a
(sic) sweethearts?

A: None, sir.

Q: But you know of course the birthday of Myra?

A: Yes, sir, January 17.

Q: Likewise you know the year?

A: January 17, but I cannot remember the year, sir.

Q: So that (during) the duration of your sweethearts (sic) with Myra from July 1995 to
January 1997, you celebrated her birthday 1996 and 1997 when she was with you?

A: Yes, sir.

Q: And during that this (sic) occasion as sweethearts, do you give (a) gift to Myra?

A: None, sir.

Q: How about Myra, does Myra knows (sic) your birthday?

A: Yes, sir.

Q: And when you celebrated your birthday, Myra gave you (a) gift as a token of his (sic) love
to you?

666
 A: None, sir.

xxx xxx xxx

Q: And of course, as shown (sic) of your love and devotion with (sic) Myra, you even gave
material love, money and other gifts?

A: Yes, sir.

Q: But Myra in return never gave you any gift?

A: None, sir.

Q: Even during (C)hristmas and (V)alentine's (D)ay, she never gave you any greeting card or
any gift, is it not (sic)?

A: None, sir.

Q: During the duration of your sweethearts (sic) relationship from July 1995 to January 1997,
she did not give you any love letter expressing her love to you?

A: None, sir."24

We likewise agree with the argument of the Office of the Solicitor General that even if the trial court
acquitted the accused of the subsequent acts of sexual intercourse on the ground that these were
already consensual, the ensuing voluntary relationship does not cure the force and intimidation which
appellant employed in the initial act constituting one charge for rape.25 Well-entrenched is the principle
that each act of rape is considered separate and distinct from one another.26 Thus, even if the
subsequent acts of sexual intercourse between the accused and the complainant were to be considered
as consensual, still this does not negate the fact that their first sexual encounter due to force,
constitutes a ground for one charge of rape.

Lastly, the offer of settlement made by the relatives of the accused to Myra's father further militates
against the innocence of the accused. Indeed, an offer of compromise by the accused in criminal cases,
except those involving quasi-offenses or those allowed by law to be compromised, may be received in
evidence as an implied admission of guilt.27

Undoubtedly, rape is not a quasi-offense. Thus, the testimony of Sisenando, complainant's father, that
the relatives of the accused made two offers to settle with the knowledge of the accused, should be
taken as an implied admission of the guilt of the accused, thus:

"Atty. Garcia:

Q: Why did this group come to you on November 22, 1997?

A: They went to our house in order to settle the fault of Wilson Salvador.

Q: And you said they came to offer settlement, what did they offer?

A: The first offer is that they are going to give the land supposed to be inherited by my
children.

Q: And you said that is the first offer, was there any other offer?

A: The second offer is that the land supposed to be inherited by Wilson Salvador be offered
as payment.

667
 Q: Did you come to know if these persons were authorized by Wilson Salvador to talk to
you?

A: Before we had a conversation, I asked first if Wilson Salvador and his mother knows (sic)
about their offer and they said yes.

Q: With whom did you inquire (about) that information among the persons who came to
you?

A: Nelson Salvador, sir."28

With regard the monetary award, law and justice dictate that upon the finding of the fact of rape, the
award of civil indemnity ex delicto becomes mandatory. However, we find the trial court's award of
P200,000.00 as excessive. Consonant with decided cases, we reduce the civil indemnity to
P50,000.00.29 We also grant P50,000.00 as moral damages, without need of proof,30 and P25,000.00 as
exemplary damages, to discourage abuse of young girls, especially by their relatives.31

IN VIEW WHEREOF, the decision of the Regional Trial Court of Cauayan, Isabela, Branch 19, in Criminal
Case No. 19-1191, finding accused-appellant Wilson Salvador y Gagarin guilty beyond reasonable doubt
of the crime of rape committed on August 30, 1995, and sentencing him to suffer the penalty of
reclusion perpetua is AFFIRMED, with modification that the accused is ordered to pay the victim civil
indemnity in the amount of P50,000.00, moral damages of P50,000.00, and exemplary damages of
P25,000.00.

SO ORDERED.

Panganiban, Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ ., concur.

[G.R. NO. 146111. February 23, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. ROLENDO GAUDIA @ LENDOY or DODO, Appellant.

DECISION

PUNO, J.:

There can be no greater violation of a persons right to feel safe and secure than the crime of rape. When
one commits such a horrible act on another, he degrades not only that persons body; more importantly,
he defiles that persons mind. When the victim is a little child, the act and the perpetrator himself
assume a bestiality beyond the comprehension of normal human beings. Yet, the law must apply equally
upon saints and sinners alike, even to the most salacious ruffian.

Before us is the Decision1 dated 10 July 2000 of Branch 19 of the Regional Trial Court of Digos, Davao del
Sur, finding appellant Rolendo Gaudia2 guilty of the crime of rape, meting upon him the penalty of death,
and ordering him to pay to private complainant Remelyn Loyola the amounts of fifty thousand pesos
(P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and costs of
suit.

The Information filed against the accused-appellant reads as follows:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

That on or about March 24, 1997 at about 6:30 oclock in the evening, in the Municipality of Hagonoy,
Province of Davao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused, by means of force and intimidation, did, then and there willfully, unlawfully and
feloniously have carnal knowledge with Remelyn Loyola, a minor, against her will to her damage and
prejudice.

The prosecution presented Remelyns mother, Amalia Loyola, as its primary witness. Amalia testified that
on 24 March 1997, she left her two children Remelyn (3 1/2 years old) 3 and Kimberly (1 year old) 4 at

668
their house in Clib, Hagonoy, Davao del Sur to gather pigs food at Bulatukan. At the time, her husband
was working in Tulunan, South Cotabato. At about 4:00 in the afternoon, Amalia returned home and
could not find Remelyn. She went to fetch water and proceeded to a neighbor to ask about the
whereabouts of Remelyn. Nobody could provide her any information. On her way home, she shouted
and called out Remelyns name. At about 6:00 p.m., Amalia heard Remelyn calling out to her, Ma, I am
here, from a grove of ipil-ipil trees.5 Amalia rushed toward the place, but was met by Remelyn at the
mango trees, some thirty (30) meters from their house.6 She found Remelyn crying,
naked, nagbakaang (walking with her legs spread apart) and with fresh and dried blood on her body.Ipil-
ipil leaves clung to her forehead. Blood was oozing from her private organ. Amalia brought Remelyn
home and washed her. Upon closer inspection, she found a whitish mucus-like substance coming from
Remelyns private organ.7 ςrνll

The following day, 2 March 1997, Amalia brought Remelyn to the house of a certain Tiya Coring, a quack
doctor, for treatment. Among the people present in the premises were the relatives and parents of the
appellant.8 The quack doctor found both dried blood and fresh blood oozing in Remelyns vagina, and
told Amalia, Hoy! Amalia, your daughter was being (sic) raped.9 At about 10:00 a.m., Tulon Mik, a
neighbor, came and informed Amalia that he had seen the appellant pass by her house and take
Remelyn.10 At this point, the parents of appellant told Amalia, Mal, let us talk about this matter, we will
just settle this, we are willing to pay the amount of P15,000.00, for the crime that my son
committed.11 Police officers came and brought Amalia, Remelyn and two barangay officials
(kagawads) to the police precinct of Hagonoy for investigation.Amalias statement was taken.12 ςrνll

On 25 March 1997, Amalia brought Remelyn to the Hagonoy Health Center in Davao del Sur. Dr. Patricio
Hernane, the municipal health officer,13 conducted a genital examination of Remelyn, and made the
following findings:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

GENITAL EXAMINATION:ςηαñrοblεš νιr†υαl lαω lιbrαrÿ

Absence of Pubic Hair (Tanner Stage I) .No contusions are noted on the external genitalia. Dried blood
are (sic) noted on the labia minora. Fresh hymenal lacerations are noted at 12, 3, 6, 10 oclock (sic) are
noted with fresh vaginal laceration noted at the posterior commissure but not extending to the
perineum. No lacerations were noted at the anal opening.

Speculum examination is not done because even exposure of the labia minora make the child cry. (sic)

CONCLUSION: Physical virginity lost.14 ςrνll

The doctor opined that the lacerations could have been caused by the insertion of a foreign object, such
as the penis of a man.15 ςrνll

On 26 March 1997, Amalia executed her affidavit complaint.16 Amalia stated therein that Remelyn had
told her Buang Lendoy iya kong lugos.17 (Meaning crazy lendoy he forced me in the Visayan dialect.)
Amalia confirmed in her testimony that two weeks after the incident, Remelyn told her, Ma, Lendoy is
crazy, she (sic) brought me to the ipil-ipil trees.18 ςrνll

The prosecution also presented Tulon Mik, Remelyns neighbor and a barangay kagawad in their area.
Mik testified that on 24 March 1997, at about 4:00 p.m., he and his wife were on their way home after
registering at the COMELEC office. They were in a hurry as their child was running a fever. Mik saw
appellant carrying a small girl in his arms.19 He identified the little girl as Remelyn Loyola, daughter of
Amalia Loyola. Appellant and Remelyn were on their way toward the ipil-ipil trees.20 ςrνll

The next morning, 25 March 1997, at about 7:00 a.m., a neighbor informed Mik that Remelyn had been
raped. He proceeded to the house of the quack doctor where Amalia brought Remelyn for examination.
Amalia confirmed to Mik that Remelyn had been raped. Mik told Amalia that appellant committed the
crime. Mik then informed Barangay Official Rodrigo Malud21 and the other tanods of the incident. They
were instructed to locate the appellant.They passed to the police the information that appellant was in
Barangay Mahayahay. The policemen came and took appellant for investigation.22 ςrνll

669
The appellant, ROLENDO GAUDIA, interposed the defense of alibi. He averred that on 24 March 1997, at
about 4:00 p.m., he went to the Barangay Center to register at the COMELEC for the National Elections.
With him was Totong Loyola, the brother-in-law of Amalia Loyola. They finished at 5:00 p.m., left and
repaired to the house of Catalina Cabano, appellants aunt, to ask for vinegar for their kinilaw (a dish
composed of raw fish steeped in vinegar). They found Daylen Cabano, the small grandchild of Catalina,
alone at her house. Daylen was crying, hence, they brought her with them as they proceeded to the
place where Catalina was collecting tuba (fermented coconut wine). It was appellant who carried
Daylen.23 They reached Catalinas place after 5:00 p.m. Thereafter, they went to the house of appellant.
Dodo Malon and appellants parents were in the house. At around 9:00 p.m., Totong and Dodo Malon
left, after partaking of the kinilaw. Appellant stayed home. The following morning (25 March 1997),
appellant and Dodo Malon went to the river to fish.At about 12:00 noon, appellant repaired to the
house of his aunt, Victoria Gayod, in Mahayahay to drink tuba. He was located by the police and
investigated.24 He claimed that it was Daylen and not the victim Remelyn whom he was carrying.

As corroborative witness, appellant presented Alex Totong Loyola. Totong testified that on 24 March
1997, at about 4:00 p.m., they registered as voters in the barangay. After registering, they went home to
appellants house, but again left to get vinegar from his aunt Catalina Cabano, for their kinilaw. In
Catalinas house, they found her drunk husband, her 10-year old daughter, and her 3-year old grandchild
Daylen.25 Catalinas daughter directed them to the place where she was gathering tuba. As Daylen was
crying, appellant carried her on their way to Catalina. It was then about 4:00 p.m. After Catalina finished
gathering tuba, the four of them appellant, Totong, Catalina and Daylen, left together and repaired to
Catalinas house for the vinegar. Appellant and Totong returned to appellants house where they spent
the night.26 Totong woke up at 6:00 a.m. the following day, and left appellants house. Totong came to
know of appellants arrest the following day.27 ςrνll

Catalina Cabano also corroborated appellants story. She relates that on 24 March 1997, she was
gathering tuba, at a place around 2 kilometers from her house. She left Maritess, her youngest child and
Daylen, her grandchild, at her house.28 At about 5:30 p.m., appellant and Totong arrived. Appellant was
carrying Daylen. They waited for Catalina to finish gathering tuba until 6:00 p.m. Appellant and Totong
went to the formers house, had a drinking spree, and then parted ways at about 6:30 p.m. That night,
according to Catalina, she talked to Tulon Mik at the premises near the house. Mik was looking for
Remelyn. At that time, appellant was already at the house of Catalinas younger sister, which is located
across the river, about 4 kilometers away.29 ςrνll

After trial, the trial court found that there was sufficient circumstantial evidence to convict appellant for
the crime of rape with the qualifying circumstance that the victim was below seven years of age.
Appellant was sentenced to death and ordered to indemnify the victim the sums of fifty thousand pesos
(P50,000.00) as moral damages, thirty thousand pesos (P30,000.00) as exemplary damages, and to pay
the costs of suit.

In his Brief30 to the Court, appellant assigned the following errors in the judgment of the trial court:

I.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT, ROLANDO (sic) GAUDIA DESPITE
THE FACT THAT HIS GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

II.

EVEN GRANTING WITHOUT ADMITTING THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED,
THE TRIAL COURT STILL ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH DESPITE THE FAILURE
OF THE PROSECUTION TO STATE WITH CERTAINTY THE QUALIFYING CIRCUMSTANCE OF AGE IN THE
INFORMATION.

We convict appellant for simple rape, and not for qualified rape.

Under Rule 133, Section 4 of the Revised Rules of Court, conviction may be based on circumstantial
evidence provided three requisites concur: (a) there is more than one circumstance; (b) the facts from

670
which the inferences are derived are proven; and (c) the combination of all the circumstances is such as
to produce a conviction beyond reasonable doubt. The ruling case law is that for circumstantial evidence
to be sufficient to support a conviction, all circumstances must be consistent with each other, consistent
with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis
that he is innocent and with every other rational hypothesis except that of guilt.31 ςrνll

The first circumstantial evidence against the appellant is the testimony of prosecution witness Tulon Mik
that at 4:00 p.m. on 24 March 1997, he saw him carrying Remelyn toward the direction of the ipil-
ipil grove, some 130 meters from her house.32 As a neighbor and relative of Remelyns stepfather, Mik
had sufficient familiarity with the child Remelyn. The possibility that he could have been mistaken in
identifying the victim is nil.

The second circumstantial evidence against the appellant is Amalias testimony that Remelyn emerged
naked from the same ipil-ipil grove, with ipil-ipil leaves clinging to her forehead. Remelyn was crying and
walking with her legs spread far apart. Remelyns private organ was bleeding and excreting a white
mucus-like substance.33 ςrνll

The third circumstantial evidence against appellant is Remelyns statement to her mother that it was
appellant who had brought her to the ipil-ipil grove34 and forced her to do something against her
will.35 ςrνll

There is no question that Remelyn was violated. After examining Remelyn, Dr. Patricio Hernane, the
Municipal Health Officer of Hagonoy, found her to have a broken hymen, as well as fresh vaginal
lacerations.

From these, the culpability of the appellant can be inferred with moral certainty. All the aforementioned
circumstances have been indubitably proven, both by the testimonial and documentary evidence
presented by the prosecution, and by the inability of the appellant to discredit their veracity.

The attempt of appellant to discredit the circumstantial evidence against him is futile. Appellant
contends, first, that Tulon Miks testimony is weak, on the ground that Mik is a relative of the husband of
Amalia.36 He also questions the credibility of Mik because of his failure to confront appellant when he
saw him carrying Remelyn. Neither did Mik inform Amalia about what he saw when Amalia was looking
for Remelyn. Appellant insists that it was Daylen whom he carried and not Remelyn. Second, he stresses
the fact that Remelyn did not make any categorical statement that he sexually molested her. Third, he
maintains that the accusation of flight against him is false. Fourth, he avers that the offer of compromise
by his parents as tendered to Amalia Loyola should not be taken against him,37 while the offer of
compromise he allegedly made to Amalias husband, as relayed by Amalia in her testimony, should be
excluded as evidence for being hearsay.38 Finally, he submits that inconsistencies in the testimony of
Alex Loyola and Cabano should not be counted against him on the ground that any finding of guilt must
rest on the strength of the prosecutions evidence.

We reject appellants arguments.

First, appellants attempt to discredit the testimony of Mik cannot succeed. It is true that Mik is a relative
by affinity of Amalia Loyola. It is hoary jurisprudence, however, that mere relationship to one of the
parties, without a showing of any other improper motive, is not sufficient basis to impair the credibility
of the witness.39 In the case at bar, appellant cannot impute any ill motive for Mik to testify adversely
against him.

Appellant questions the failure of Mik to challenge him why he was carrying Remelyn. Also, he assails
Mik for failing to inform Amalia Loyola of such a sight. Mik had an explanation for the inadvertence. He
said his own child was down with a fever, and he and his wife were hurrying home.40 For this same
reason, he revealed the fact that he saw appellant carrying Remelyn toward the ipil-ipil grove only when
he learned of Remelyns fate. But thereafter, he lost no time in reporting the matter to the barangay
chairman.41 As a barangay kagawad, he also assisted in the pursuit and arrest of appellant at Barangay
Mahayahay.42 These subsequent actions strengthen Miks credibility.

671
The trial court accorded more credence to Miks narration of the events over the testimonies of Cabano
and Loyola.It is a cornerstone of our jurisprudence that the trial judge's evaluation of the testimony of a
witness and its factual findings are accorded not only the highest respect, but also finality, unless some
weighty circumstance has been ignored or misunderstood which could alter the result of the judgment
rendered. In the case at bar, there is no irregularity in the assessment of evidence by the lower court. It
granted utmost credibility to Miks testimony. Given the direct opportunity to observe the witness on the
stand, the trial judge was in a vantage position to assess his demeanor and determine if he was telling
the truth or not.43 The trial court found Miks testimony more worthy of credence over those of Catalina
and Loyola. We have no reason to reverse its findings.

Next, appellant tried to capitalize on the fact that Remelyn never made any statement that he sexually
molested her. This is a specious argument. Remelyn had told her mother, Crazy Lendoy forced
me.44 Remelyn was 3 1/2 years old at the time. At such an infantile age, she could not be expected to
have a comprehension of the concept of rape. Studies show that children, particularly very young
children, make the perfect victims. They naturally follow the authority of adults as the socialization
process teaches children that adults are to be respected.The childs age and developmental level will
govern how much she comprehends about the abuse and therefore how much it affects her. If the child
is too young to understand what has happened to her, the effects will be minimized because she has no
comprehension of the consequences. Certainly, children have more problems in providing accounts of
events because they do not understand everything they experience. They do not have enough life
experiences from which to draw upon in making sense of what they see, hear, taste, smell and feel.
Moreover, they have a limited vocabulary.45 The fact that Remelyn called appellant Buang or crazy
shows that he did something which she knew was not right or proper.By saying iya kong lugos, Remelyn
clearly conveyed that he forced her to do something bad. With her limited comprehension, the child
could not have a perfect way of relating that she had been sexually abused. Finally, it must also be
considered that there is no actual counterpart for the word rape in Visayan parlance.

Appellants charge that the trial court erred when it ruled that he fled arrest, even if correct, is not
pivotal to his guilt. There are enough pieces of circumstantial evidence to convict him. Neither will it
affect the penalty or the award of damages rendered against him.

Similarly, appellants charge that the offers of compromise allegedly made by the parents of the
appellant to Amalia, and by the appellant himself to Amalias husband should not have been taken
against him by the trial court, even if sustained, will not exculpate him. To be sure, the offer of
compromise allegedly made by appellant to Amalia Loyolas husband is hearsay evidence, and of no
probative value. It was only Amalia who testified as to the alleged offer,46 and she was not a party to the
conversation which allegedly transpired at the Hagonoy Municipal Jail. A witness can only testify on
facts which are based on his personal knowledge or perception.47 The offer of compromise allegedly
made by the appellants parents to Amalia may have been the subject of testimony48 of Amalia. However,
following the principle of res inter alios acta alteri nocere non debet,49 the actions of his parents cannot
prejudice the appellant, since he was not a party to the said conversation, nor was it shown that he was
privy to the offer of compromise made by them to the mother of the victim. They cannot be considered
as evidence against appellant but we reiterate that these errors are not enough to reverse the
conviction of the appellant.

Appellants defense hardly impresses.It is interesting to note that appellant and his witnesses claim that
it was at around 5:00 p.m. when appellant carried the child Daylen toward her grandmother Catalina at
the place where she was gathering tuba. Mik testified thatit was around 4:00 p.m. when he saw
appellant carrying Remelyn toward the ipil-ipil grove. Given the 130-meter distance between the ipil-
ipil grove and the houses of appellant and of Amalia Loyola, appellant could have easily taken Remelyn
from her house, raped her at the ipil-ipil grove, and left her there, all in a matter of a few minutes.
Sometime past 4:00 p.m., he could then have returned to his house, and together with Alex Loyola,
proceeded to the COMELEC office to register, and did all the subsequent acts he claims to have done.

The Court also notes the inconsistencies in the testimonies of Catalina and Loyola. The discrepancies in
the witnesses narration as to the time of arrival of appellant at the place where Catalina was
gathering tuba, his time of arrival at his own house, and the time when Loyola and appellant actually
parted ways, are not mere trivial details which could be forgotten by witnesses because of the passage

672
of time. To make matters worse, the appellants testimony was, at times, contradicted by his own
witnesses. Particularly telling was the conflict between appellants statement that Totong had already
left his house on the night of 24 March 1997 and Totong and Catalinas own averments that Totong had
stayed the night at appellants house. These contradictory testimonies only made more incredulous
appellants tale.

We now review the penalty of death imposed upon appellant. In the case at bar, the Information states
that appellant, by means of force and intimidationwillfully, unlawfully and feloniously (had) carnal
knowledge with Remelyn Loyola, a minor, against her will to her damage and prejudice.50 (emphasis
ours) The Information did not allege that Remelyn was below seven years old when she was violated.
Appellant was therefore charged with simple rape, under Section 335 of the Revised Penal Code, as
amended by Republic Act No. 7659 (the Death Penalty Law). Upon its passage, R.A. No. 7659 introduced
seven new attendant circumstances, which when present, will transform the crime to qualified rape,
punishable by death. We again stress that these new attendant circumstances must be properly pleaded
in the information to justify the imposition of the death penalty. The facts stated in the body of the
information determine the crime for which the accused stands charged and for which he must be
tried.51 The main purpose of requiring all the elements of a crime to be set out in the information is to
enable the accused to suitably prepare his defense. It would be a denial of the right of the accused to be
informed of the charges against him and, consequently, a denial of due process, if he is charged with
simple rape and be convicted of its qualified form punishable with death, although the attendant
circumstance qualifying the offense and resulting in capital punishment was not alleged in the
indictment on which he was arraigned.52 ςrνll

We now review the damages awarded by the trial court. Time and again, we have ruled that when there
is a finding that rape had been committed, the award of civil indemnity ex delicto is mandatory.53 If the
death penalty has been imposed, the indemnity should be P75,000.00; otherwise the victim is entitled
to P50,000.00 for each count of rape.54 Thus, the appellant is ordered to pay the amount of P50,000.00
as civil indemnity to Remelyn Loyola.55 ςrνll

We affirm the award of moral damages.This is automatically awarded in rape cases without need of
further proof other than the commission of the crime, as it is assumed that a rape victim has suffered
moral injuries entitling her to such an award.56 ςrνll

We also find the award of exemplary damages made by the lower court in favor of complainant as
proper because complainant has been correctly granted moral damages and the offense against her was
committed with the aggravating circumstance57 of age. However, the amount awarded must be reduced
to P25,000.00 in line with prevailing jurisprudence.58 ςrνll

WHEREFORE, the judgment of conviction of the Regional Trial Court, Branch 19, of Digos, Davao del Sur
in Criminal Case No. 213(97) is hereby MODIFIED. Appellant is found guilty of the crime of simple rape,
and is sentenced to suffer the penalty of reclusion perpetua. He is ordered to pay to complainant
Remelyn Loyola the amounts of P50,000.00 as civil indemnity ex delicto, P50,000.00 as moral damages,
and P25,000.00 as exemplary damages. Costs against the appellant.

SO ORDERED.

Davide, Jr., C.J., Vitug, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio, Austria-
Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, and TINGA, JJ., concur.

Endnotes:

[G.R. NO. 146584. July 12, 2004]

ERNESTO FRANCISCO y SPENOCILLA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION

CALLEJO, SR., J.:

673
This is an appeal via a Petition for Review on Certiorari of the Decision1 of the Court of Appeals in CA-G.R.
CR No. 19110 affirming the Decision2 of the Regional Trial Court of Malolos, Bulacan, Branch 22, finding
petitioner Ernesto Francisco guilty of violating Presidential Decree No. 1612, otherwise known as the
Anti-Fencing Law, sentencing him to suffer the penalty of ten (10) years and one (1) day of prision
mayor maximum, as minimum, to twenty (20) years of reclusion temporal maximum, as maximum, with
the accessory penalties corresponding to the latter, and to pay the corresponding value of the subject
pieces of jewelry.

The Indictment

The petitioner was charged of violating P.D. No. 1612 under the Information filed on June 23, 1993, the
accusatory portion of which reads:chanroblesvirtua1awlibrary

That in or about the month of November 1991, in the municipality of Meycauayan, Province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the said accused Ernesto Francisco y
Spenocilla, with intent to gain for himself, did then and there wil[l]fully, unlawfully and feloniously buy,
receive, possess and acquire from one Pacita Linghon y Liza, not the owner, several pieces of jewelry, to
wit:chanroblesvirtua1awlibrary

One (1) pair of earrings (Heart Shape) ---P 400,000.00

One (1) White Gold Bracelet ----150,000.00

One (1) Diamond Ring---- 100,000.00

One (1) Ring with Diamond ----5,000.00

with the total value of P655,000.00, belonging to Jovita Rodriguez y Cruz, which he knows, or should be
known to him, to have been derived from the proceeds of the crime of robbery or theft.

Contrary to law.3 cralawred

The petitioner was arraigned, with the assistance of counsel, and entered a plea of not guilty. Trial
forthwith ensued.

The Case for the Prosecution

Jovita Rodriguez was a resident of Barangay Manggahan, Rodriguez, Rizal.4 She was engaged in business
as a general contractor under the business name J.C. Rodriguez Contractors. Macario Linghon was one
of her workers. She and her husband, the former Municipal Mayor of Rodriguez, Rizal, acquired several
pieces of jewelry which were placed inside a locked cabinet in a locked room in their main house. Jovita
hid the key to the cabinet inside the room. The couple and their son resided inside a compound. They
hired Pacita Linghon, Macarios sister, as one of their household helpers us sometime in February
1989.5 Pacita swept and cleaned the room periodically.Sometime in May 1991, she left the employ of
the Rodriguez family.

Sometime in the third week of October 1991, Pacita contacted her brother Macario, who resided in Sitio
Baloongan, Barangay Paltok, Meycauayan, Bulacan,6 and asked him to sell some pieces of jewelry. She
told Macario that a friend of hers owned the jewelry.7 Macario agreed. He then went to the shop of
petitioner Ernesto Erning Francisco located at Pacheco Street, Calvario, Meycauayan, Bulacan,8 which
had a poster outside that said, We buy gold. Macario entered the shop, while Pacita stayed outside.
Macario offered to sell to Ernesto two rings and one bracelet. Ernesto agreed to buy the jewelry
for P25,000, and paid the amount to Macario. He also gave Macario P300 as a tip.9 cralawred

Sometime in November 1991,10 Pacita asked Macario anew to sell a pair of earrings.He agreed. He and a
friend of his went to the shop of Ernesto and offered to sell to Ernesto the pair of earrings for P18,000.
The latter agreed and paid Macario the amount.Ernesto gave a P200 tip to Macario. After these

674
transactions, Macario saw the petitioner in his shop for about five to six more times and received some
amounts.11 cralawred

Sometime in November 1991, Jovita was asked to be a principal sponsor at a wedding. She was shocked
when she opened the locked cabinet containing her jewelry, and found that the box was empty. She
noticed that the lock to the cabinet was not broken. Among the pieces of jewelry missing were one pair
of diamond heart-shaped earrings worth P400,000; one heart-shaped diamond ring worth P100,000;
one white gold bracelet with diamond stones worth P150,000; and one ring with a small diamond stone
worth P5,000. She suspected that it was Pacita who stole her jewelry. She was, however, occupied with
her business ventures that she had little time to gather evidence and charge Pacita.

On August 19, 1992, Jovita filed a complaint for theft against Pacita and her mother Adoracion Linghon
with the Counter-Intelligence Group of the Philippine National Police in Camp Crame, Quezon City. She
stated that she owned several jewels, viz: one (1) heart-shaped pair of earrings with diamond
worth P400,000; one (1) heart-shaped ring with diamond worth P100,000; one (1) white gold bracelet
with diamond stones worth P150,000; and, one (1) ring with a small diamond stone worth P5,000. She
also averred that Pacita had stolen the pieces of jewelry, and that she and her mother Adoracion
disposed of the same.

A team of police investigators, including PO1 Santiago Roldan, Jr. of the Counter-Intelligence Group,
invited Pacita and Adoracion to Camp Crame, Quezon City, for investigation in connection with Jovitas
complaint. Pacita arrived in Camp Crame without counsel and gave a sworn statement pointing to the
petitioner as the person to whom she sold Jovitas jewelry. On August 23, 1992, Pacita gave a sworn
statement to PO1 Roldan, Jr., admitting that she sold one pair of heart-shaped earrings with diamond,
one white gold bracelet, one heart-shaped diamond ring, and one ring with big and small stones to
Mang Erning of Meycauayan, Bulacan, for the total price of P50,000 to cover the cost of her fathers
operation and for food. When asked about the full name of the person to whom the jewelry was sold,
Pacita replied that she knew him only as Mang Erning.

Pacita accompanied a group of five police officers, which included SPO1 Dremio Peralta and PO1 Roldan,
Jr. to the shop in Meycauayan, Bulacan. Pacita pointed to the petitioner as the Mang Erning who had
purchased the jewelry from her. The policemen alighted from their vehicle and invited the petitioner for
questioning in Camp Crame. Upon his insistence, the petitioner was brought to the police station of
Meycauayan, Bulacan.When they were at the police station, the petitioner, in the presence of SPO4
Valdez, offered an amount of P5,000 to the policemen as a bribe, for them not to implicate him in the
case.PO1 Roldan, Jr. rejected the offer.12 They again invited the petitioner to go with them to Camp
Crame, but the petitioner refused and demanded that the policemen first secure a warrant for his arrest
should they insist on taking him with them.13 cralawred

Nevertheless, Pacita was charged with qualified theft in the Regional Trial Court of San Mateo, Rizal,
Branch 76.14 The case was docketed as Criminal Case No. 2005.Adoracion was also charged with
violating P.D. No. 1612 (Anti-Fencing Law), docketed as Criminal Case No. 1992. The cases were
consolidated and jointly tried.

Meanwhile, Jovita succeeded in convincing Macario to testify against the petitioner, assuring him that
he would not be prosecuted for violation of P.D. No. 1612. Macario agreed to testify against the
petitioner.

PO1 Roldan, Jr. and SPO1 Peralta executed a joint affidavit on their investigation.

On September 1, 1992, Jovita executed a sworn statement in the office of the police station of
Meycauayan, Bulacan, charging the petitioner of buying stolen jewelry worth P655,000.15 A criminal
complaint against the petitioner for violation of P.D. No. 1612 was filed in the Municipal Trial Court of
Meycauayan, Bulacan, docketed as Criminal Case No. 92-13841. During the preliminary investigation,
Pacita and Macario testified that they sold a set of earrings, bracelet and two rings to the petitioner
for P50,000 at his shop in Meycauayan, Bulacan. According to Pacita, she found the jewelry belonging to
Jovita while she was cleaning the room in the house, and that she brought the jewelry home.16 The court
found probable cause against the petitioner, and issued a warrant for his arrest.

675
On June 23, 1993, an Information was filed by the Provincial Prosecutor with the RTC charging the
petitioner with violating P.D. No. 1612.

In the meantime, on August 20, 1993, judgment was rendered by the RTC of San Mateo, Rizal, Branch 76,
in Criminal Cases Nos. 1992 and 2005, finding Pacita guilty of theft and Adoracion guilty of fencing under
P.D. No. 1612, beyond reasonable doubt. The decretal portion of the decision
reads:chanroblesvirtua1awlibrary

WHEREFORE, premises considered, judgment is hereby rendered in these cases, as

follows:chanroblesvirtua1awlibrary

1.In Crim. Case No. 2005, finding accused Pacita Linghon y Liza GUILTY beyond reasonable doubt of the
crime of theft, as defined and penalized under Art. 308 in relation to Art. 309 of the Revised Penal Code,
and sentencing her to suffer the indeterminate sentence of Nine (9) years and Four (4) months of prision
mayor as minimum to Eighteen (18) years, Two (2) months and Twenty (20) days of reclusion
temporal as maximum, to return to complainant Jovita Rodriguez the unrecovered stolen pieces of
jewelry subject of this case and if restitution is not possible, to indemnify the said complainant in the
amount of P1,300,000.00; and to pay the costs.

2.In Crim. Case No. 1992, finding accused Adoracion Linghon y Liza GUILTY beyond reasonable doubt of
the offense of violation of PD 1612, otherwise known as the Anti-Fencing Law, and sentencing her to
suffer imprisonment of Twelve (12) years of prision mayor; to indemnify complainant Jovita Rodriguez in
the amount of P45,000.00; and to pay the costs.

SO ORDERED.17

The Case for the Petitioner

The petitioner testified that he was a resident of Calvario, Meycauayan, Bulacan. He had a shop located
at Pacheco Street, Calvario, Meycauayan, Bulacan, where he bought and sold jewelry. He had been in
this business since 1980.18 He did not transact with Pacita regarding Jovitas missing jewels.19 In fact, he
did not even know Jovita and met her only during the preliminary investigation of the case before the
MTC of Meycauayan, Bulacan. He, likewise, denied knowing Pacita Linghon, and claimed that he first
saw her when she accompanied some policemen in civilian clothes to his shop, where he was thereafter
invited to Camp Crame for investigation.20 He saw Pacita again only during the preliminary investigation
of the case.21 The petitioner also averred that he had no transaction with Macario of whatever
nature.22 cralawred

The petitioner further testified that when the policemen in civilian clothes approached him in his shop,
they asked who Mang Erning was, as the sign in his shop carried such name. When he responded to the
question, the policemen identified themselves as members of the police force. The petitioner then gave
them his full name.23 When the policemen invited him for questioning, he refused at first. Eventually, he
agreed to be interrogated at the municipal hall, where the policemen insisted on bringing him to Camp
Crame. He told them that he would go with them only if they had a warrant of arrest.24 He denied ever
offering any bribe to the policemen.25 cralawred

On November 29, 1995, the court rendered judgment finding the petitioner guilty beyond reasonable
doubt of violating P.D. No. 1612. The decretal portion of the decision reads:chanroblesvirtua1awlibrary

WHEREFORE, in view of the foregoing, judgment is hereby rendered as

follows:chanroblesvirtua1awlibrary

1.Finding the accused GUILTY beyond reasonable doubt of the violation of Pres. Decree No. 1612 (Anti-
Fencing Law) and is hereby sentenced to suffer the penalty of 10 years and 1 day of prision
mayor maximum, as minimum, to 20 years of reclusion temporal maximum, as maximum, with the
accessory penalties corresponding to the latter.

676
2.Ordering the accused to pay to private complainant Jovita Rodriguez the corresponding value of the
subject items of jewelries (sic) :chanroblesvirtua1awlibrary

one (1) pair of earrings, heart shaped P400,000.00

one (1) white gold bracelet 150,000.00

one (1) diamond ring 100,000.00

one (1) ring with diamond 5,000.00

TOTAL VALUE --> P655,000.00

with 6% interest on all amounts due from the filing of the information on June 23, 1993 until said
amounts have been fully paid.

SO ORDERED.26 cralawred

The petitioner appealed the decision to the Court of Appeals contending that:

THE LOWER COURT ERRED IN NOT FINDING THAT THE TESTIMONY OF PROSECUTION WITNESSES ARE
ALL HEARSAY EVIDENCE.

II

THE LOWER COURT ERRED IN NOT FINDING THAT THE PROSECUTION EVIDENCE WAS NOT SUFFICIENT
TO CONVICT THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT.

III

THE LOWER COURT ERRED IN BELIEVING ON THE CONTRADICTING TESTIMONY (sic) OF PROSECUTION
WITNESSES.

IV

THE LOWER COURT ERRED IN BELIEVING THE TESTIMONY OF A PROSECUTION WITNESS AS TO THE
ALLEGED ACCUSED-APPELLANTS OFFER OF BRIBE WITHOUT SHOW OF MONEY.

THE LOWER COURT ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT.27 cralawred

On December 29, 2000, the CA rendered judgment affirming the decision of the RTC.28

The Present Petition

In the present recourse, petitioner Ernesto Francisco asserts that:chanroblesvirtua1awlibrary

The Court of Appeals erred in sustaining the trial courts decision finding petitioner guilty beyond
reasonable doubt of violation of the (sic) Presidential Decree No. 1612, otherwise known as the Anti-
Fencing Law.

The Court of Appeals erred in relying on the conflicting testimonies of prosecution witnesses, all of
which consisted of hearsay evidence.29 cralawred

677
The petitioner asserts that the prosecution failed to prove his guilt for the crime charged beyond
reasonable doubt.He avers that the prosecution failed to prove that Pacita stole the jewelry subject of
the charge, and that Macario sold the said pieces of jewelry to him. He, likewise, posits that the
prosecution failed to present Pacita as its witness to prove that she stole the pieces of jewelry and sold
the same to him, and to adduce in evidence the jewelry allegedly sold to him. He contends that the
testimonies of Macario and PO1 Roldan, Jr., on his investigation of Jovitas complaint for theft, are
hearsay evidence. The appellant argues that assuming that Macario sold the subject jewelry to him,
Macario had no personal knowledge that the same belonged to Jovita. The petitioner avers that the
testimony of Macario, the principal witness of the prosecution, is inconsistent on substantial matters;
hence, should not be given credence and probative weight.

On the other hand, the Office of the Solicitor General (OSG) maintains that the prosecution was able to
prove all the elements of the crime charged. It asserts that the first element was proved through Pacitas
conviction for theft in Criminal Case No. 2005; the second element was shown to exist with moral
certainty via the testimony of Macario identifying the petitioner as the one who bought the subject
pieces of jewelry, corroborated by the testimony of PO1 Roldan, Jr.; and, the third element was proven
by evidence showing that the petitioner had been in the business of buying and selling jewelry for a long
period of time, and that he had the expertise to know the correct market price of the jewelry he
purchased from Macario and Pacita. The OSG asserts that the petitioner must have been put on his
guard when the subject pieces of jewelry worth P655,000 were sold to him for only P50,000.30 It
contends that the inconsistencies in the testimonies of the prosecution witnesses referred to by the
petitioner were minor, and could not be made as a basis to disregard the trial courts findings of facts,
which are entitled to great respect and credit.31

The Ruling of the Court

The petition is meritorious.

The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been
committed; (2) the accused, who is not a principal or accomplice in the commission of the crime of
robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells,
or in any manner deals in any article, item, object or anything of value, which has been derived from the
proceeds of the crime of robbery or theft; (3) the accused knew or should have shown that the said
article, item, object or anything of value has been derived from the proceeds of the crime of robbery or
theft; and, (4) there is, on the part of the accused, intent to gain for himself or for another.32 Fencing
is malum prohibitum, and P.D. No. 1612 creates a prima faciepresumption of fencing from evidence of
possession by the accused of any good, article, item, object or anything of value which has been the
subject of robbery or theft, and prescribes a higher penalty based on the value of the property.33 The
stolen property subject of the charge is not indispensable to prove fencing. It is merely corroborative of
the testimonies and other evidence adduced by the prosecution to prove the crime of fencing.

We agree with the trial and appellate courts that the prosecution mustered the requisite quantum of
evidence, on the basis of the testimony of Jovita, that Pacita stole the subject jewelry from the locked
cabinet in the main house of her then employer. Jovita testified on her ownership of the jewelry and the
loss thereof, and narrated that Pacita had access to the cabinet containing the pieces of jewelry.

We, however, agree with the petitioner that the decision of the RTC of Rizal, Branch 76, in Criminal Case
No. 2005 convicting Pacita of theft does not constitute proof against him in this case, that Pacita had,
indeed, stolen the jewelry. There is no showing that the said decision in Criminal Case No. 2005 was
already final and executory when the trial court rendered its decision in the instant case.

On the second element of the crime, the trial and appellate courts held that the prosecution proved the
same beyond reasonable doubt based on the testimony of Jovita during the trial in Criminal Cases Nos.
1992 and 2005; that Pacita had confessed to Jovita that she sold some of the jewelry to the petitioner;
the joint affidavit of PO1 Roldan, Jr. and SPO1 Peralta on their investigation of the complaint of Jovita;
the testimony of PO1 Roldan, Jr. relating to said investigation; the RTC decision in Criminal Cases Nos.
1992 and 2005; the testimonies of Pacita and her brother Macario during the preliminary investigation
of Criminal Case No. 92-13841 before the MTC of Meycauayan as shown by the transcripts of the

678
stenographic notes taken during the proceedings; the supplemental sworn statement of Pacita on
August 23, 1992 in Camp Crame, Quezon City, and, the testimony of Macario before the trial court.

However, we find and so hold that

First. Jovitas testimony in Criminal Cases Nos. 1992 and 2005, that Pacita had confessed to her that she
had sold four pieces of jewelry to the petitioner, is inadmissible in evidence against the latter to prove
the truth of the said admission. It bears stressing that the petitioner was not a party in the said criminal
cases. The well-entrenched rule is that only parties to a case are bound by a judgment of the trial
court. Strangers to a case are not bound by the judgment of said case.34 Jovita did not reiterate her
testimony in the said criminal cases during the trial in the court a quo. The prosecution did not present
Pacita as witness therein to testify on the admission she purportedly made to Jovita; hence, the
petitioner was not able to cross-examine Pacita. The rule is that the acts or declarations of a person are
not admissible in evidence against a third party.35 cralawred

Second. The testimony of Pacita during the preliminary investigation in Criminal Case No. 92-13841, as
well as her supplemental affidavit, is, likewise, inadmissible against the petitioner since Pacita did not
testify in the court a quo. The petitioner was, thus, deprived of his constitutional right to confront and
cross-examine a witness against him.

Third. The testimony of PO1 Roldan, Jr., that on August 23, 1992, Pacita pointed to the petitioner, while
the latter was having a drinking spree, as the person who bought the subject jewelry from her, is indeed
admissible in evidence against the petitioner. It is, likewise, corroborative of the testimony of Macario.
However, such testimony is admissible only to prove such fact - that Pacita pointed to the petitioner as
the person to whom she sold the subject jewelry; it is inadmissible to prove the truth of Pacitas
declaration to the policemen, that the petitioner was the one who purchased the jewelry from her. It
must be stressed that the policemen had no personal knowledge of the said sale, and, more importantly,
Pacita did not testify in the court a quo. Indeed, the petitioner was deprived of his right to cross-
examine Pacita on the truth of what she told the policemen.

Fourth. On the other hand, the testimony of Macario during the preliminary investigation of Criminal
Case No. 92-13841 is admissible in evidence against the petitioner since he testified for the prosecution
and was cross-examined on his testimony during the preliminary investigation.

In fine, the only evidence of the prosecution to prove that the petitioner purchased the jewelry from
Macario and Pacita are the following: the testimony and affidavit of PO1 Roldan, Jr.; and, the testimony
of Macario during the preliminary investigation and trial in the court a quo.

Although the well-entrenched rule is that the testimony of a single witness is sufficient on which to
anchor a judgment of conviction, it is required that such testimony must be credible and reliable.36 In
this case, we find the testimony of Macario to be dubious; hence, barren of probative weight.

Macario admitted when he testified in the court a quo that his testimony during the preliminary
investigation in Criminal Case No. 92-13841 and his testimony in the court a quo were inconsistent. He
even admitted that some portions of his testimony on direct examination in the court a quo were
inconsistent with his testimony on cross-examination and on re-direct examination. These admissions
are buttressed by the records of the case, which show that such inconsistencies pertained to material
points and not merely to minor matters. Thus, during the preliminary investigation in Criminal Case No.
92-13841, Macario admitted that on October 10, 1991, he and his sister Pacita sold two rings and one
bracelet to the petitioner for P25,000, while in November 1991, he and Pacita sold a pair of earrings to
the petitioner for P25,000. On direct examination in the court a quo, Macario testified that he and Pacita
sold the earrings to the petitioner in May 1992, not in November 1991, and only for P18,000. On cross-
examination, Macario testified that he and his sister Pacita went to the petitioners shop in Meycauayan,
Bulacan and sold the subject jewelry on both occasions. On further cross-examination, Macario changed
his testimony anew, and declared that he sold the jewelry to the petitioner for P18,000 and
not P25,000; only to change his testimony again, and declare that he sold the jewelry for P25,000.
However, Macario testified during the preliminary investigation in Criminal Case No. 92-13841 that
when he transacted with the petitioner for the second time, he was with a friend, and not with his sister

679
Pacita. On redirect examination, Macario declared that in October 1991, he and Pacita sold four (4)
pieces of jewelry, namely, two rings, one bracelet and a pair of earrings, contrary to his testimony on
direct examination. He also testified that he and his sister sold the earrings in November 1991. Because
of the contradicting accounts made by Macario, the court made the following
observations:chanroblesvirtua1awlibrary

Court

qAccording to you, you were nalilitobut you gave the correct answer, you are not nalilito here but you
gave the wrong answer. Bakit ganoon, sabi mo nalilito ka roon (sic) pero ang sagot mo pala tama. Dito
hindi ka naman nalilito, bakit mali. Bakit ka nalilito eh tama iyong P25,000.00. Hindi ka nalilito, mali ang
sabi mo.

aBecause I am scare[d] here thats why I gave the wrong answer.

qYou better think about it.

aI was confused, Sir.37 cralawred

The testimonies of Macario are even contrary to the averments of the Information, that the petitioner
received the said jewelry from Pacita.

Assuming, for the nonce, that the petitioner purchased the said jewelry from Macario, there is no
evidence on record that the petitioner knew that they were stolen. Significantly, even Macario did not
know that the jewelry was stolen. He testified that his sister Pacita told him before he sold the jewelry
to the petitioner that they belonged to a friend of hers.

Atty. Lerio

QAt that time you and your sister sold those jewels to Mang Erning did do you know already [that] it was
Mrs. Rodriguez who is the owner of those jewels?chanroblesvirtualawlibrary

ANo, Sir, I do not know.

QAnd who do you know was the owner of that jewels and that time you and your sister sold those
jewels to Mang Erning?chanroblesvirtualawlibrary

AAccording to my sister, it is (sic) owned by a friend of hers.

Court

QHow did you come to know of this Mang Erning?chanroblesvirtualawlibrary

AOnly at that time when we brought the jewels.

QBut previous to that, do you know him?chanroblesvirtualawlibrary

ANo.38 cralawred

Macario learned, after the case against Pacita had already been filed in the trial court, that the jewelry
was, after all, owned by Jovita. However, he failed to inform the petitioner that the said jewelry was
stolen. Following is the testimony of Macario:chanroblesvirtua1awlibrary

Atty. Lerio

QWhen you learned that those jewels were owned by Mrs. Rodriguez, did you, if at all, informed (sic)
Mang Erning about it?chanroblesvirtualawlibrary

680
Court

QNo basis, when did you come to know that the jewels belong to Mrs.
Rodriguez?chanroblesvirtualawlibrary

AIn 1992, when my sister already had a case.

QWhat did you do when you come (sic) to know about that?chanroblesvirtualawlibrary

AI was not able to do anything but just to help my sister with her case and also to help the case of Mrs.
Rodriguez.

Atty. Lerio

QAfter that, after knowing that these jewels are (sic) owned by Mrs. Rodriguez, was there any occasion
where you (sic) able to inform Mang Erning that those jewels were owned by Mrs.
Rodriguez?chanroblesvirtualawlibrary

ANo more, I have no more time.39 cralawred

The prosecution cannot even validly argue that the petitioner should have known which pieces of
jewelry were stolen, considering that Macario was selling the same for P50,000 when the said pieces
stolen from Jovita were alleged to be worth P655,000. This is so because the prosecution failed to
adduce sufficient competent evidence to prove the value of the said stolen articles. The prosecution
relied solely on the bare and uncorroborated testimony of Jovita, that they were
worth P655,000:chanroblesvirtua1awlibrary

Atty. Lerio

QNow, will you tell this Court some of those jewels which you own?chanroblesvirtualawlibrary

AI own several jewels and the one (sic) in question are: 1-pair of earrings, diamond heart-
shaped P400,000.00; 1-ring, heart-shaped diamond worth P100,000.00; 1-bracelet, white gold full of
stones, diamond worth P150,000.00; 1-diamond ring with small stones worth P5,000.00. So, all in all,
the jewelry is (sic) worth P665,000.00.40 cralawred

When asked by the trial court to declare the present market value of the stolen jewelry, Jovita merely
declared:chanroblesvirtua1awlibrary

Atty. Lerio

QNow again, when did you acquire those jewels if you can still remember?chanroblesvirtualawlibrary

AI remember several years ago when my husband is (sic) alive.

Court

QPlease tell the court, [is] the market value of the jewels the same today?chanroblesvirtualawlibrary

ANo, that is (sic) the market value several years ago.

QSo, can you explain [if] the market value, more or less, [is] the same today?chanroblesvirtualawlibrary

ANo. The price, if we will appraise now, is much bigger.41 cralawred

When required by the petitioner, through counsel, to bring to the court any receipts reflecting the price
of the pieces of jewelry to show that she purchased the same, Jovita answered that she had no such
receipts. Thus:chanroblesvirtua1awlibrary

681
Court

QYou bought it from [a] private person?chanroblesvirtualawlibrary

AYes, Your Honor.

Atty. Bernal

QWhat then is your proof that you bought these jewelries (sic) from a private
person?chanroblesvirtualawlibrary

Atty. Lerio

That was already answered, Your Honor. She said, no receipt.42 cralawred

In People v. Paraiso, 43 we cited our ruling in People v. Marcos 44 that an ordinary witness cannot
establish the value of jewelry, nor may the courts take judicial notice of the value of the
same:chanroblesvirtua1awlibrary

[A]nd as we have ruled in the case of People v. Antonio Marcos, an ordinary witness cannot establish the
value of jewelry and the trial court can only take judicial notice of the value of goods which are matters
of public knowledge or are capable of unquestionable demonstration. The value of jewelry is not a
matter of public knowledge nor is it capable of unquestionable demonstration and in the absence of
receipts or any other competent evidence besides the self-serving valuation made by the prosecution,
we cannot award the reparation for the stolen jewelry.45 cralawred

It bears stressing that, in the absence of direct evidence that the accused had knowledge that the
jewelry was stolen, the prosecution is burdened to prove facts and circumstances from which it can be
concluded that the accused should have known that the property sold to him were stolen. This
requirement serves two basic purposes: (a) to prove one of the elements of the crime of fencing; and,
(b) to enable the trial court to determine the imposable penalty for the crime, since the penalty depends
on the value of the property; otherwise, the court will fix the value of the property at P5.00,
conformably to our ruling in People v. Dator:46 cralawred

In the absence of a conclusive or definite proof relative to their value, this Court fixed the value of the
bag and its contents at P100.00 based on the attendant circumstances of the case.More pertinently, in
the case of People v. Reyes, this Court held that if there is no available evidence to prove the value of
the stolen property or that the prosecution failed to prove it, the corresponding penalty to be imposed
on the accused-appellant should be the minimum penalty corresponding to theft involving the value
of P5.00.47 cralawred

IN VIEW OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals in CA-
G.R. CR No. 19110 affirming the Decision of the Regional Trial Court of Malolos, Bulacan, Branch 22, is
REVERSED and SET ASIDE. The petitioner is ACQUITTED of the crime of violating P.D. No. 1612 for the
prosecutions failure to prove his guilt beyond reasonable doubt.

SO ORDERED.

Puno, (Chairman), Quisumbing, Austria-Martinez, and TINGA, JJ., concur.

G. R. No. 144621 - May 9, 2003

PEOPLE OF THE PHILIPPINES, Appellee, vs. ISAGANI GUITTAP y PENGSON (Acquitted), WILFREDO
MORELOS y CRUZ (Acquitted), CESAR OSABEL @ DANILO MURILLO @ DANNY @ SONNY VISAYA @
BENJIE CANETE, ARIEL DADOR y DE CHAVEZ (Discharge), DECENA MASINAG VDA. DE RAMOS, LUISITO
GUILLING @ LUISITO (Acquitted), and JOHN DOE @ PURCINO, accused.
DECENA MASINAG VDA. DE RAMOS, Appellant.

682
YNARES-SANTIAGO, J.:

Appellant Decena Masinag Vda. de Ramos assails the decision1 of the Regional Trial Court of Lucena City,
Branch 60, in Criminal Case No. 92-387, finding her and accused Cesar Osabel guilty beyond reasonable
doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of
reclusion perpetua, with all the accessory penalties provided by law, and to indemnify the heirs of the
victims the amounts of P100,000.00 as civil indemnity and P67,800.00 as actual damages.

On September 1, 1992, an Amended Information for Robbery with Double Homicide was filed against
appellant Masinag, Isagani Guittap y Pengson, Wilfredo Morelos y Cruz, Cesar Osabel,2 Ariel Dador y De
Chavez, Luisito Guilling and John Doe @ "Purcino". The accusatory portion of the information reads:

That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, conspiring and confederating with one
another, armed with bladed weapons, by means of violence, and with intent to gain, did then and there
willfully, unlawfully and feloniously take, steal and carry away certain personal items, to wit:

one (1) solid gold ring valued at P8,000.00

one (1) diamond ring valued at P40,000.00
one (1) necklace with pendant valued at P2,000.00
cash money in the amount of P4,500.00
one (1) samsonite bag valued at P650.00
one (1) .22 Cal. Squibbman with SN 64130 valued at
P5,000.00
one (1) pair of sandal valued at P650.00
one (1) music mate (karaoke) valued at P5,000.00
one (1) jacket (adidas) valued at P1,000.00; and
one (1) pair of shoes valued at P1,000.00

with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael and
Lionela3 Caringal, without the consent and against the will of the latter, to the damage and prejudice of
the aforementioned offended parties in the aforestated sum of P67,800.00, Philippine Currency, and, on
the same occasion of such robbery, the said accused, conspiring and confederating with one another,
armed with the same bladed weapons, taking advantage of superior strength, and employing means to
weaken the defense or of means or persons to insure or afford impunity, and with intent to kill, did then
and there willfully, unlawfully and feloniously stab both of said spouses Romualdo Jael and Lionela
Caringal thereby inflicting upon the latter several fatal wounds which directly caused the death of the
aforenamed spouses.

Contrary to law.4

Upon arraignment, appellant Masinag pleaded "not guilty." Trial on the merits thereafter ensued.
Accused Ariel Dador was discharged as a state witness while accused Purcino remained at large.

On February 15, 2000, the trial court rendered its decision, the dispositive portion of which states:

WHEREFORE, premises considered, this court finds Cesar Osabel and Decena Masinag GUILTY beyond
reasonable doubt of the crime of robbery with homicide and they are sentenced to RECLUSION
PERPETUA with all the accessory penalties provided by law. For insufficiency of evidence, the accused
Isagani Guittap, Wilfrido Morelos and Luisito Guilling are hereby ACQUITTED.

The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the heirs of the deceased
Romualdo Jael and Leonila Caringal Jael in the amount of (P100,000.00) One Hundred Thousand Pesos
plus actual damages of (P67,800.00) Sixty Thousand and Eight Hundred Pesos, Philippine Currency.

683
SO ORDERED.5

During the trial, state witness Ariel Dador testified that in the evening of July 15, 1992, Cesar Osabel
asked him and a certain Purcino to go with him to see appellant Masinag at her house in Isabang, Lucena
City. When they got there, Osabel and Masinag entered a room while Dador and Purcino waited outside
the house. On their way home, Osabel explained to Dador and Purcino that he and Masinag planned to
rob the spouses Romualdo and Leonila Jael. He further told them that according to Masinag, the
spouses were old and rich, and they were easy to rob because only their daughter lived with them in
their house.

The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the house of the Jael spouses to
execute the plan. Osabel and Purcino went inside while Dador stayed outside and positioned himself
approximately 30 meters away from the house. Moments later, he heard a woman shouting for help
from inside the house. After two hours, Osabel and Purcino came out, carrying with them one karaoke
machine and one rifle. Osabel's hands were bloodied. He explained that he had to tie both the victims'
hands with the power cord of a television set before he repeatedly stabbed them, He killed the spouses
so they can not report the robbery to the authorities.

Osabel ordered Dador to hire a tricycle while he and Purcino waited inside the garage of a bus line.
However, when Dador returned with the tricycle, the two were no longer there. He proceeded to the
house of Osabel and found him there with Purcino. They were counting the money they got from the
victims. They gave him P300.00. Later, when Dador accompanied the two to Sta. Cruz, Manila to dispose
of the karaoke machine, he received another P500.00. Osabel had the rifle repaired in Gulang-Gulang,
Lucena City.

Dador and Osabel were subsequently arrested for the killing of a certain Cesar M. Sante. During the
investigation, Dador executed an extrajudicial confession admitting complicity in the robbery and killing
of the Jael spouses and implicating appellant and Osabel in said crime. The confession was given with
the assistance of Atty. Rey Oliver Alejandrino, a former Regional Director of the Human Rights
Commission Office. Thereafter, Osabel likewise executed an extrajudicial confession of his and
appellant's involvement in the robbery and killing of the Jaels, also with the assistance of Atty.
Alejandrino.

Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning of July 17, 1992, he noticed
that the victims, who were known to be early risers, had not come out of their house. He started calling
them but there was no response. He instructed his son to fetch the victims' son, SPO1 Lamberto Jael.
When the latter arrived, they all went inside the house and found bloodstains on the floor leading to the
bathroom. Tabor opened the bathroom door and found the lifeless bodies of the victims.

Dr. Vicente F. Martinez performed the post-mortem examination on the bodies of the victims and
testified that since rigor mortis had set in at the back of the neck of the victims, Romualdo Jael died
between six to eight hours before the examination while Leonila Jael died before midnight of July 16,
1992. The cause of death of the victims was massive shock secondary to massive hemorrhage and
multiple stab wounds.

Appellant Masinag, for her part, denied involvement in the robbery and homicide. She testified that she
knew the victims because their houses were about a kilometer apart. She and Osabel were friends
because he courted her, but they never had a romantic relationship. She further claimed that the last
time she saw Osabel was six months prior to the incident. She did not know Dador and Guilling at the
time of the incident. According to her, it is not true that she harbored resentment against the victims
because they berated her son for stealing their daughter's handbag. On the whole, she denied any
participation in a conspiracy to rob and kill the victims.

From the decision convicting appellant Masinag and Osabel, only the former appealed, based on the
lone assigned error:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF ROBBERY

684
WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL PARTICIPATION IN THE COMMISSION OF THE
SAID CRIME.

The appeal is meritorious.

While it is our policy to accord proper deference to the factual findings of the trial court, 6 owing to their
unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude
under grueling examination,7 where there exist facts or circumstances of weight and influence which
have been ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of
facts,8 we may disregard its findings.

Appellant contends that the extrajudicial confessions of Osabel and Dador were insufficient to establish
with moral certainty her participation in the conspiracy. Firstly, Dador was not present to hear appellant
instigate the group to rob the Jael spouses. He only came to know about the plan when Osabel told him
on their way home. Thus, Dador had no personal knowledge of how the plan to rob was actually made
and of appellant's participation thereof. Secondly, while Osabel initially implicated her in his
extrajudicial confession as one of the conspirators, he repudiated this later in open court when he
testified that he was forced to execute his statements by means of violence.

On direct examination, Dador narrated what transpired in the house of appellant on July 15, 1992, to
wit:

PROSECUTOR GARCIA:

Q. And do you remember the subject or subjects of that conversation that transpired among you?

A. Yes, sir.

Q. Please tell us what was the subject or subjects of the conversation that transpired among you on
July 15, 1992 at the house of Decena Masinag?

A. The subject of our conversation there was the robbing of Sps. Jael, sir.

Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael?

A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena Masinag,
sir.

Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who planned the
robbery?

A. Because they were the only ones who were inside the house and far from us and they were
inside the room, sir.

xxx - xxx - xxx

Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena Masinag
together with your companions Danilo Murillo and Purcino?

A. No, sir.

Q. Was there any occasion on the same date that Decena Masinag talk to you?

ATTY. FLORES:

Already answered, your Honor.

COURT:

685
Witness, may answer.

WITNESS:

None, sir. (emphasis ours)9

We find that the foregoing testimony of Dador was not based on his own personal knowledge but from
what Osabel told him. He admitted that he was never near appellant and that he did not talk to her
about the plan when they were at her house on July 15, 1992. Thus, his statements are hearsay and
does not prove appellant's participation in the conspiracy.

Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he
knows of his own personal knowledge, i.e., which are derived from his own perception; otherwise, such
testimony would be hearsay. Hearsay evidence is defined as "evidence not of what the witness knows
himself but of what he has heard from others."10 The hearsay rule bars the testimony of a witness who
merely recites what someone else has told him, whether orally or in writing.11 In Sanvicente v.
People,"12 we held that when evidence is based on what was supposedly told the witness, the same is
without any evidentiary weight for being patently hearsay. Familiar and fundamental is the rule that
hearsay testimony is inadmissible as evidence.13

Osabel's extrajudicial confession is likewise inadmissible against appellant. The res inter allos acta rule
provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of
another.14 Consequently, an extrajudicial confession is binding only upon the confessant and is not
admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual
convenience, a man's own acts are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.15

The rule on admissions made by a conspirator, while an exception to the foregoing, does not apply in
this case. In order for such admission to be admissible against a co-accused, Section 30, Rule 130 of the
Rules of Court requires that there must be independent evidence aside from the extrajudicial confession
to prove conspiracy. In the case at bar, apart from Osabel's extrajudicial confession, no other evidence
of appellant's alleged participation in the conspiracy was presented by the prosecution. There being no
independent evidence to prove it, her culpability was not sufficiently established.

Unavailing also is rule that an extrajudicial confession may be admissible when it is used as a
corroborative evidence of other facts that tend to establish the guilt of his co-accused. The implication
of this rule is that there must be a finding of other circumstantial evidence which, when taken together
with the confession, establishes the guilt of a co-accused beyond reasonable doubt.16 As earlier stated,
there is no other prosecution evidence, direct or circumstantial, which the extrajudicial confession may
corroborate.

In People v. Berroya,17 we held that to hold an accused liable as co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That
overt act may consist of active participation in the actual commission of the crime itself, or it may
consist of moral assistance to his co-conspirators by being present at the time of the commission of the
crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or
implement the conspiracy.

In the case at bar, no overt act was established to prove that appellant shared with and concurred in the
criminal design of Osabel, Dador and Purcino. Assuming that she had knowledge of the conspiracy or she
acquiesced in or agreed to it, still, absent any active participation in the commission of the crime in
furtherance of the conspiracy, mere knowledge, acquiescence in or agreement to cooperate is not
sufficient to constitute one as a party to a conspiracy.18 Conspiracy transcends mere companionship.19

Conspiracy must be proved as convincingly as the criminal act itself. Like any element of the offense
charged, conspiracy must be established by proof beyond reasonable doubt.20 Direct proof of a previous

686
agreement need not be established, for conspiracy may be deduced from the acts of appellant pointing
to a joint purpose, concerted action and community of interest. Nevertheless, except in the case of the
mastermind of a crime, it must also be shown that appellant performed an overt act in furtherance of
the conspiracy.21

All told, the prosecution failed to establish the guilt of appellant with moral certainty. Its evidence falls
short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of
appellant's innocence must be upheld and she must be acquitted.

WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Lucena City,
Branch 60 in Criminal Case No. 92-487, insofar only as it finds appellant guilty beyond reasonable doubt
of the crime of Robbery with Homicide, is REVERSED and SET ASIDE. Appellant Decena Masinag Vda. De
Ramos is ACQUITTED of the crime of Robbery with Homicide. She is ORDERED RELEASED unless there
are other lawful causes for her continued detention. The Director of Prisons is DIRECTED to inform this
Court, within five (5) days from notice, of the date and time when appellant is released pursuant to this
Decision.

SO ORDERED.

Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.

G.R. No. 108253 February 23, 1994

LYDIA L. GERALDEZ, petitioner,

vs.
HON. COURT OF APPEALS and KENSTAR TRAVEL CORPORATION, respondents.

Natividad T. Perez for petitioner.

Bito, Lozada, Ortega & Castillo for private respondent.

REGALADO, J.:

Our tourism industry is not only big business; it is a revenue support of the nation's economy. It has
become a matter of public interest as to call for its promotion and regulation on a cabinet level. We
have special laws and policies for visiting tourists, but such protective concern has not been equally
extended to Filipino tourists going abroad. Thus, with the limited judicial relief available within the
ambit of present laws, our tourists often prefer who fail to deliver on their undertakings. This case
illustrates the recourse of one such tourist who refused to forget.

An action for damages by reason of contractual breach was filed by petitioner Lydia L. Geraldez against
private respondent Kenstar Travel Corporation, docketed as Civil Case No. Q-90-4649 of the Regional
Trial Court of Quezon City, Branch 80.1 After the parties failed to arrive at an amicable settlement, trial
on the merits ensued.

Culling from the records thereof, we find that sometime in October, 1989, Petitioner came to know
about private respondent from numerous advertisements in newspapers of general circulation
regarding tours in Europe. She then contacted private respondent by phone and the latter sent its
representative, Alberto Vito Cruz, who gave her the brochure for the tour and later discussed its
highlights. The European tours offered were classified into four, and petitioner chose the classification
denominated as "VOLARE 3" covering a 22-day tour of Europe for $2,990.00. She paid the total
equivalent amount of P190,000.00 charged by private respondent for her and her sister, Dolores.

Petitioner claimed that, during the tour, she was very uneasy and disappointed when it turned out that,
contrary to what was stated in the brochure, there was no European tour manager for their group of
tourists, the hotels in which she and the group were bullited were not first-class, the UGC Leather

687
Factory which was specifically added as a highlight of the tour was not visited, and the Filipino lady tour
guide by private respondent was a first timer, that is, she was performing her duties and responsibilities
as such for the first time.2

In said action before the Regional Trial Court of Quezon City, petitioner likewise moved for the issuance
of a writ of preliminary attachment against private respondent on the ground that it committed fraud in
contracting an obligation, as contemplated in Section 1(d), Rule 57 of the Rules of Court, to which no
opposition by the latter appears on the record. This was granted by the court a quo3 but the preliminary
attachment was subsequently lifted upon the filing by private respondent of a counterbond amounting
to P990,000.00.4

During the pendency of said civil case for damages, petitioner also filed other complaints before the
Department of Tourism in DOT Case No. 90-121 and the Securities and Exchange Commission in PED
Case No. 90-3738,5 wherein, according to petitioner, herein private respondent was meted out a fine of
P10,000.00 by the Commission and P5,000.00 by the Department,6 which facts are not disputed by
private respondent in its comment on the present petition.

On July 9, 1991, the court a quo rendered its decision7 ordering private respondent to pay petitioner
P500.000.00 as moral damages, P200,000.00 as nominal damages, P300,000.00 as exemplary damages,
P50,000.00 as and for attorney's fees, and the costs of the suit.8 On appeal, respondent court9 deleted
the award for moral and exemplary damages, and reduced the awards for nominal damages and
attorney's fees to P30,000.00 and P10,000.00, respectively. 10

Hence, the instant petition from which, after sifting through the blades of contentions alternately thrust
and parried in the exchanges of the parties, the pivotal issue that emerges is whether or not private
respondent acted in bad faith or with gross negligence in discharging its obligations under the contract.

Both the respondent court and the court a quo agree that private respondent failed to comply faithfully
with its commitments under the Volare 3 tour program, more particularly in not providing the members
of the tour group with a European tour manger whose duty, inter alia, was to explain the points of
interest of and familiarize the tour group with the places they would visit in Europe, and in assigning
instead a first timer Filipino tour guide, in the person of Rowena Zapanta, 11 to perform that role which
definitely requires experience and knowledge of such places. It is likewise undisputed that while the
group was able to pay a visit to the site of the UGC Leather Factory, they were brought there at a very
late hour such that the factory was already closed and they were unable to make purchases at
supposedly discounted prices. 12 As to the first-class hotels, however, while the court a quo found that
the hotels were not fist-class, respondent court believed otherwise, or that, at least, there was
substantial compliance with such a representation.

While clearly there was therefore a violation of the rights of petitioner under the aforementioned
circumstances, respondent court, contrary to the findings of the trial court, ruled that no malice or bad
faith could be imputed to private respondent, hence there is no justification for the award of moral and
exemplary damages. Furthermore, it held that while petitioner is entitled to nominal damages, the
amount awarded by the trial court was unconscionable since petitioner did not suffer actual or
substantial damage from the breach of contract, 13 hence its reduction of such award as hereinbefore
stated.

After thorough and painstaking scrutiny of the case records of both the trial and appellate courts, we are
satisfactorily convinced, and so hold, that private respondent did commit fraudulent misrepresentations
amounting to bad faith, to the prejudice of petitioner and the members of the tour group.

By providing the Volare 3 tourist group, of which petitioner was a member, with an inexperienced and a
first timer tour escort, private respondent manifested its indifference to the convenience, satisfaction
and peace of mind of its clients during the trip, despite its express commitment to provide such facilities
under the Volare 3 Tour Program which had the grandiose slogan "Let your heart sing. 14

Evidently, an inexperienced tour escort, who admittedly had not even theretofore been to
Europe, 15 cannot effectively acquaint the tourists with the interesting areas in the cities and places

688
included in the program, or to promptly render necessary assistance, especially where the latter are
complete strangers thereto, like witnesses Luz Sui Haw and her husband who went to Europe for their
honeymoon. 16

We agree with petitioner that the selection of Zapanta as the group's tour guide was deliberate and
conscious choice on the part of private respondent in order to afford her an on-the-job training and
equip her with the proper opportunities so as to later qualify her as an "experienced" tour guide and
eventually be an asset of respondent corporation. 17 Unfortunately, this resulted in a virtual project
experimentation with petitioner and the members of the tour as the unwitting participants.

We are, therefore, one with respondent court in faulting private respondent's choice of Zapanta as a
qualified tour guide for the Volare 3 tour package. It brooks no argument that to be true to its
undertakings, private respondent should have selected an experienced European tour guide, or it could
have allowed Zapanta to go merely as an understudy under the guidance, control and supervision of an
experienced and competent European or Filipino tour guide, 18 who could give her the desired training.

Moreover, a tour guide is supposed to attend to the routinary needs of the tourists, not only when the
latter ask for assistance but at the moment such need becomes apparent. In other words, the tour guide,
especially by reason of her experience in previous tours, must be able to anticipate the possible needs
and problems of the tourists instead of waiting for them to bring it to her attention. While this is stating
the obvious, it is her duty to see to it that basic personal necessities such as soap, towels and other daily
amenities are provided by the hotels. It is also expected of her to see to it that the tourists are provided
with sanitary surroundings and to actively arrange for medical attention in case of accidents, as what
befell petitioner's sister and wherein the siblings had to practically fend for themselves since, after
merely calling for an ambulance, Zapanta left with the other tour participants. 19

Zapanta fell far short of the performance expected by the tour group, her testimony in open court being
revelatory of her inexperience even on the basic function of a tour guide, to wit:

Q Now, are you aware that there were times that the tourists under the
"Volare 3" were not provided with soap and towels?

A They did not tell me that but I was able to ask them later on but then
nobody is complaining. 20 . . . .

The inability of the group to visit the leather factory is likewise reflective of the neglect and ineptness of
Zapanta in attentively following the itinerary of the day. This incompetence must necessarily be traced
to the lack of due diligence on the part of private respondent in the selection of its employees. It is true
that among the thirty-two destinations, which included twenty-three cities and special visits to nine
tourist spots, this was the only place that was not visited. 21 It must be noted, however, that the visit to
the UGC Leather Factory was one of the highlights 22 of the Volare 3 program which even had to be
specifically inserted in the itinerary, hence it was incumbent upon the organizers of the tour to take
special efforts to ensure the same. Besides, petitioner did expect much from the visit to that factory
since it was represented by private respondent that quality leather goods could be bought there at
lower prices. 23

Private respondent represents Zapanta's act of making daily overseas calls to Manila as an exercise of
prudence and diligence on the latter's part as a tour guide. 24 It further claims that these calls were
needed so that it could monitor the progress of the tour and respond to any problem
immediately. 25 We are not persuaded. The truth of the matter is that Zapanta, as an inexperienced
trainee-on-the-job, was required to make these calls to private respondent for the latter to gauge her
ability in coping with her first assignment and to provide instructions to her. 26

Clearly, therefore, private respondent's choice of Zapanta as the tour guide is a manifest disregard of its
specific assurances to the tour group, resulting in agitation and anxiety on their part, and which
deliberate omission is contrary to the elementary rules of good faith and fair play. It is extremely
doubtful if any group of Filipino tourists would knowingly agree to be used in effect as guinea pigs in an

689
employees' training program of a travel agency, to be conducted in unfamiliar European countries with
their diverse cultures, lifestyles and languages.

On the matter of the European tour manager, private respondent's advertisement in its tour contract
declares and represents as follows:

FILIPINO TOUR ESCORT!

He will accompany you throughout Europe. He speaks your language, shares your
culture and feels your excitement.

He won't be alone because you will also be accompanied by a . . .

EUROPEAN TOUR MANAGER!

You get the best of both worlds. Having done so may tours in the past with people like
you, he knows your sentiments, too. So knowledgeable about Europe, there is hardly a
question he can't answer. 27

Private respondent contends that the term "European Tour Manager" does not refer to an individual but
to an organization, allegedly the Kuoni Travel of Switzerland which supposedly prepared the itinerary for
its "Volare Europe Tour," negotiated with all the hotels in Europe, selected tourist spots and historical
places to visit, and appointed experienced local tour guides for the tour group. 28

We regret this unseemly quibbling which perforce cannot be allowed to pass judicial muster.

A cursory reading of said advertisement will readily reveal the express representation that the
contemplated European tour manager is a natural person, and not a juridical one as private respondent
asserts. A corporate entity could not possibly accompany the members of the tour group to places in
Europe; neither can it answer questions from the tourists during the tour. Of course, it is absurd that if a
tourist would want to know how he could possibly go to the nearest store or supermarket, he would still
have to call Kuoni Travel of Switzerland.

Furthermore, both lower courts observed, and we uphold their observations, that indeed private
respondent had the obligation to provide the tour group not only with a European tour manger, but also
with local European tour guides. The latter, parenthetically, were likewise never made
available. 29 Zapanta claims that she was accompanied by a European local tour guide in most of the
major cities in Europe. We entertain serious doubts on, and accordingly reject, this pretension for she
could not even remember the name of said European tour guide. 30 If such a guide really existed, it is
incredible why she could not even identify the former when she testified a year later, despite the length
of their sojourn and the duration of their association.

As to why the word "he" was used in the aforequoted advertisement, private respondent maintains that
the pronoun "he" also includes the word "it," as where it is used as a "nominative case form in general
statements (as in statutes) to include females, fictitious persons (as corporations)." 31 We are
constrained to reject this submission as patently strained and untenable. As already demonstrated, it is
incredible that the word "he" was used by private respondent to denote an artificial or corporate being.
From its advertisement, it is beyond cavil that the import of the word "he" is a natural and not a juridical
person. There is no need for further interpretation when the wordings are clear. The meaning that will
determine the legal effect of a contract is that which is arrived at by objective standards; one is bound,
not by what he subjectively intends, but by what he leads others reasonably to think he intends. 32

In an obvious but hopeless attempt to arrive at a possible justification, private respondent further
contends that it explained the concept of a European tour manager to its clients at the pre-departure
briefing, which petitioner did not attend. 33 Significantly, however, private respondent failed to present
even one member of the tour group to substantiate its claim. It is a basic rule of evidence that a party
must prove his own affirmative allegations. 34 Besides, if it was really its intention to provide a juridical

690
European tour manager, it could not have kept on promising its tourists during the tour that a European
tour manager would come, 35 supposedly to join and assist them.

Veering to another line of defense, private respondent seeks sanctuary in the delimitation of its
responsibility as printed on the face of its brochure on the Volare 3 program, to wit:

RESPONSIBILITIES: KENSTAR TRAVEL CORPORATION, YOUR TRAVEL AGENT, THEIR

EMPLOYEES OR SUB-AGENTS SHALL BE RESPONSIBLE ONLY FOR BOOKING AND MAKING
ARRANGEMENTS AS YOUR AGENTS. Kenstar Travel Corporation, your travel Agent, their
employees or sub-agents assume no responsibility or liability arising out of or in
connection with the services or lack of services, of any train, vessel, other conveyance or
station whatsoever in the performance of their duty to the passengers or guests, neither
will they be responsible for any act, error or omission, or of any damages, injury, loss,
accident, delay or irregularity which may be occasioned by reason (of) or any defect
in . . . lodging place or any facilities . . . . (Emphasis by private respondent.) 36

While, generally, the terms of a contract result from the mutual formulation thereof by the parties
thereto, it is of common knowledge that there are certain contracts almost all the provisions of which
have been drafted by only one party, usually a corporation. Such contracts are called contracts of
adhesion, because the only participation of the party is the affixing of his signature or his "adhesion"
thereto. 37 In situations like these, when a party imposes upon another a ready-made form of
contract, 38 and the other is reduced to the alternative of taking it or leaving it, giving no room for
negotiation and depriving the latter of the opportunity to bargain on equal footing, a contract of
adhesion results. While it is true that an adhesion contract is not necessarily void, it must nevertheless
be construed strictly against the one who drafted the same. 39 This is especially true where the
stipulations are printed in fine letters and are hardly legible as is the case of the tour contract 40 involved
in the present controversy.

Yet, even assuming arguendo that the contractual limitation aforequoted is enforceable, private
respondent still cannot be exculpated for the reason that responsibility arising from fraudulent acts, as
in the instant case, cannot be stipulated against by reason of public policy. Consequently, for the
foregoing reasons, private respondent cannot rely on its defense of "substantial compliance" with the
contract.

Private respondent submits likewise that the tour was satisfactory, considering that only petitioner, out
of eighteen participants in the Volare 3 Tour Program, actually complained. 41 We cannot accept this
argument. Section 28, Rule 130 of the Rules of Court declares that the rights of a party cannot be
prejudiced by an act, declaration, or omission of another, a statutory adaptation of the first branch of
the hornbook rule of res inter alios acta 42 which we do not have to belabor here.

Besides, it is a commonly known fact that there are tourists who, although the tour was far from what
the tour operator undertook under the contract, choose to remain silent and forego recourse to a suit
just to avoid the expenses, hassle and rancor of litigation, and not because the tour was in accord with
was promised. One does not relish adding to the bitter memory of a misadventure the unpleasantness
of another extended confrontation. Furthermore, contrary to private respondent's assertion, not only
petitioner but two other members of the tour group, Luz Sui Haw and Ercilla Ampil, confirmed
petitioner's complaints when they testified as witnesses for her as plaintiff in the court below. 43

Private respondent likewise committed a grave misrepresentation when it assured in its Volare 3 tour
package that the hotels it had chosen would provide the tourists complete amenities and were
conveniently located along the way for the daily itineraries. 44 It turned out that some of the hotels were
not sufficiently equipped with even the basic facilities and were at a distance from the cities covered by
the projected tour. Petitioner testified on her disgust with the conditions and locations of the hotels,
thus:

Q And that these bathrooms ha(ve) bath tub(s) and hot and cold
shower(s)?

691
 A Not all, sir.

Q Did they also provide soap and towels?

A Not all, sir, some (had) no toilet paper. 45

Q Which one?

A The 2 stars, the 3 stars and some 4 stars (sic) hotels.

Q What I am saying . . .

A You are asking a question? I am answering you. 2 stars, 3 stars and

some 4 stars (sic) hotels, no soap, toilet paper and (the) bowl
stinks. . . .

xxx xxx xxx

Q And that except for the fact that some of these four star hotels were
outside the city they provided you with the comfort?

A Not all, sir.

Q Can you mention some which did not provide you that comfort?

A For example, if Ramada Hotel Venezia is in Quezon City, our hotel is in

Meycauayan. And if Florence or Ferenze is in manila, our hotel is in
Muntinlupa. 46

xxx xxx xxx

A One more hotel, sir, in Barcelona, Hotel Saint Jacques is also outside
the city. Suppose Barcelona is in Quezon City, our hotel is in Marilao.
We looked for this hotel inside the city of Barcelona for three (3) hours.
We wasted our time looking for almost all the hotels and places where
to eat. That is the kind of tour that you have. 47

Luz Sui Haw, who availed of the Volare 3 tour package with her husband for their honeymoon, shared
the sentiments of petitioner and testified as follows:

Q . . . Will you kindly tell us why the hotels where you stayed are not
considered first class hotels?

A Because the hotels where we went, sir, (are) far from the City and the
materials used are not first class and at times there were no towels and
soap. And the two (2) hotels in Nevers and Florence the conditions (are)
very worse (sic). 48

Q Considering that you are honeymooners together with your husband,

what (were) your feelings when you found out that the condition were
not fulfilled by the defendant?

A I would like to be very honest. I got sick when I reached Florence and
half of my body got itch (sic). I think for a honeymooner I would like to
emphasize that we should enjoy that day of our life and it seems my
feet kept on itching because of the condition of the hotel. And I was so
dissatisfied because the European Tour Manager was not around there
(were) beautiful promises. They kept on telling us that a European Tour

692
 Manager will come over; until our Paris tour was ended there was no
European tour manager. 49

xxx xxx xxx

Q You will file an action against the defendant because there was a
disruption of your happiness, in your honeymoon, is that correct?

A That is one of my causes of (sic) coming up here. Secondly, i was very

dissatisfied (with) the condition. Thirdly, that Volare 89 it says it will let
your heart sing. That is not true. There was no European tour (manager)
and the highlights of the tour (were) very poor. The hotels were worse
(sic) hotels. 50

Q All the conditions of the hotels as you . . .

A Not all but as stated in the brochure that it is first class hotel. The first
class hotels state that all things are beautiful and it is neat and clean
with complete amenities and I encountered the Luxembourg hotel
which is quite very dilapidated because of the flooring when you step
on the side "kumikiring" and the cabinets (are) antiques and as
honeymooners we don't want to be disturbed or seen. 51

xxx xxx xxx

Q None of these are first class hotels?

A Yes, sir.

Q So, for example Ramada Hotel Venezia which according to Miss

Geraldez is first class hotel is not first class hotel?

A Yes, sir.

Q You share the opinion of Miss Geraldez?

A Yes, sir.

Q The same is true with Grand Hotel Palatino which is not a first class
hotel?

A Yes, sir.

Q And Hotel Delta Florence is not first class hotel?

A That is how I got my itch, sir. Seven (7) days of itch.

Q How about Hotel Saint-Jacquez, Paris?

A It is far from the city. It is not first class hotel.

Q So with Hotel Le Prieure Du Coeur de Jesus neither a first class hotel?

A Yes, sir.

Q Hotel De Nevers is not a first class hotel?

A Yes, sir.

693
 Q Hotel Roc Blanc Andorra is not a first class hotel?

A Yes, sir.

Q Saint Just Hotel, Barcelona is not a first class hotel?

A Yes, sir.

Q Hotel Pullman Nice neither is not a first class hotel?

A Yes, sir.

Q Hotel Prinz Eugen and Austrotel are not first class hotels?

A Yes, sir. 52

Private respondent cannot escape responsibility by seeking refuge under the listing of first-class hotels
in publications like the "Official Hotel and Resort Guide" and Worldwide Hotel Guide." 53 Kuoni Travel, its
tour operator, 54 which prepared the hotel listings, is a European-based travel agency 55 and, as such,
could have easily verified the matter of first-class accommodations. Nor can it logically claim that the
first-class hotels in Europe may not necessarily be the first-class hotels here in the Philippines. 56 It is
reasonable for petitioner to assume that the promised first-class hotels are equivalent to what are
considered first-class hotels in Manila. Even assuming arguendo that there is indeed a difference in
classifications, it cannot be gainsaid that a first-class hotel could at the very least provide basic
necessities and sanitary accommodations. We are accordingly not at all impressed by private
respondent's attempts to trivialize the complaints thereon by petitioner and her companions.

In a last ditch effort to justify its choice of the hotels, private respondent contends that it merely
provided such "first class" hotels which are commensurate to the tourists budget, or which were, under
the given circumstances, the "best for their money." It postulated that it could not have offered better
hostelry when the consideration paid for hotel accommodations by the tour participants was only so
much,57 and the tour price of $2,990.00 covers a European tour for 22 days inclusive of lower room rates
and meals. 58 this is implausible, self-serving and borders on sophistry.

The fact that the tourists were to pay a supposedly lower amount, such that private respondent
allegedly retained hardly enough as reasonable profit, 59 does not justify a substandard form of service
in return. It was private respondent, in the first place, which fixed the charges for the package tour and
determined the services that could be availed of corresponding to such price. Hence, it cannot now be
heard to complain that it only made a putative marginal profit out of the transaction. if it could not
provide the tour participants with first-class lodgings on the basis of the amount that they paid, it could
and should have instead increased the price to enable it to arrange for the promised first-class
accommodations.

On the foregoing considerations, respondent court erred in deleting the award for moral and exemplary
damages. Moral damages may be awarded in breaches of contract where the obligor acted fraudulently
or in bad faith. 60 From the facts earlier narrated, private respondent can be faulted with fraud in the
inducement, which is employed by a party to a contract in securing the consent of the other.

This fraud or dolo which is present or employed at the time of birth or perfection of a contract may
either be dolo causante or dolo incidente. The first, or causal fraud referred to in Article 1338, are those
deceptions or misrepresentations of a serious character employed by one party and without which the
other party would not have entered into the contract. Dolo incidente, or incidental fraud which is
referred to in Article 1344, are those which are not serious in character and without which the other
party would still have entered into the contract. 61 Dolo causante determines or is the essential cause of
the consent, while dolo incidente refers only to some particular or accident of the
obligations. 62 The effects of dolo causante are the nullity of the contract and the indemnification of
damages, 63 and dolo incidente also obliges the person employing it to pay damages. 64

694
In either case, whether private respondent has committed dolo causante or dolo incidente by making
misrepresentations in its contracts with petitioner and other members of the tour group, which
deceptions became patent in the light of after-events when, contrary to its representations, it employed
an inexperienced tour guide, housed the tourist group in substandard hotels, and reneged on its
promise of a European tour manager and the visit to the leather factory, it is indubitably liable for
damages to petitioner.

In the belief that an experienced tour escort and a European tour manager would accompany them,
with the concomitant reassuring and comforting thought of having security and assistance readily at
hand, petitioner was induced to join the Volare 3 tourists, instead of travelling alone 65 She likewise
suffered serious anxiety and distress when the group was unable to visit the leather factory and when
she did not receive first-class accommodations in their lodgings which were misrepresented as first-class
hotels. These, to our mind, justify the award for moral damages, which are in the category of an award
designed to compensate the claimant for that injury which she had suffered, and not as a penalty on the
wrongdoer, 66 we believe that an award of P100,000.00 is sufficient and reasonable.

When moral damages are awarded, especially for fraudulent conduct, exemplary damages may also be
decreed. Exemplary damages are imposed by way of example or correction for the public good, in
addition to moral, temperate, liquidated or compensatory damages. According to the code Commission,
exemplary damages are required by public policy, for wanton acts must be suppressed. 67 An award,
therefore, of P50,000.00 is called for to deter travel agencies from resorting to advertisements and
enticements with the intention of realizing considerable profit at the expense of the public, without
ensuring compliance with their express commitments. While, under the present state of the law,
extraordinary diligence is not required in travel or tour contracts, such as that in the case at bar, the
travel agency acting as tour operator must nevertheless be held to strict accounting for contracted
services, considering the public interest in tourism, whether in the local or in the international scene.
Consequently, we have to likewise reject the theory of private respondent that the promise it made in
the tour brochure may be regarded only as "commendatory trade talk." 68

With regard to the honorarium for counsel as an item of damages, since we are awarding moral and
exemplary damages, 69 and considering the legal importance of the instant litigation and the efforts of
counsel evident from the records of three levels of the judicial hierarchy, we favorably consider the
amount of P20,000.00 therefor.

WHEREFORE, premises considered, the decision of respondent Court of Appeals is hereby SET ASIDE,
and another one rendered, ordering private respondent Kenstar Travel Corporation to pay petitioner
Lydia L. Geraldez the sums of P100,000.00 by way of moral damages, P50,000.00 as exemplary damages,
and P20,000.00 as and for attorney's fees, with costs against private respondent. The award for nominal
damages is hereby deleted.

Padilla, Nocon and Puno, JJ., concur.

Narvasa, C.J., took no part.

G.R. No. 119005 December 2, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
SABAS RAQUEL, VALERIANO RAQUEL and AMADO PONCE, accused.

SABAS RAQUEL and VALERIANO RAQUEL, accused-appellants.

REGALADO, J.:p

695
The court a quo found herein accused-appellants Sabas Raquel and Valeriano Raquel, as well as
accused Amado Ponce, guilty of the crime of robbery with homicide and sentenced them to
suffer the penalty of reclusion perpetua, to pay the heirs of Agapito Gambalan, Jr. the sum of
P50,000.00 as indemnity for his death, and the amount of P1,500.00 representing the value of
the stolen revolver. 1 The Raquel brothers now plead for their absolution in this appellate review.

In an information dated August 27, 1986, the aforementioned accused were indicted for
robbery with homicide before the Regional Trial Court of Kabacan, Cotabato, Branch
16, 2 allegedly committed on July 4, 1986 in Barangay Osias of the Municipality of Kabacan.

Upon arraignment thereafter, all the accused pleaded not guilty. While trial was in progress,
however, and before he could give his testimony, accused Amado Ponce escaped from jail. 3

The factual antecedents of the case for the People, as borne out by the evidence of record and
with page references to the transcripts of the court hearings, are summarized by the Solicitor
General in the appellee's brief:

At midnight of July 4, 1986, tragedy visited the peaceful lives of spouses Juliet and
Agapito Gambalan, Jr. Thinking of a neighbor in need, Agapito attended to the person
knocking at the backdoor of their kitchen. Much to his surprise, heavily armed men
emerged at the door, declared a hold-up and fired their guns at him. (pp. 4-6, TSN,
January 25, 1988)

Juliet went out of their room after hearing gunshots and saw her husband's lifeless (sic)
while a man took her husband's gun and left hurriedly. (p. 7, ibid.)

She shouted for help at their window and saw a man fall beside their water pump while
two (2) other men ran away. (p. 9, ibid.)

George Jovillano responded to Juliet's plea for help. He reported the incident to the
police. The police came and found one of the perpetrators of the crime wounded and
lying at about 8 meters from the victim's house. He was identified as Amado Ponce. (pp.
5-7, TSN, October 21, 1987; pp. 8-9, TSN, March 21, 1988)

Amado Ponce was first treated at a clinic before he was brought to the police station. (p.
27, ibid.)

Amado Ponce revealed to P/Sgt. Andal S. Pangato that appellants Sabas and Valeriano
Raquel were the perpetrators of the crime and that they may be found in their
residence. However, the police failed to find them there since appellants fled
immediately after the shooting incident. (pp. 12-14, ibid.)

Appellants were later on apprehended on different occasions. (pp. 5-6, TSN, April 2,
1991) 4

Upon the other hand, appellants relied on alibi as their defense, on the bases of facts which are
presented in their brief in this wise:

Accused Valeriano Raquel testified that on July 2, 1986, with the permission of his
parents he left Paatan, Kabacan, Cotabato and went to Tunggol Pagalungan,
Maguindanao. He stayed in the house of his sister-in-law, the wife of his deceased
brother. Together with Boy Madriaga and Corazon Corpuz, he harvested palay on July 3
and 4. On July 5, while he was still asle(ep), police authorities accompanied by his father
arrested him and brought him to the municipal jail of Kabacan, Cotabato. He already
heard the name of accused Amado Ponce, to be an owner of a parcel of land in Paatan.

696
 On cross-examination, he admitted that their house and that of Gambalan are located in
the same Barangay. Before July 4, he entertained no grudge against victim Agapito
Gambalan. (TSN, April 2, 1991, pp. 2-20).

Antonio Raquel, 64 years old, testified that on July 2, 1986 he was at home when his son
Valeriano Raquel told him that he was going to Tungol, Pagalungan, Maguindanao to
harvest palay. On (the) same date, his other son, Sabas Raquel, also asked his
permission to leave since the latter, a soldier, was going to his place of assignment at
Pagadian. On July 5, 1986, several policemen came over to his house, looking for his two
(2) sons. He gave them pictures of his sons and even accompanied them to Tungol
where they arrested his son Valeriano. (TSN, April 3, 1991, pp. 3-26).

T/Sgt. Natalio Zafra, of the 102 Brigade, Aurora, Zamboanga, testified that on July 4,
1986, he was assigned in the 2nd Infantry Battalion, First Infantry Division, Maria
Cristina, Iligan City. Sabas Raquel was under his division then, and was on duty on July 4,
1986. (TSN, Nov. 6, 1992, pp. 2-20). 5

On August 10, 1993, the trial court, as stated at the outset, rendered judgment finding all of the
accused guilty beyond reasonable doubt of the crime charged and sentenced them
accordingly. 6

Not satisfied therewith, herein appellants filed a notice of appeal wherein they manifested that
they were appealing the decision to the Court of Appeals. 7 The lower court ordered the
transmittal of the records of the case to the Court of Appeals. 8 In view of the penalty imposed,
the Court of Appeals properly forwarded the same to us. 9

Before us, the defense submits a lone assignment of error, i.e., that the trial court erred in
convicting accused Sabas Raquel and Valeriano Raquel of the crime charged, despite absence of
evidence positively implicating them as the perpetrators of the crime.

We find such submission to be meritorious. A careful review and objective appraisal of the
evidence convinces us that the prosecution failed to establish beyond reasonable doubt the real
identities of the perpetrators of, much less the participation of herein appellants in, the crime
charged.

The lone eyewitness, Juliet Gambalan, was not able to identify the assailants of her husband. In
her testimony on direct examination in court she declared as follows:

Q: You said you shouted right after the incident and pip (sic) at the
window, did you see any when you pip (sic) at the window?

A; Yes, sir.

Q: What did you see if you were able to see anything?

A: I saw a person who fel(l) down beside the water pump and I saw
again two (2) persons who were running away, sir.

Q: Were you able to identify this persons who fel(l) down near the
jetmatic pump and two (2) persons running away?

xxx xxx xxx

Q: Now, you said somebody fel(l) down near the jetmatic pump, who is
this person?

A: I do not know sir. I have known that he was Amado Ponce when the
Police arrived. 10 (emphasis ours.)

697
 On cross-examination she further testified:

Q: For the first time when you shouted for help, where were you?

A: I was at the Veranda sir and I started shouting while going to our
room.

Q: In fact you have no way (of) identifying that one person who was
mask(ed) and got the gun of your husband because he was mask(ed), is
that not right?

A: Yes, sir.

Q: In fact, you saw only this one person got inside to your house and got
this gun?

A: Yes, sir.

Q: And this Amado Ponce cannot be the person who have got this gun
inside?

FISCAL DIZON:

Already answered.

She was not able to identify, your Honor.

Q: You only saw this Amado Ponce when (h)e was presented to you by
the police, is that right?

A: Yes, sir. 11

xxx xxx xxx

Q: You testified in direct testimony you pip (sic) in jalousie after you
shouted for help and you saw two (2) person(s) running, is that right?

A: Yes, sir.

Q: Now, you saw these persons running on the road, is that not right?

A: I saw them running sir going around.

Q: These two (2) persons were running going around?

A: They were running towards the road.

ATTY. DIVINO:

Going to the road.

Q: And you cannot identify these two (2) persons running towards the
road?

A: No, sir. 12 (Emphases supplied.)

698
Even the corroborating witness, George Jovillano, in his testimony made no mention of who
shot Agapito Gambalan. In fact, in his sworn statement executed in the Investigation Section of
the Kabacan Police Station on July 5, 1986, he declared that:

19Q: By the way, when you saw three persons passing about 5 meters
away from where you were then drinking, what have you noticed about
them, if you ever noticed any?

A: I noticed that one of the men ha(d) long firearm which was partly
covered by a maong jacket. The other one wore a hat locally known as
"kipis" meaning a hat made of cloth with leaves protruding above the
forehead and seemed to be holding something which I failed to
recognize. The other one wore a shortpant with a somewhat white T-
shirt with markings and there was a white T-shirt covering his head and
a part of his face as he was head-down during that time.

20Q: Did you recognized any of these men?

A: No. Because they walked fast. 13 (Emphasis supplied.)

A thorough review of the records of this case readily revealed that the identification of herein
appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado
Ponce pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused
escaped from jail before he could testify in court and he has been at large since then.

The extrajudicial statements of an accused implicating a co-accused may not be utilized against
the latter, unless these are repeated in open court. If the accused never had the opportunity to
cross-examine his co-accused on the latter's extrajudicial statements, it is elementary that the
same are hearsay as against said accused. 14 That is exactly the situation, and the disadvantaged
plight of appellants, in the case at bar.

Extreme caution should be exercised by the courts in dealing with the confession of an accused
which implicates his co-accused. A distinction, obviously, should be made between extrajudicial
and judicial confessions. The former deprives the other accused of the opportunity to cross-
examine the confessant, while in the latter his confession is thrown wide open for cross-
examination and rebuttal. 15

The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act,
declaration, or omission of another. An extrajudicial confession is binding only upon the
confessant and is not admissible against his co-accused. The reason for the rule is that, on a
principle of good faith and mutual convenience, a man's own acts are binding upon himself, and
are evidence against him. So are his conduct and declarations. Yet it would not only be rightly
inconvenient, but also manifestly unjust, that a man should be bound by the acts of mere
unauthorized strangers; and if a party ought not to be bound by the acts of strangers, neither
ought their acts or conduct be used as evidence against him. 16

Although the above-stated rule admits of certain jurisprudential exceptions, 17 those exceptions
do not however apply to the present case.

Firstly, except for that extrajudicial statement of accused Amado Ponce, there exists no
evidence whatsoever linking appellants to the crime. In fact, the testimony of police Sgt. Andal S.
Pangato that appellant Sabas Raquel was wounded and went to the clinic of Dr. Anulao for
treatment using the name Dante Clemente, 18 was negated by Dr. Anulao himself who testified
that he treated no person by the name of Danny Clemente. 19

Secondly, this extrajudicial statement, ironically relied upon as prosecution evidence, was made
in violation of the constitutional rights of accused Amado Ponce. This was unwittingly admitted

699
 in the testimony of the same Sgt. Andal S. Pangato who was the chief of the intelligence and
investigation section of their police station:

Q: During the investigation did you inform him (of) his constitutional
right while on the process of investigation?

A: No sir, because my purpose was only to get the information from

him . . . And after that I checked the information that he gave.

Q: Of course, you know very well that the accused should be assisted by
counsel?

A: What I know is if when a person is under investigation you have in

mind to investigate as to against (sic) him, and you have to inform his
constitutional right but if the purpose is to interrogate him to acquire
information which will lead to the identity of the other accused we do
not need to inform him.

Q: Don't you know that under the case of PP vs. Galit; the accused
should be (re)presented by counsel that is the ruling of the Supreme
Court?

A: I do not know if it is actually the same as this case.

Q: But it is a fact that you did not even inform him (of) his right?

A: No sir.

Q: At the time when you asked him he has no counsel.

A: No counsel, Sir. 20

Extrajudicial statements made during custodial investigation without the assistance of counsel
are inadmissible and cannot be considered in the adjudication of the case. While the right to
counsel may be waived, such waiver must be made with the assistance of counsel. 21 These
rights, both constitutional and statutory in source and foundation, were never observed.

A conviction in a criminal case must rest on nothing less than a moral certainty of
guilt. 22 Without the positive identification of appellants, the evidence of the prosecution is not
sufficient to overcome the presumption of innocence guaranteed by the Bill of Rights to
them. 23 While admittedly the alibi of appellants may be assailable, the evidence of the
prosecution is probatively low in substance and evidentiarily barred in part. The prosecution
cannot use the weakness of the defense to enhance its case; it must rely on the strength of its
own evidence. In fact, alibi need not be inquired into where the prosecution's evidence is
weak. 24

It would not even have been necessary to stress that every reasonable doubt in criminal cases
must be resolved in favor of the accused. The requirement of proof beyond reasonable doubt
calls for moral certainty of guilt. In the instant case, the test of moral certainty was neither met
nor were the standards therefor fulfilled.

WHEREFORE, on reasonable doubt, the appealed judgment is REVERSED and accused-appellants

Sabas Raquel and Valeriano Raquel are hereby ACQUITTED of the offense charged, with costs de
oficio.

SO ORDERED.

Romero, Puno, Mendoza and Torres, Jr., JJ., concur.

700
G.R. No. 106210-11. January 30, 1998

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ROBERTO RAMBO LISING, RODOLFO MANALILI,

FELIMON GARCIA, ENRICO DIZON and ROBIN MANGA, Accused-Appellants.

DECISION

KAPUNAN, J.:

The parents of Cochise and Beebom must have lifted their sorrowful faces heavenward and blurted out
an anguished cry: Oh God! Why must it be they, so young, so loving, so beautiful and so promising, to be
brutally snatched from our embrace and never to be seen again?

Conchise, whose full name was Ernesto Bernabe II, was 26 years old on the fateful day of April 26, 1990
and Ana Lourdes Castaos, or Beebom to her family and friends, was 22. Cochise had just graduated from
the University of the Philippines with a degree of Bachelor of Laws and was reviewing for the bar
examinations, while Beebom was a graduating student at the College of Mass Communications from the
same university. Both excelled in academic and extra-curricular activities.

The senseless and gruesome killing of the young man and woman, both full of promise, horrifies us. But
what makes this crime more despicable in our eyes is the involvement of people sworn to uphold the
law.

For the crimes for which they were charged and sentenced, appellants now come to this Court asking us
to give their case a second look, insisting on their innocence.

Sometime in March, 1990, Rodolfo Manalili, a businessman asked Felimon Garcia, his townmate, if he
knew somebody who could allegedly effect the arrest of one Robert Herrera, the suspect in the killing of
his brother, Delfin Manalili.

Felimon Garcia said he knew one and arranged a meeting with him.

On April 21, 1990, Felimon Garcia called up Manalili and informed him that he already contacted a
policeman to help him and said that the policeman wanted to talk to him. So an appointment was set at
12:00 p.m. of April 22, 1990 at Dau Exit, North Expressway, Mabalacat, Pampanga.

On said date Manalili, together with his son Richard, arrived at the Dau Exit at about 12:30 p.m. of April
22, 1990. Felimon Garcia was already there waiting for Manalili.

They proceeded to the Golden Palace Chinese Restaurant where they would meet Roberto Lising. They,
however, had to change venue because Roberto Lisings live-in partner, Ligaya Faustino and other
companions were in the restaurant. So they went instead to a nearby carinderia and instructed Felimon
Garcia to follow them there.

Shortly, Felimon Garcia arrived and introduced Roberto Lising, Enrico Dizon and another man armed
with a service pistol to Manalili. During the meeting, Manalili gave them P2,000.00 and instructed them
to go and see Vic Nabua,* his employee who will point to them the person to be arrested.

On April 23-24, Lisings group went to Quezon City and met Vic Lisboa. They conducted a surveillance on
the Castaos residence in the hope of seeing Herrera. Failing to do so, the group was asked to come back
the next day.

On April 25, the same group arrived at the vicinity of the Castaos residence at around 5:00 p.m. to
resume their surveillance. Two hours later, Lisboa alerted the group after allegedly spotting Herrera
entering the Castaos residence.

701
Later, the group saw a man and a woman who happened to be Cochise and Beebom leave the Castaos
residence in a green box type Lancer car. The group followed the Lancer car with Lising, Dizon and
Manga riding in a black car and Lisboa and Garcia in a motorcycle.

The Lancer car went to Dayrits Ham and Burger House on Timog Circle, Quezon City where the couple
intended to have dinner. Alighting from the car, they were accosted by Dizon and Manga who were both
carrying firearms. Amidst protestations, Dizon poked his gun at Cochise, handcuffed him, and shoved
him into the car. Beebom protested loudly at the arrest and was also shoved into the back of the car.

The young couples failure to go home that night and the next day alarmed their parents, so a search was
then initiated by close friends and relatives - inquiring from hospitals, restaurants, friends houses and
possible places where the couple would go.

One group chanced upon Dayrits Ham and Burger House where they were told that a couple who fitted
their descriptions were taken by three (3) men believed to be from the military in the evening of April 25,
1990.

The abduction of Cochise and Beebom hit the front pages. Appeals by the parents to locate them
reached the authorities where all possible angles of their disappearance were explored but there were
no significant leads. After about two (2) months of futile search for their whereabouts, a break came on
June 21, 1990 when two (2) security guards working in a Shellane Warehouse in San Fernando,
Pampanga went to see Ms. Rosie Bernabe at her Pasay City Hall office and had information concerning
her son, Cochise. Mrs. Bernabe referred the two guards to the CAPCOM who interviewed them.

The two guards told the CAPCOM that their friends Raul Morales and Jun Medrano, both employees of
Roberto Lising, informed them that Lising killed a mestisuhin man and a woman in their warehouse.

On June 23, 1990, Raul Morales was picked up and told his story. In a sworn statement executed on
even date, he stated that he was a pahinante residing in the warehouse where LPG cylinders are stored,
located near Valle Verde Drive-In Lodge in San Fernando, Pampanga, owned by Ligaya Fausto, common-
law wife of Roberto Lising alias Rambo. In the main, he said:

21. T: Sa ikaliliwanag ng pagsisiyasat na ito, maaari bang isalaysay mo ang sinasabi mong hindi
pangkaraniwang pangyayari?

S: Nangyari yan alas 2:00 ng madaling araw ng 26 April 1990 natutulog ako, nang mayron kumatok sa
pinto ng bodega at nagising ako. Tinawag ko si Aida Morales para buksan ang gate tapos sabi ni Aida
Ikaw na lang ang magbukas pagkatapos kinuha ko yung susi sa kanya para buksan ang yong gate. Noong
binubuksan ko yong gate sabi sa akin ni Roberto Llising Bakit ang tagal mo tapos pakabukas ko ng gate
pumasok yong dalawang kotse una yung itim pagkatapos yung green na kotse na Lancer, tapos unang
bumaba sa kotse na itim si Rambo, pangalawa si Felimon bumaba sa kotse na Lancer may dala na pala.
Pagkatapos lumabas ng gate si Felimon may dala na pala. Si Rambo naman binuksan yong dalawang
pinto ng kotseng itim bumaba yung babae at saka yung lalaki hinila palabas ni Rambo. Pagkatapos
tinalian niya ng alambre bukod pa sa pagtali ng alambre pati pa yong mukha tinalian ng damit.
Pagkatapos pagtali ni Rambo, biglang dumating si Felimon dala pa yong pala pagkatapos sininyasahan si
Rambo na ilabas na iyong lalaki. Dinala ulit ni Rambo yung pala noong palabas na sila nung lalaki.
Pagkatapos ayaw nga lumabas ng lalaki, itinulak ni Rambo papunta sa labas, sabi naman ng babae
maawa naman po kayo sa amin dahil wala kaming kasalanan pagkatapos tinutukan ni Rambo yong
babae at sabi Putang ina mo, wag kang maingay, papatayin rin kita. Noong dinala na ni Rambo, umiiyak
na lang yong babae. Mga kalahating oras bago bumalik si Rambo sa bodega na hindi na kasama yong
lalaki. Nakahubad siya at pinapawisan, bukod pa yan, naghugas pa ng kamay siya. Pagkatapos nag-usap-
usap silang tatlo, si Rambo, si Felimon at yong kasama ni Rambo. Pagkatapos nagsabi si Rambo sa akin
na buksan na ang gate at aalis na sila. Binuksan ko ang gate at nagsakayan sila sa kotse, si Rambo sa itim
at saka yong babae, sa Lancer naman ang nakasakay yong kasama niya at si Felimon, at pagkatapos
lumabas na sila, tuloy-tuloy na umalis.1cräläwvirtualibräry

On June 25, 1990, the body of Cochise was exhumed. An autopsy was conducted where the finding was:
Cause of Death: Multiple Stab Wounds

702
The next day, Beeboms body, which was in an advanced decomposing stage was exhumed from a
shallow grave, two (2) kilometers from where Cochises body was found.

After evading arrest the previous days, Roberto Lising was finally apprehended on June 30, 1990. In a
Sworn Statement on the same day at Camp Bagong Diwa, Bicutan, he implicated Felimon Garcia and
Roberto Manalili. According to him, this is what happened:

x x x at about 11:00 oclock in the evening of April 25, 1990, he received a telephone call from FELIMON
GARCIA informing that he and his companions were at Valle Verde Lodge at San Fernando, Pampanga
and that they have a problem. He immediately went to that place and saw FELIMON GARCIA who
introduced to him RUDY MANALILI who was then accompanied by six (6) other men; that he saw a
yellow Mercedes Benz, a black Torana and a green Lancer; that on board the Lancer were a man and a
woman who were blindfolded and were introduced to him by RUDY MANALILI as ROBERTO HERRERA
and JOY MANALILI; that they proceeded to one of the rooms of the motel where MANALILI told him that
the two persons should die because they killed his brother DELFIN MANALILI; that afterwards RUDY
MANALILI paid the chit and they proceeded to the warehouse at Villa Victoria, San Fernando, Pampanga,
owned by LIGAYA FAUSTO where he bound COCHISE and led him back of the warehouse; that MANALILI
stabbed COCHISE and he acted only as a look-out; that FELIMON GARCIA and another person brought
the blindfolded woman to Brgy. San Agustin where she was killed that before he, FILIMON GARCIA and
RUDY MANALILI parted ways, MANALILI told him to take care of the Lancer, change its color and later he
will get it and after that he was given P40,000.00 in check which he encashed at the UCPB Diliman
Branch, Quezon City on April 26, 1990; that he gave P15,000.00 to FELIMON GARCIA and kept the rest;
that he had the Lancer repainted and used it.2cräläwvirtualibräry

Thereafter, the manhunt for Felimon Garcia and Rodolfo Manalili began. One by one, the men
responsible for the killing of Cochise and Beebom fell into the hands of the authorities.

On January 4, 1991, Garcia surrendered and was brought to the NBI. He named Pat. Enrico Dizon as the
companion of Lising when Cochise and Beebom were kidnapped and brought to Valle Verde Lodge. He
refused to make a statement or give further information until Rodolfo Manalili was arrested.

On January 16, 1991, Enrico Dizon was turned over by his superiors to the NBI. He named a certain CIC
Robin Manga as one of their companions and owner of the car they used when Cochise and Beebom
were kidnapped. Thus, Manga was also picked up.

Meanwhile, Rodolfo Manalili, who was in Australia at that time was fetched by then NBI Director Alfredo
Lim and Atty. Diego Gutierrez after proper representations were made with the Australian police.

On January 17, 1991 Felimon Garcia, with the assistance of his counsel, Atty. Redemberto Villanueva,
executed a statement revealing that:

x x x he met RODOLFO MANALILI sometime in April 1987 in his office at No. 71 Mapang-akit Street
corner V. Luna, Quezon City while soliciting contribution for Barangay fiesta of San Isidro, Minalin. The
relationship continued until he was requested by MANALILI to look for persons who could help in
arresting ROBERTO HERRERA, the suspect in the killing of his brother DELFIN MANALILI. He contacted
ROBERTO LISING alias RAMBO, a policemen assigned with Pampanga PC Intelligence Unit, thru LIGAYA
FAUSTO, his relative and live-in partner of LISING, to help in the arrest of HERRERA, and on April 21,
1990, while in the residence of LISING, he placed a long-distance call to MANALILI to inform him that
LISING is willing to help. They talked over the phone and agreed to meet the following day in Dao.

He met MANALILI at the Dao-Mabalacat exit and accompanied the latter to LISING, ENRICO DIZON AND
ANOTHER MAN ARMED WITH SERVICE PISTOL (.45 CALIBER AND Armalite. MANALILI, during the
meeting, said that VIC NABUA, his employee, will act as pointer of the persons to be arrested and LISING
agreed and asked from MANALILI P50,000.00 for the job to which MANALILI agreed. Initially MANALILI
gave P2,000.00 to LISING as expenses.

He together with LISING, ENRICO DIZON and the driver of a Tamaraw went to Quezon City on April 23
and 24, 1990, but VIC NABUA failed to spot HERRERA. On April 25, 1990, LISING and DIZON returned on

703
board a black car, Colt Galant (sic) driven by ROBIN MANGA and NABUA finally told then that HERRERA
was at a house near the Camelot. After a few minutes of surveillance NABUA approached them and told
them to follow the car driven by a man with a woman companion. Said car proceeded to Timog Circle
and parked in front of Dayrit Hamburger House, followed by the Colt Galant which they likewise
followed on board a motor and handcuffed the man and the woman. Then LISING instructed him to
contact MANALILI and VIC NABUA proceeded to Pampanga PC where they were instructed by the
military on duty to proceed to Valle Verde Lodge, San Fernando, Pampanga. There they saw LISING and
ERNESTO COCHISE BERNABE and BEEBOM CASTAOS. MANALILI identified them and instructed him and
LISING to release COCHISE and BEEBOM and assured that whatever MANALILI promised to LISING WILL
BE PAID. Lising AGREED. However, after MANALILI left, LISING told him to bring COCHISE and BEEBOM to
a warehouse owned by LIGAYA FAUSTO where COCHISE was killed by LISING. Thereafter BEEBOM was
forced by ENRICO DIZON and ROBIN MANGA top board the Galant car which left the warehouse towards
Barangay San Agustin.

He and LISING were left in the warehouse and proceeded to the house of LIGAYA FAUSTO at MALIGAYA
Village in San Fernando. At about 9:00 a.m. he and LISING went to the warehouse of MANALILI at
Xavierville Subdivision, Quezon City and there a check for P40,000.00 was given to LISING who encashed
it with Fareast Bank and went to Pampanga. He alighted at Sto. Domingo, Minalin, Pampanga after
LISING gave him P500.00.3cräläwvirtualibräry

Rodolfo Manalili, on the other hand, with the assistance of Atty. Rodolfo Jimenez manifested on January
18, 1991:

That he met LISING through FELIMON GARCIA whom he requested to look for some police officers who
could help in the arrest of ROBERTO HERRERA, the accused in the killing of his brother DELFIN MANALILI.

He met LISING together with a certain Pat ENRICO DIZON of the Guagua police and another police
officer in Dau, Pampanga on April 22, 1990, and gave them a sketch of HERRERA. On April 24, 1990, he
told GARCIA to postpone their plan against HERRERA due to his forthcoming travel to Germany on April
25. However, at about 10:00 p.m. of April 25, GARCIA came to his office at No. 71 Mapangakit, Diliman,
Quezon City and informed that they have already arrested HERRERA with a lady companion and that he
was instructed to go to Pampanga, which he did. He was accompanied in his car by GARCIA and VICTOR
LISBOA.

They proceeded to Valle Verde Hotel in San Fernando, Pampanga, and brought him to Room 213 where
he saw a man slumped on the floor with his eyes and mouth covered with tape. The lady companion
sitting on the bed had her eyes also taped. He told LISING that the man is not HERRERA. He was forced
to peek (sic) inside the room anew, and this time recognized the woman to be BEEBOM CASTAOS. He
pleaded to LISING and companions to release them and would give them whatever amount he promised
them.

After he was told that BEEBOM and COCHISE would be released he instructed GARCIA to stay behind
and see to it that his instructions were complied with. Then, he returned with VICTOR LISBOA. The
following day, at about 8:00 a.m., LISING and GARCIA came to his house and told him that the man and
BEEBOM were already released and in turn gave them a Far East Bank check in the amount
of P40,000.00.

On April 26, he left for Germany and returned on May 28, 1990. While still in Germany his wife and
househelps have been receiving threatening telephone calls and on the first week of June he received a
call from GARCIA who gave the telephone to LISING who asked for P60,000.00, otherwise he will kill him
or implicate him in the crime.

On June 21, 1990 he left for Hong Kong then to Melbourne for fear of his life and that of his family.

He claimed that the police officers he saw in Valle Verde Hotel were Pampanga policeman and not
Quezon City policeman.4cräläwvirtualibräry

704
Consequently, two (2) Amended Informations were filed in court against Roberto Rambo Lising, Rodolfo
Manalili, Felimon Garcia, Enrico Dizon, Robin Manga, and Ligaya Fausto.

Criminal Case No. Q-90-15239

For Carnapping (Violation of Republic Act No. 6539)5cräläwvirtualibräry

That on or about the 25thday of April 1990, in Quezon City, Philippines, and within the jurisdiction of this
Honorable Court, the said accused, P/Pfc. Roberto Lising y Canlas, Enrico Dizon, Robin Manga y Quimzon,
being then members of the Integrated National Police with Presidential waiver, and Rodolfo Manalili,
Felimon Garcia and Ligaya Fausto, private individuals and several Does, conspiring together,
confederating with and mutually helping one another, with intent to gain, and without the knowledge
and consent of the owner thereof, by means of violence and intimidation against persons, did, then and
there, willfully, unlawfully and feloniously take, rob and carry away one G.T. Lancer, with plate No. PER
942 in an undetermined value and belonging to Ernesto Bernabe II, to the damage and prejudice of the
offended party in such amount as may be awarded under the provisions of the Civil Code.6

Criminal Case No. Q-90-15240

For: Kidnapping with Double Murder7cräläwvirtualibräry

That on or about the 25th day of April, 1990, in Quezon City, Philippines, and within the jurisdiction of
this Honorable Court, the said accused, P/Pfc. Roberto Rambo Lising y Canlas, Enrico Dizon, Roberto (sic)
Manga y Quimzon, being then members of the Integrated National Police with Presidential waiver,and
Rodolfo Manalili, Felimon Garcia, both private individuals, and several Does, conspiring together,
confederating with and mutually helping one another, did, then and there, willfully, unlawfully and
feloniously and for the purpose of detaining Ernesto Bernabe II y Blanco @ Cochise and Ana Lourdes
Castaos y Jis de Ortega @ Beebom, kidnap or in any manner deprive them of their liberty and thereafter,
pursuant to their conspiracy, took them to San Fernando, Pampanga, and with intent to kill, with
treachery, evident premeditation and cruelty, did, then and there stab them several times in the chest
and slit open their necks, augmenting their sufferings which were the direct and immediate cause of
their deaths and thereafter burying them to prevent discovery, and Ligaya Fausto, also a private
individual, knowing the criminal intent of the above-named principal accused cooperated in the
execution of the crime by supplying material and/or moral aid, to the damage and prejudice of the Heirs
of said victims in such amounts as may be awarded to them under the provisions of the New Civil
Code.8cräläwvirtualibräry

Upon arraignment, all the accused pleaded not guilty.

In building up their case, the prosecution presented two vital witnesses: Froilan Olimpia, who witnesses
the abduction of the young couple at Dayrits Ham and Burger House; and Raul Morales,
the pahinante who testified on the killing of Cochise.

On May 27, 1991, Froilan Olimpia testified in court and stated that he was 31 years old and was formerly
a security guard of Nationwide Security and Investigation Agency. He was assigned at the Rotonda Wine
Station, the establishment beside Dayrits Ham and Burger House along Timog Circle, Quezon City. His
tour of duty on April 25, 1990 was from 12:00 noon to 12:00 midnight.

At about 7:00 to 7:30 in the evening, Olimpia was at his post in front of the Wine Station. There was a
green box type Lancer car which parked in front of the Dayrits Ham and Burger House carrying a man
and a woman. Then a black car with no license plate parked behind the green car and two men alighted
from it carrying guns. They announced that they were policemen, one was carrying a .45 caliber firearm
in his holster and other was carrying a long firearm. These men went towards the green box type Lancer
and handcuffed its driver. He only heard the man being handcuffed retort Bakit? When asked about the
female companion, he said that his attention was more focused on the handcuffing incident and just
later noticed that the woman was already seated at the back of the car. He did not even see the other
man driving the black car.

705
Olimpia further explained that the security guard of Dayrits Ham and Burger House, Anastacio dela Cruz,
was not really able to witness the whole incident since he was busy buying a cigarette stick from a
nearby vendor. Just when the latter was returning to his post, the cars were already backing up ready to
leave.

He did not tell anyone about the incident nor bothered to report to the authorities since he was aware
that the perpetrators were policemen. He came to know about the identities of the man and woman
and their disappearance when two persons were making inquiries about them on April 27, 1990. The
next time, another group of people asked him about what he witnessed until he was picked up by the
NBI for further questioning about the whole incident.

Raul Morales was presented in court on April 17, 1991. He stated that since March 1988, he had been
working for Ligaya Fausto and Roberto Lising as a pahinante or truck helper of Crown Gas Commercial, a
dealer of LPG, located in Valle Victoria Village, San Fernando, Pampanga. He knew Roberto Lising to be a
policeman and is known by the name Rambo Lising. He works as a policeman in the morning and when
he returns home after work, helps in delivering gas. During his testimony, Morales was given a clean
sheet of paper and pen where he was asked to make a sketch of his place of work.

At about 2:00 in the morning of April 26, 1990, he was awakened by a knock at the gate of the
warehouse. When he opened the gate, two cars came in: a green box-type Lancer car driven by Lising,
with Felimon Garcia seated in front, a man and a woman at the back seat of the car; and a black car with
Dizon and Manga. After the two cars entered the premises, he saw Lising go behind their sleeping
quarters and get a wire. Lising and Dizon then brought Cochise to an area in the middle of the
warehouse while Manga led Beebom to another end. After alighting from the car, Felimon Garcia got a
spade from the back compartment of the car and went out of the warehouse. Lising and Dizon then
removed the handcuffs of Cochise, tied his hands with the wire and blindfolded him with a tape and torn
cloth.

Morales further testified that it was Lising who closed the gate but left it ajar. In a little while, he noticed
another man enter the gate and walked towards Beebom. He heard the woman plead: Uncle, maawa po
kayo sa amin, while Manga was tying Beeboms hands with the wire. Garcia, after going inside the
warehouse, was handed a knife by Lising which he used to stab Cochise on the chest. Lising then
retrieved his knife from Garcia and continued to stab Cochise. When Cochise was already dead, the four
men, namely, Lising, Garcia, Dizon and Manga carried Cochise out of the warehouse. They were away
for about half an hour and when they came back, the four men directly went to the well and washed
their hands. The four walked towards Manalili and talked with each other. He could not hear the
conversation but saw that they grouped themselves together.

Before leaving, Lising called on Morales and told him to close the gate and keep the shoes of Cochise.
Lising boarded the green box-type Lancer car with Garcia and the woman. He noticed Rudy Manalili walk
out of the gate.

On April 26, 1991, the court conducted an ocular inspection of the scene of the crime. Witness Morales
pointed to the court how events transpired from where he was seated.

On the basis of the testimonies of the above witnesses, plus the confessions made in the extrajudicial
statements executed by Roberto Lising, Felimon Garcia, and Rodolfo Manalili, the prosecution presented
their version of the incident as quoted from the trial courts decision, to wit:

1. The conspiracy to abduct and subsequently kill Ernesto Cochise Bernabe II and Ana Lourdes Beebom
Castaos was hatched sometime in March 1990 when accused Rodolfo Manalili secured the services of
accused Felimon Garcia to look for men who would be willing to commit the dastardly deed for a fee.
(Exhibits HH and MM).

2. Accused Garcia then set about on his task and contacted accused Roberto Lising and Enrico Dizon for
the job. (Ibid.)

706
3. At a meeting arranged by Garcia on 22 April 1990, accused Manalili talked with Lising and Dizon at
Mabalacat, Pampanga about the details of the conspiracy. (Ibid.)

4. Accused Manalili promised Lising, Dizon and their companions the amount of P50,000.00 for the job.
(Ibid.)

5. Lising and Dizon readily accepted Manalilis using a total of P10,000.00 as downpayment, the balance
of P40,000.00 payable after the victims have been kidnapped and killed. (Ibid.)

6. Accused Lising and Dizon then recruited accused Robin Manga to help implement the orders of
Manalili. (Ibid.)

7. On 25 April 1990, at around 5:00 oclock in the afternoon, accused Lising, Dizon, Garcia and Manga, on
board Mangas black car, went to the vicinity of the Camelot Hotel at Quezon City. They positioned
themselves about 60 meters away from the Castaos residence and waited for the victims. (Exhibit MM)

8. At around 6:30 oclock in the evening of the same day, Cochise and Beebom went out of the Castaos
residence, boarded Cochises green colored 1985 Lancer car with plate No. PER 942. (Ibid.) This Lancer
car is owned by, and registered under the name of Cochises father, Fiscal Ernesto Bernabe. (Exhibit DD)

9. Cochise and Beebom then proceeded toward Dayrits Ham and Burger House at Timog Avenue,
Quezon City. (Ibid.)

10. Accused Lising, Dizon, Garcia and Manga immediately boarded Mangas black car and tailed the
green Lancer. (Ibid.)

11. Upon reaching Dayrits hamburger House, Cochise parked the green Lancer in front of the restaurant.
(TSN, 7 May 1991, p.6)

12. Immediately thereafter, Mangas black car was parked immediately behind. (Ibid.)

13. Accused Dizon, armed with a .45 caliber pistol, and accused Manga, carrying a long firearm, alighted
from the black car, proceeded towards the green Lancer and announced that they are policemen. (Id. At
7)

14. While Cochise and Beebom were alighting from the green Lancer, Dizon approached, pointed the .45
caliber pistol at Cochise and handcuffed Cochises hands behind his back. (Id., at 8)

15. Cochise, visibly surprised and confused, asked Dizon, Bakit? (Id. at 14)

16. Accused Dizon ignored the question and rudely pushed Cochise into the back seat of the green
Lancer. (Id., at 7-9)

17. Similarly, accused Manga approached Beebom at the other side of the green Lancer, and pushed her
into the other back seat of the green Lancer. (Ibid.)

18. Accused Dizon and Manga then boarded the front of the green Lancer, backed the car out of the
parking area of Dayrits Ham & Burger House and drove away towards EDSA. (Id.at 11)

19. Accused Lising and Garcia, on board Mangas black car, immediately followed. (Ibid.)

20. After the forcible abduction of Cochise and Beebom, Garcia informed Manalili of the success of the
operation. Garcia further told Manalili to go to a designated place in San Fernando, Pampanga, where
Cochise and Beebom will be taken. (Exhibit MM)

21. Manalili then proceeded to San Fernando, Pampanga on board his gray Mercedes Benz. (Ibid.)

707
22. At around 2:00 oclock in the morning of 26 April 1990, accused Lising, Dizon, Garcia and Manga
brought Cochise and Beebom to a bodega in San Fernando, Pampanga owned by accused Ligaya Fausto.
(TSN, 18 April 1991, p.6)

23. At this time, Lising was driving the green Lancer with Garcia at the front seat. At the rear of the car
were Cochise and Beebom. (Id. at 8)

24. Manga, on the other hand, was driving the black car, with Dizon beside him. (Id., at 8)

25. After the green Lancer and the black car were parked inside the bodega, Cochise, blind-folded,
handcuffed and gagged with several strips of masking tape, was dragged out of the green Lancer by
Lising and Dizon towards an area near the toilet. (Id., at 9-10; TSN, 26 April 1991, p.3)

26. Beebom, on the other hand, was taken by Manga to another area of the Bodega where she could
not see Cochise or hear what was being done to him. (Ibid.)

27. At this point in time, Manalili arrived, parked the car on the road outside the bodega and walked
inside towards Beebom. (TSN, 18, April 1991, p.11)

28. Beebom, seeing Manalili, pleaded, Uncle, parang awa mo na. Wala kaming kasalanan. (Ibid.)

29. Manalili simply ignored Beeboms plea for mercy. (Ibid.)

30. Meanwhile, Garcia went to the back of the green Lancer, got a spade from the truck compartment,
and went out of the bodega. (Ibid). Garcia walked towards the back of the bodega and there, dug a
shallow grave. (Exhibit HH)

31. Lising went to the clothesline area of the bodega, got a length of a laundry wire and some clothes
which he tore apart and made into makeshift ropes. (TSN, 18 April 1991, p. 12)

33. Garcia then returned to the bodega with the spade still in his hands and approached Cochise. (Id., at
14)

34. Lising handed a knife to Garcia, who then stabbed Cochise in the chest. (Ibid.)

35. Lising, appearing, dissatisfied, grabbed the knife from Garcia and stabbed Cochise several times in
the chest and stomach area, as if telling Garcia how to do it. All this time, Dizon was holding Cochise. (Id.,
at 14-15)

36. Cochise then fell to the ground, mortally wounded. (Ibid.)

37. Thereupon, Dizon motioned to Manga to help carry the body of Cochise. Manalili then was left to
keep watch over Beebom. (Id., at 16)

38. Lising, Dizon, Garcia and Manga brought Cochise to the back of the bodega, into the shallow grave
dug by Garcia. The four then covered cochise with soil. (TSN, 26 April 1991, p. 6; Exhibit MM)

39. They then reported to Manalili for final instructions. The order was for all of them to leave. (TSN, 26
April 1991, p. 18)

40. Beebom inquired about Cochise, Lising and Dizon answered that they had released Cochise, and that
they would likewise release her. (TSN, 18 April 1991, p. 18; Exhibit MM)

41. Thus, the five accused left the bodega, Dizon and Manga on board the black car, Manalili in his own
car, and Lising, Garcia and Beebom in the green Lancer. (TSN, 18 April 1991, p. 18)

42. Later, upon the instructions of Lising, Dizon and Manga took Beebom with them on the black car.
(Exhibit MM). This was the last time that Beebom was seen alive.

708
43. At around 5:00 oclock in the morning of the same day, Fausto arrived at her bodega and waited for
Lising to arrive. (TSN, 18 April 1991, p. 20)

44. About an hour later, Lising arrived on board the Lancer car taken from Cochise. Lising alighted from
the Lancer car, proceeded to one of the huts in the bodega where Fausto was staying, and informed
Fausto about the taking of the Lancer car. (Id., at 21)

45. After a few minutes, Fausto emerged from the hut and instructed a certain Jun Medrano, one of
Faustos helpers in the bodega, to drive the Lancer car to her house in Maligaya Village, San Fernando,
Pampanga, and hide it there. (Id., at 22)

46. Pursuant to Faustos instruction, Jun Medrano, together with two other helpers of Fausto, Raul
Morales, and a certain Nonoy, drove the Lancer car to Faustos house and hid it in the barbelan area of
the house. (Id., at 23-24; Exhibit Y)

47. Meanwhile, satisfied that his orders had been fully implemented, Manalili paid Lising the P40,000.00
balance of the contract, by issuing a Far East Bank check for the said amount to Lising at around 8:00
oclock in the morning of 26 April 1990. (Exhibits K and HH)

48. Lising immediately encashed the check and distributed the proceeds among himself and the other
accused, Exhibits K-2 and MM)

49. The Lancer car taken from Cochise, on the other hand, remained hidden for sometime at the
residence of Fausto in Maligaya Village where it was repainted to a light gray color upon the instruction
of Fausto. (TSN, 18 April 1991, pp. 26-27; Exhibits CC, CC-1 to CC-6)

50. After the Lancer car was repainted to light gray, Faustos helpers in the bodega, namely, Jun
Medrano, Raul Morales, Rudy, Bebot and Arnold, upon Faustos instructions, pushed the Lancer car for
about fifteen minutes to have its engine started. Thereafter, the Lancer car was driven to Faustos
bodega. (TSN, 18 April 1991, pp. 28-29)

51. Lising and Fausto thereafter started using the Lancer car in going to the bank and other places in San
Fernando, Pampanga. (Ibid.)

52. The Lancer car was subsequently recovered by the PC/CAPCOM and turned over to the custody of
Fiscal Ernesto Bernabe. (Exhibits CC, CC-1 to CC-6 and EE)

53. On 25 June 1990, after two months of frantic and exhaustive search made by the Bernabe family, the
body of Cochise was found and exhumed from the grave where Cochise was buried by Lising, Garcia
Dizon and Manga at the back of Faustos bodega in San Fernando, Pampanga. It was determined during
an autopsy that Cochise died to multiple stab wounds in his chest and upper stomach. (TSN, 10 April
1991, p. 33; Exhibits D, D-1 E and E-1

54. The next day, also after two months of frantic and exhaustive search made by the Castaos family, the
body of Beebom was found and exhumed from a shallow grave about two kilometers from the bodega
of Fausto. It was determined during the autopsy that Beebom died of severe hemorrhage, secondary to
two stab wounds in the chest. (TSN, 10 April 1991, p. 40; Exhibits 1 and J)

55. Cochise was 26 years old and Beebom was 22 years old when their lives were untimely ended by the
accused. Cochise had just finished his Bachelor of Laws degree from the University of the Philippines and
was then reviewing for his bar examinations when he was abducted on 25 April 1990. Beebom, on the
other hand, was a graduating Mass Communication student of the University of the Philippines when
she was abducted on 25 April 1990. Both Cochise and Beebom excelled in academic and extra-curricular
activities, their written works having been published in periodicals and other publications. Cochise and
Beebom were in the best of their youth and health at the time of their untimely death. (TSN, 9 August
1991, pp. 4-7; TSN, 23 July 1991, pp. 24-26; Exhibit II)

709
56. The Bernabe family, in their attempt to locate Cochise spent a total of P380,000.00. in laying Cochise
to his final rest, the Bernabe family spent a total of P632,222.00 for funeral and other expenses. (TSN, 9
August 1991, p. 12; Exhibits LL, LL-1 to LL-3)

57. The Castaos family, on the other hand, spent a total of P350,000.00 for the funeral services for
Beebom. (TSN, 23 July 1991, p. 39)9cräläwvirtualibräry

In their defense, the accused policemen claimed that there was insufficient evidence to sustain their
conviction. At the same time, each one had an alibi.

Roberto Lising asserted that on April 25, 1990, he took a leave of absence from office to be able to
celebrate his fathers birthday in Arayat, Pampanga and stayed there for the night. His father was
presented to corroborate his assertion.

Enrico Dizon testified that April 25, 1990 was an ordinary working day for him. He left the office at 5:00
p.m. and headed for home at NO. 107 Kamia St., Bgy. Sindalen, San Fernando, Pampanga. In fact, two of
his neighbors recounted in court the verbal exchange they had when they saw each other in their
neighborhood.

Roberto Manga, meanwhile averred that it was impossible for him to participate in the commission of
the crime since he was still nursing his gunshot wounds sustained in an encounter with lawless elements
for about a year already.

Garcia and Manalili did not take the witness stand. They opted to rely on their extrajudicial statements
executed the previous days manifesting the absence if criminal intent.

On July 1, 1992, the trial court rendered a decision with the following dispositive portion:

WHEREFORE, premises considered, this Court finds accused RODOLFO MANALILI, ROBERTO LISING y
CANLAS, FELIMON GARCIA, ROBIN MANGA y QUIMZON and ENRICO DIZON y ESCARIO, GUILTY beyond
reasonable doubt of the crime of Double Murder qualified with treachery and aggravated by evidence
premeditation and abused of public position by Lising, Manga and Dizon, and hereby sentences each
one of them to suffer a penalty of double Reclusion Perpetua with all its accessory penalties provided by
law (the death penalty having been abolished by the 1987 Constitution); to pay jointly and severally the
heirs of Ernesto Bernabe II;

(a) P1,000,000.00 as funeral and other expenses;

(b) P50,000.00 as compensatory damages;

(c) P500,000.00 as moral damages;

(d) P2,000,000.00 for Cochises loss of earning capacity;

The heirs of Ana Lourdes Castaos:

(a) P350,000.00 for funeral and other expenses;

( b) P50,000.00 as compensatory damages;

( c) P500,000.00 as moral damages;

The Court also finds accused Roberto Lising, Enrico Dizon and Robin Manga GUILTY beyond reasonable
doubt of the crime of Slight Illegal Detention aggravated by use of a motor vehicle and hereby sentences
each one of them to suffer the maximum penalty of Reclusion Temporal with imprisonment from
Seventeen (17) years, Four (4) months and one (1) day to Twenty years, and to pay the cost.

710
Accused LIGAYA FAUSTO who is charged as an accessory after the fact (not accomplice as alleged by the
Prosecution), is hereby acquitted for insufficiency of evidence.

Accused RODOLFO MANALILI, ROBERTO LISING, ENRICO DIZON, ROBIN MANGA and FELIMON GARCIA
are given full credit of their respective sentences in this case.

With respect to Criminal Case No. Q-15239 for carnapping, all the accused are hereby ACQUITTED of the
crime charged, it appearing that the use of the car was done only to facilitate the commission of the
crime of Slight Illegal Detention.10cräläwvirtualibräry

In this appeal, the following assignment of errors were made:

Roberto Lising contends that:

I. THAT THE HONORABLE TRIAL COURT ERRED IN ADMITTING AND CONSIDERING THE STATEMENTS OF
RODOLFO MANALILI (EXHS. HH:, HH-1 TO HH-25) AND THAT OF FELIMON GARCIA (MM, MM-1 TO MM-
14) ADMISSIBLE AS AGAINST ROBERTO RAMBO LISING;

II. THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING RAUL MORALES AS A CREDIBLE WITNESS,
ALSO AS AGAINST ROBERTO RAMBO LISING;

III. THAT THE HONORABLE TRIAL COURT ERRED, LIKEWISE, IN STATING THAT HEREIN APPELLANT
IMMEDIATELY ENCASHED THE CHECK AND DISTRIBUTED THE PROCEEDS AMONG HIMSELF AND THE
OTHERS (EXHS. K-2 AND MM);

IV. THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING THE STATEMENT OF THE HEREIN
APPELLANT AS ADMISSIBLE IN EVIDENCE AS AGAINST HIM;

V. THAT THE HONORABLE TRIAL COURT ERRED IN DECLARING THAT HEREIN APPELLANT (LISING IS
EQUALLY LIABLE FOR KIDNAPPING THUS, JIVING (SIC) THE PLACE FOR PURPOSES OF JURISDICTION; AND

VI. THAT THE HON. COURT ERRED IN CONVICTING TE HEREIN APPELLANT (ROBERTO LISING) AS ONE OF
ALL THE ACCUSED FOR THE CRIMES OF DOUBLE MURDER AND WITH ENRICO DIZON AND ROBIN MANGA
FOR SLIGHT ILLEGAL DETENTION BEYOND REASONABLE DOUBT.11cräläwvirtualibräry

Enrico Dizon argues that:

1. THE LOWER COURT ERRED IN GRANTING THE MOTION TO DROP THE NAMES OF ROLANDO KHO,
ROLANDO FERNANDEZ, NOEMI PANGAN AND JESUS REMOLACIO FROM THE INFORMATION AND ADMIT
AMENDED INFORMATION IMPLICATING ACCUSED-APPELLANT ENRICO DIZON DESPITE CLEAR EVIDENCE
OF THE PARTICIPATION OF KHO, FERNANDEZ, PANGAN AND REMOLACIO;

2. THE LOWER COURT ERRED IN ADOPTING THE PROSECUTIONS VERSION OF STATEMENT OF THE FACTS
ALTHOUGH THERE WERE MISLEADING STATEMENTS AS PROVED BY THEIR CONTRADICTIONS TO THE
TRANSCRIPTS OF STENOGRAPHIC NOTES, AND AFFIDAVITS PRESENTED;

3. THE LOWER COURT GRAVELY ERRED IN NOT CONSIDERING THE PRESUMPTION OF INNOCENCE FOR IT
RELIED IN THE WEAKNESS OF THE DEFENSE OF ALIBI, WITHOUT REGARDING THE INCONSISTENCIES IN
THE TESTIMONY OF PROSECUTION WITNESS RAUL MORALES AND FROILAN OLIMPIA;

4. THE LOWER COURT COMMITTED ERROR WHEN IT GAVE CREDENCE TO THE AFFIDAVITS EXECUTED BY
LISING, MANALILI AND GARCIA DESPITE THE FACT THAT THEY WERE NOT PRESENTED AS WITNESSES
BEFORE THE LOWER COURT;

5. THE LOWER COURT GRAVELY ERRED IN ADJUDGING THE ACCUSED-APPELLANT GUILTY OF THE
CRIMINAL ACTS BASED ON THE DECLARATION OF FELIMON GARCIAS EXTRAJUDICIAL CONFESSION
WITHOUT ESTABLISHING FIRST THE CONSPIRACY TO WHICH ACCUSED-APPELLANT DIZON WAS A
PART.12cräläwvirtualibräry

711
Robin Manga asserts that:

I. THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE EXTRAJUDICIAL STATEMENT
OF CO-ACCUSED RODOLFO MANALILI AND FELIMON GARCIA DESPITE THE FACT THAT THE TWO DID NOT
TAKE THE WITNESS STAND NOR THEIR STATEMENTS OFFERED IN EVIDENCE;

II. THE LOWER COURT ERRED IN HOLDING THAT THE EXTRAJUDICIAL STATEMENTS OF RODOLFO
MANALILI AND FELIMON GARCIA AFFIRMED CONSPIRACY AMONG THE ACCUSED-APPELLANTS DESPITE
ITS UTTER LACK OF EVIDENTIARY VALUE;

III. THE LOWER COURT ERRED IN GIVING FULL WEIGHT AND CREDIT ON THE TESTIMONIES OF RAUL
MORALES AND FROILAN OLIMPIA DESPITE THE FACT THAT THE STATEMENTS OF THE TWO ARE REPLETE
WITH INCONSISTENCIES, SELF-CONTRADICTIONS AND ARE HIGHLY IMPROBABLE;

IV. THE LOWER COURT ERRED IN FINDING THAT FELIMON GARCIAS NARRATION OF THE ABDUCTION
WAS CONSISTENT WITH THE TESTIMONY OF FROILAN OLIMPIA WITH RESPECT TO THE PARTICIPATION
OF ACCUSED-APPELLANT ROBIN MANGA DESPITE STATEMENTS BY OLIMPIA THAT HE SAW QUEZON CITY
POLICEMEN ROLANDO KHO AND ROLANDO FERNANDEZ AS THE PERSONS WHO ABDUCTED COCHISE
AND BEEBOM IN THE EARLY EVENING OF APRIL 25, 1990 AND DESPITE THE FACT THAT THE
EXTRAJUDICIAL STATEMENT FELIMON GARCIA WAS NOT EVEN IDENTIFIED BY THE LATTER DURING THE
TRIAL OF THESE CASES;

V. THE LOWER COURT ERRED IN CONSIDERING AS EVIDENCE MATTERS OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHT OF THE ACCUSED-APPELLANT MANGA;

VI. THE LOWER COURT ERRED IN FAILING TO OBSERVE THE PHYSICAL IMPOSSIBILITY OF ACCUSED-
APPELLANT MANGA BEING INVOLVED IN THE OFFENSES CHARGED;

VII. THE LOWER COURT ERRED IN NOT ACQUITTING ACCUSED-APPELLANT MANGA.13cräläwvirtualibräry

Rodolfo Manalili avers that:

I. THE TRIAL COURT GRAVELY ERRED IN GIVING TOTAL CREDIBILITY TO RAUL MORALES AND IN NOT
FINDING THAT RAUL MORALES WAS A REHEARSED AND PERJURED WITNESS INSOFAR AS IMPLICATING
ACCUSED RODOLFO MANALILI IN THE COMMISSION OF THE CRIME OF DOUBLE MURDER IS
CONCERNED;

II. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT ACCUSED RODOLFO MANALILI DID NOT
HAVE ANY CRIMINAL INTENT OF DOING AWAY WITH THE LIVES OF ERNESTO BERNABE II AND ANA
LOURDES CASTAOS AND THAT HE LIKEWISE DID NOT HAVE ANY MOTIVE WHATSOEVER IN CONSPIRING
TO DO SO;

III. THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT ACCUSED RODOLFO MANALILI NEVER
ENTERED INTO A CONSPIRACY TO COMMIT THE CRIME OF DOUBLE MURDER NOR DID HE COMMIT ANY
ACT/S ON THE BASIS OF WHICH IT CAN BE INFERRED THAT HE ENTERED INTO SUCH A CONSPIRACY TO
COMMIT THE CRIME IMPUTED TO HIM;

IV. SINCE THERE WAS IN EFFECT SEPARATE TRIAL OF THE SEVERAL ACCUSED WHO WERE EACH
REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN MANALILI AND
HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATION DURING ITS EXISTENCE, THE
TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT OF ROBERTO LISING
AS EVIDENCE AGAINST RODOLFO MANALILI TO THE EXTENT THAT IT PURPORTS TO ATTEST TO
MANALILIS INVOLVEMENT IN THE CRIME;

V. THE TRIAL COURT GRAVELY ERRED IN NOT CONSIDERING SPECIAL CIRCUMSTANCES OF THE CASE ON
THE BASIS OF WHICH IT CAN BE INFERRED THAT ANOTHER PARTY WHO WOULD BE MOST BENEFITED BY
DOING AWAY WITH THE LIVES OF THE VICTIMS, WAS BEHIND THE COMMISSION OF DOUBLE MURDER;

712
VI. THE TRIAL COURT GRAVELY ERRED IN NOT APPLYING THE WELL-ESTABLISHED PRINCIPLE IN
CRIMINAL LAW THAT WHEN THE FACTS AND CIRCUMSTANCES OF THE CASE ARE SUSCEPTIBLE TO TWO
REASONABLE INTERPRETATIONS: ONE REASONABLE INTERPRETATION LEADING TO A DECISION OF
CONVICTION, AND THE OTHER REASONABLE INTERPRETATION LEADING TO A FINDING OF ACQUITTAL,
THEN THE EVIDENCE OF THE PROSECUTION HAS NOT FULFILLED THE STRINGENT REQUIREMENT OF THE
LAW OF PROVING THE GUILT OF ACCUSED RODOLFO MANALILI BEYOND DOUBT AND THEREFROM SAID
ACCUSED MANALILI IS ENTITLED TO AN ACQUITTAL; AND

VII. THE LOWER COURT GRAVELY ERRED IN AWARDING INFLATED, UNSUBSTANTIATED, AND
SPECULATIVE DAMAGES WHICH ARE NOT RECOVERABLE UNDER EXISTING
14
JURISPRUDENCE. cräläwvirtualibräry

Felimon Garcia contends that:

I. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT RAUL MORALES WAS A REHEARSED AND
PERJURED WITNESS TO MAKE FALSE ASSERTIONS IMPLICATING APPELLANT FELIMON GARCIA IN THE
COMMISSION OF THE CRIME OF DOUBLE MURDER;

II. SINCE THERE WAS IN EFFECT SEPARATE TRIALS OF THE SEVERAL ACCUSED WHO WERE EACH
REPRESENTED BY SEPARATE LAWYERS AND CONSIDERING THAT CONSPIRACY BETWEEN APPELLANT
FELIMON GARCIA AND HIS CO-ACCUSED HAS NOT BEEN SHOWN BY ANY ACT OR DECLARATION DURING
ITS EXISTENCE, THE TRIAL COURT GRAVELY ERRED IN TAKING INTO ACCOUNT THE SWORN STATEMENT
OF ROBERTO LISING AS EVIDENCE AGAINST APPELLANT FELIMON GARCIA;

III. THE TRIAL COURT GRAVELY ERRED IN NOT FINDING THAT APPELLANT FELIMON GARCIA DID NOT
HAVE ANY CRIMINAL INTENT NOR MOTIVE WHATSOEVER TO CONSPIRE WITH APPELLANT LISING ET AL
TO KILL ERNESTO BERNABE II AND ANA LOURDES CASTAOS BOTH OF WHOM APPELLANT GARCIA HAS
NEVER KNOWN OR MET BEFORE APRIL 25, 1990;

IV. THE TRIAL COURT GRAVELY ERRED IN NOT CONCLUDING THAT APPELLANT FELIMON GARCIA
PERFORMED THE ACTS ADMITTED BY HIM UNDER THE COMPULSION OF AN IRRESISTIBLE FORCE
AND/OR UNDER THE IMPULSE OF AN UNCONTROLLABLE FEAR OF AN EQUAL OR GREATER INJURY AND
THEREFORE EXEMPT FROM CRIMINAL LIABILITY; AND

V. EVEN ASSUMING ARGUENDO THAT APPELLANT FELIMON GARCIA IS NOT EXEMPT FROM CRIMINAL
LIABILITY, THE TRIAL COURT GRAVELY ERRED IN NOT FINDING HIM GUILTY MERELY AS AN ACCOMPLICE
OF THE CRIME OF DOUBLE MURDER AND THEREFORE ENTITLED TO A LOWER PENALTY IN VIEW OF THE
PRESENCE OF VOLUNTARY SURRENDER, OBFUSCATION, AND LACK OF INTENTION TO COMMIT SO
GRAVE A WRONG, AS MITIGATING CIRCUMSTANCES.15cräläwvirtualibräry

Basically the present appeal is anchored on three issues: (a) the admissibility of the extrajudicial
statements of appellants Manalili, Garcia and Lising; (b) the credibility of prosecution witnesses Froilan
Olimpia and Raul Morales and the (c) finding of conspiracy among the appellants.

Extrajudicial statements are as a rule, admissible as against their respective declarants, pursuant to the
rule that the act, declaration or omission of a party as to a relevant fact may be given in evidence
against him. This is based upon the presumption that no man would declare anything against himself,
unless such declarations were true. A mans act, conduct and declarations wherever made, provided they
be voluntary, are admissible against him, for the reason that it is fair to presume that they correspond
with the truth and it is his fault if they are not.16cräläwvirtualibräry

There is no question that their respective extrajudicial statement of Manalili and Garcia were executed
voluntarily. They were assisted by their counsel and properly sworn to before a duly authorized officer.
They merely relied on their extra-judicial statements and did not take the witness stand during the trial.

Lising, on the other hand, claims that he was coerced and tortured into executing the extrajudicial
statement but nothing appears on record that such extrajudicial statement was made under compulsion,
duress or violence on his person. Lising did not present himself for physical examination, nor did he file

713
administrative charges against his alleged tormentors which would necessarily buttress the claim of
torture in the absence of such evidence. There are in fact indicia of voluntariness in the execution of his
extra-judicial statements, to wit: (a) it contains many details and facts which the investigating officer
could not have known and could have supplied, without the knowledge and information given by Lising
himself; (b) it bears corrections duly initialed by him; (c) it tends to explain or justify his conduct and
shift the blame to his co-accused Manalili. Moreover, the claim that Lising was not assisted by counsel is
belied by the fact that the signature of his counsel Atty. Yabut appears in all the pages of his extrajudicial
statements.

The rule that an extrajudicial statement is evidence only against the person making it, also recognizes
various exceptions. One such exception worth noting is the rule that where several extrajudicial
statements had been made by several persons charged with an offense and there could have been no
collusion with reference to said several confessions, the facts that the statements are in all material
respects identical, is confirmatory of the confession of the co-defendants and is admissible against other
persons implicated therein.17 They are also admissible as circumstantial evidence against the person
implicated therein to show the probability of the latters actual participation in the commission of the
crime and may likewise serve as corroborative evidence if it is clear from other facts and circumstances
that other persons had participated in the perpetration of the crime charged and proved.18 These are
known as interlocking confessions.

No doubt that the statements were independently executed and rather identical with each other in their
material details. There are also distinct similarities in the narration of events leading to the killings of
Cochise and Beebom.

Manalili and Garcias statements reveal that Manalili wanted to effect the arrest of Robert Herrera; that
he asked help from Garcia if the latter knew of policemen who could do the job for the promised
consideration of P50,000.00; that a downpayment of P2,000.00 was made; that Manalili was informed
that Robert Herrera and Joy Ortega were arrested; that Manalili together with Garcia and Nabua
proceeded to Valle Verde Motel; that they were met by Dizon and Manga at the motel and were told
that Herrera was inside the room; that upon discovery that Lisings group had taken the wrong person
and recognized Beeboms voice, Manalili pleaded to the group that the victim be released, assuring Lising
that the balance P40,000.00 would still be paid; that Lising and his group refused but relented upon
Manalilis persistence; that Manalili left for Manila but instructed Garcia to stay behind and ensure the
release of the victims; and that the next day Lising went to his office and claimed the balance to which
Manalili issued the corresponding check.

Garcia added that after Manalili had left, Lising told him to bring Cochise and Beebom to the warehouse
owned by Ligaya where Cochise was killed. Thereafter, they forcibly took Beebom into the car and
proceeded to Brgy. San Agustin.

Likewise, we find Lisings statement as corroborative evidence against the others. Except as to that
portion where he exculpates himself from any liability stating that it was Manalili and Garcia who
actually stabbed Cochise in the warehouse and that he was merely a lookout, Lisings statement is
identical as to the other material facts, namely, that Cochise and Beebom were brought to the Valle
Verde Motel, blindfolded where he met Manalili and Garcia; that they were brought to the warehouse
on board a green box type Lancer car, where Cochise was killed; that Beebom was brought to Brgy. San
Agustin where she was eventually killed; that he should take care of the green box type Lancer car and
was given P40,000.00 in check.

Nonetheless, the trial courts decision, in convicting all the accused was based not on the aforesaid
extrajudicial statements of the accused alone but mainly on the eyewitness account of the two
witnesses, Froilan Olimpia and Raul Morales, which the trial court gave weight and credence as bearing
the chime of truth and honesty. Well-established is the rule that the trial courts evaluation of the credit-
worthiness of the testimony given before it by witnesses should be accorded great respect.19 Froilan
Olimpia, a security guard of the Rotonda Wine Station, an establishment adjacent to the Dayrits Ham
and Burger House who witnessed the abduction of Cochise and Beebom in front of the said restaurant.

714
He testified that he saw three men in a black car without a license plate drive to Dayrits Ham and Burger
House and park behind the green Lancer car. When the two men alighted from the car, they introduced
themselves as policemen to the by-standers, one carrying a .45 caliber firearm in his holster and the
other carrying a long firearm. The two men approached the green Lancer car and handcuffed its driver.
Olimpia only heard the man say: Bakit? He later noticed that the woman was already seated at the back
of the car. These two men drove the green Lancer car which was followed by the black car. When asked
to identify the three men, Olimpia unhesitatingly identified Dizon and Manga.

Q. Mr. Witness, on April 25, 1990, where were you employed?

A. Security Guard of Nationwide Security & Investigation Agency.

Q. You said you were employed with Nationwide Security & Investigation Agency, as Security Guard on
said date, where were you assigned as security guard?

A. At Rotonda Wine Station, sir.

Q. Where is this Rotonda Wine Station located?

A. At Timog Ave., sir.

Q. What city?

A. Quezon City, sir.

Q. You said you were employed as security guard of Rotonda Wine Station, Timog Ave., Quezon City, do
you have proof to show that you were a security guard of said Rotonda Wine Station on April 25, 1990?

A. I have, sir, but it is filed with the agency.

Q. This Rotonda Wine Station, what establishments are beside this establishment, and let us talk first on
the left and then right?

A. The left side of Rotonda Wine Station is the Dayrit Hamburger House and the right is a drugstore.

Q. What was your tour of duty on April 25, 1990?

A. 12:00 noon to 12:00 midnight, sir.

Q. And did you report for duty on said date?

A. Yes, sir.

Q. On or about 7:00 to 7:30 oclock in the evening of April 25, 1990, what particular portion of Rotonda
Wine Station were you posted?

A. I was at the door, sir.

Q. Door of what, front or back?

A. Front door of the Rotonda Wine Station, sir.

Q. When you said you were at the front door, inside the building or outside?

A. Outside of the door, sir.

Q. You mentioned a while ago that on the left side of the Rotonda Wine Station where were posted is
the Dayrit Hamburger House, was there a security guard there?

715
A. Yes, sir.

Q. And do you know him?

A. Yes, sir.

Q. What is his name?

A. Anastacio de la Cruz, sir.

Q. You stated that at 7:00 to 7:30 in the evening of April 25, 1990, you positioned yourself in front or
outside the door of Rotonda Wine Station, did you notice anything unusual while you were posting
there?

A. Yes, sir, there was.

Q. What was that unusual incident that took place, if any?

A. There was a vehicle parking in front of Dayrit Hamburger house.

Q. What kind of a vehicle parked there?

A. Green Lancer, car, box type.

Q. Where was it parked particularly?

A. In front of Dayrit Hamburger house, at the side of the street.

Q. Did you notice the passenger of that green Lancer car?

A. No, I did not know them, sir.

Q. But did you have the occasion to look and see them?

A. Yes, sir.

Q. How many were they?

A. Two, sir.

Q. Were they male and female?

A. Yes, sir, one man a and one woman.

Q. You said you noticed the car with two persons boarding it, what happened after the vehicle parked
on the side of the street in front of the Dayrit Hamburger house?

A. After they had parked their vehicle, I noticed that another car parked behind that green Lancer car
without any plate number.

Q. Did you notice what kind of a car was that which parked behind the green Lancer car?

A. I noticed it was a black car without plate number but I did not notice the make.

Q. What happened after the black car parked behind the green Lancer car?

A. Two men from the black car alighted.

716
Q. What did the two men do after they alighted?

A. After they alighted they announced and introduced themselves that they were policemen and they
went towards the green Lancer car.

Q. You said they introduced themselves as policemen, to whom?

A. To the people around the vicinity, to the by-standers.

Q. When the two men who introduced themselves as policemen, did you notice if they were armed?

A. Yes, sir.

Q. Please inform us what arm or weapon did they carry?

A. The other one was carrying a .45 firearm on his holster and the other one was carrying a long firearm,
I do not know what kind of firearm that long firearm was.

Q. This person carrying 45 firearm, could you still recall him or his figure or feature?

A. If I see him again, I could recognize him.

Q. But can you describe him before this Court?

A. Yes, sir, he is tall, a little bit dark complexion and with a little mustache.

Q. You said that if you see that person again, you can recognize him. Will you please look around the
courtroom and point to him if he is now inside?

A. Yes, he is here, sir.

Q. If he is here, will you please point to him?

A. Yes, I can point to him.

Q. Will you please go down from the witness stand, go to him and tap him on his shoulder?

A. (Witness went down from the witness stand, went to the person and tap the shoulder, who when
asked of his name answered as ENRICO DIZON).

Q. Go back to the witness stand.

ATTY. CRESCINI:

May we make it of record, Your Honor, that at the time the witness was asked to identify Enrico Dizon,
there are many people, at least one hundred in number, standing inside the courtroom closely to each
other.

FISCAL:

I would like to adopt the same manifestation, Your Honor.

Q. You have identified the person with 45 caliber firearm, the person who was carrying a long firearm,
can you still recognize him or can you remember his feature?

A. If I could see him again, I can recognize him.

717
Q. You said that you can see that person with long firearm again, you can recognize him, will you look
around the courtroom and tell us if that person you are referring to is here?

A. Yes, he is here.

Q. Will you please point to him?

A. (Witness pointing to a person inside the courtroom who when asked of his name answered as ROBIN
MANGA).

Q. Now, that you identified the two armed men who alighted from the black car and introduced
themselves as policemen, what did these two men do after that?

A. They went towards the parked green Lancer car.

Q. And what did they do when they went towards the green Lancer car?

A. They immediately handcuffed the man driving the green Lancer car.

Q. This person who was handcuffed, were you able to look and see him?

A. Yes, sir.

Q. Can you still recognize him if you see him again?

A. Yes, sir, I can recognize him if I see him again.

Q. What about a picture, if you are shown a picture of that man who was handcuffed, could you still be
able to identify him?

A. Yes, sir, I can.

Q. I am showing to you a picture marked as Exh. X-4 please look at this picture and tell us if you could
recognize this picture?

A. Yes, sir, I know this person.

Q. Who is this person?

A. He is Ernesto Bernabe II, sir.

Q. What relation has this person in this picture and the person who was handcuffed in the evening of
April 25, 1990 at the time you saw him?

A. I know, sir, this person in the picture and the one who was handcuffed refer to one and the same
person.

Q. You said that Ernesto Bernabe was handcuffed, you know where was his companion at the time, who
was a woman?

A. I noticed she was already inside the car.

Q. What car are you referring, the green Lancer car or the black car without plate number?

A. The green Lancer car, sir.

Q. You said you saw the woman, were you able to look and see her that evening?

718
A. Yes, sir.

Q. Would you still be able to identify her if you see her again?

A. Yes, sir.

Q. I am showing to Exh. X-4 will you look at this picture, and tell us what relation has this person in this
picture to the one who was together with the man who was handcuffed?

A. She is the woman I am referring to, sir, whom I saw inside the green Lancer, they are one and the
same.

Q. You said you saw the man whom you identified as Ernesto Bernabe being handcuffed by the two
policeman, how far were you from them?

A. Five armslength (sic), sir.

Q. By the way, this front of Dayrit Hamburger house and this Rotonda Wine Store, are they lighted at
night?

A. Yes, sir.

Q. What kind of light illuminates the area?

A. Mercury lamp, sir.

Q. How many lights are there?

A. Many, sir.

Q. You said there were lights, in the area during nighttime, can you describe to us from your point of
comparison in daytime whether it is bright or not more particularly at the time of the incident in
question?

A. It was bright just like daytime, sir.20cräläwvirtualibräry

As to the killing of the two victims, Raul Morales testimony about what transpired in the warehouse in
the morning of April 26, 1990 satisfied the trial court beyond reasonable doubt, as being consistent and
credible, sufficient to convict all the accused for the crime of murder. He testified positively, that on that
fateful morning, two cars entered the warehouse after he opened the gate. Lising and Garcia alighted
from the green Lancer car and brought out from the backseat Cochise and Beebom. The other black car
carried Dizon and Manga. Soon after, Manalili entered the gate which was left open by Lising, and stood
beside Beebom. Cochise, whose hands were tied with a wire was brought to an area far from Beeboms
view. He was stabbed by Garcia, and then by Lising. After killing Cochise, the four men carried him out of
the warehouse while Manalili stayed with Beebom.

The trial court was even more convinced about the witnesses credibility after conducting an ocular
inspection of the scene of the crime.

ATTY. LLORENTE:

Q. Now, Mr. Morales, from yesterdays hearing, you mentioned that at about 2:090, April 26, you were
awakened by a sound of a motor vehicle and somebody was knocking. Do you recall having stated that
yesterday?

A. Yes, I remember that, sir.

Q. Now, apart from the sound of the motor vehicle and the knock at the door, what else do you recall?

719
A. Somebody called for Aida, sir.

Q. What else?

A. I heard somebody said Aida, you open the door and she told me just open the door, Sir.

Q. And what did you do?

A. I opened the door, Sir.

xxx.

Q. After the gate was opened, what happened?

A. Two (2) cars got inside, Sir.

Q. Can you describe the first car that entered he gate.

A. The first one that got inside was colored green, Sir.

Q. Do you know the make model or kind of vehicle that is colored green?

A. It was a Lancer car, Sir.

Q. Did you notice also who was driving?

A. Yes, I saw, Sir.

Q. Who?

A. It was Roberto Lising, Sir.

Q. Was there anybody else inside the car?

A. There was, Sir.

Q. Who were inside that car?

A. One was in front and two were at the back seat, Sir.

Q. The one in front, do you know who was that?

A. Yes, Sir.

Q. Who?

A. Felimon Garcia, Sir.

Q. Was that the first time that you met this person?

A. Felimon Garcia?

ATTY. LLORENTE:

Yes.

A. That was the third time, Sir.

720
Q. Why do you know Felimon Garcia?

A. Because he is a cousin of Ligaya Fausto, Sir.

Q. Can you please look around the Courtroom and tell us if you can point to this Felimon Garcia and if
you can, please do.

That man, Sir.

(Witness pointing to a man in white t-shirt who when asked answered by the name of Felimon Garcia).

Q. What about the two (2) passengers at the back of the Lancer car, who were they?

A. There was one woman and one man but I dont know their names, Sir.

Q. Lets go to the man. Did you see his condition? Physical condition, his appearance?

A. Tall, medium built, good-looking and hairy on the arms. He was wearing white t-shirt and was in
shorts, Sir.

Q. What about the condition under which this person was seated at the back of the car, can you
describe that?

A. I was not able to observe how he was seated, all I know is that I saw him when he went out of the car,
Sir.

Q. What about the other passengers, the woman passenger. Can you describe her.

A. She was medium built, she was beautiful and fair complexioned puti.

Q. Now, lets go to the second car. Did you notice the driver of the second car?

A. Yes, sir.

Q. Did you recognize this person?

A. Yes, Sir.

Q. Would you be able to identify him?

A. Yes, Sir.

Q. Can you please look around if this person driving the second car is in this Courtroom and if so, please
point to him.

(witness pointing to a man in white shirt who when asked answered by the name of ROBIN MANGA).

Q. Was there anybody else inside the second car aside from the driver?

A. There was, Sir.

Q. Would you be able to identify that person?

A. Yes, Sir.

Q. Can you again look around the Courtroom and tell us if that person is present and if so, please point
to him?

721
A. (Witness pointing a man in stripe shirt who when asked answered by the name of Enrico Dizon).

Q. Now, the two (2) cars having entered the premises, could you please tell us what happened with
these two (2) cars after entering the premises?

A. I saw Roberto Lising went behind the place of our sleeping quarters and got a wire, Sir.

xxx

Q. How did that woman reach that portion of the Lancer car? Can you describe that?

A. She was brought to that portion by he companion of Rambo, Sir

Q. Who in particular?

A. That man, Sir, (witness pointing to accused Robin Manga).

Q. What about the man, how was he brought to that portion which you have identified from the Lancer
car?

A. It was Roberto Lising who brought him there, Sir.

Q. All by himself?

A. They were two (2), Sir.

Q. Whos the second aside from Mr. Lising?

A. (witness pointing to accused Enrico Dizon).

Q. After the man and the woman were placed in that position as you described, what happened?

A. Felimon Garcia came out and he was bringing with him a spade (pala), Sir.

Q. Did you notice where Felimon Garcia got that spade or pala?

A. Yes, Sir.

Q. Where?

A. They got it from the Lancer car, Sir.

Q. In what particular portion of the Lancer car?

A. At the back compartment of the car, Sir.

Q. Incidentally, Mr. Morales, what happened to the gate? Who closed the gate?

A. It was they who closed the gate, Sir.

Q. Did anybody else arrive?

A. Yes, there were, Sir.

Q. Who?

722
(witness pointing to accused Rodolfo Manalili) witness pointed to a man in eyeglasses who when asked
answered by the name of Rodolfo Manalili.

Q. Now, this person that you said arrived, how did he arrive?

A. When he arrive, he went direct to the woman and talked with the woman, Sir.

Q. Did you hear any conversation between that man as you identified as accused Manalili to the woman
that you pointed to here in the sketch?

A. I only heard Dont harm us. We have done no wrong.

p. 46 missing

person that you have described in that area present at that time?

A. They were sweethearts, Sir.

Q. Let me just refer you to the woman that was brought out of the green car, Lancer car. Did you ever
come to know his name later on?

A. When I read it from the newspaper, Sir.

Q. And what was the name that you were able to read from the paper that made you identified that
woman from the Lancer car?

A. Beebom, Sir.

Q. What is the complete name?

A. Beebom Castaos, Sir.

Q. What about the man. Did you also get his complete name.

A. Yes, Sir.

Q. What is his complete name?

A. Cochise Bernabe, Sir.

Q. Now, after this man that you have just identified as Cochise Bernabe, after his hands were tied at the
back, what else did Mr. Lising and Mr. Dizon do with this man?

A. Felimon went inside the bodega, Sir.

Q. And what did Felimon do?

A. After that, he went towards Lising, Sir.

Q. And when Felimon approached Lising, what happened?

A. Felimon was given a knife, Sir. (Witness in the vernacular said kutsilyo)

Q. What did Felimon do with the knife?

A. They went towards the man, Sir.

723
Q. And what happened?

A. Then he stabbed the man once, Sir.

Q. How? Can you demonstrate?

A. Yes, Sir.

ATTY. LLORENTE:

Please do.

(witness demonstrating by placing his left hand on the height of his shoulder and making a thrust by his
left hand forward).

Q. What else happened after what you had demonstrated happened?

A. Rambo grabbed and took the knife from Felimon, Sir.

Q. And what did Rambo do with the knife?

A. He also stabbed the man, Sir.

ATTY. LLORENTE:

Can you demonstrate to us how did he do this?

A. Yes, sir. (witness demonstrating by putting his left hand forward at the height of his shoulder and
making a forward thrust by his right hand several times).

Q. Did you notice what portion of Cochise was stabbed when Lising was doing this?

A. Yes, Sir.

Q. Where?

A. Inside the bodega, Sir. Sa may bodega.

xxx.21cräläwvirtualibräry

The defense, however, would discredit the of Raul Morales alleging that he was not a credible witness
considering that there were inconsistencies and improbabilities in his testimony. To them, he was a
rehearsed witness, since he was taken from the NBI to the residence of Governor Remullas son, a good
friend of Cochise, as sanctuary during the trial of this case.

Some of the inconsistencies pointed out are as follows: (1) in the sworn statement, Morales claimed that
the black car driven by Lising entered the compound ahead followed by the green car driven by Garcia
while he stated in his testimony in court that the green Lancer car was first to enter, driven by Lising
with Garcia in the passenger seat followed by the black car with Manga and Dizon on board; (2) in his
statement, Morales indicated that he did not see the actual killing of Cochise since the victim was
brought out, while he testified in court that Garcia and Lising stabbed the victim inside the compound;
(3) Morales made mention of a total of five persons, including the two victims, in the early morning of
April 26, while in court, he identified the five accused seen with the two victims.

In has been held that inconsistencies and discrepancies in the testimony referring to minor details and
not upon the basic aspect of the crime do not impair the witness credibility.22 These inconsistencies
even tend to strengthen, rather than weaken, the credibility of witnesses as they negate any suspicion
of a rehearsed testimony.23cräläwvirtualibräry

724
The defense finds it also improbable for Morales to have witnessed the events at such a vantage point
from the steps of the hut, since the perpetrators of a crime would not unnecessarily expose themselves
in the committing the act to prevent possible identification.

Obviously, it never occurred to Lising at the time that Morale, who was under his control and who was
afraid of him, would ever testify against him.

Manalili makes capital of the fact that Morales did not mention him at all in his prior sworn statement as
being present at the scene of the crime. For Manalili, the omission of his name was a significant
development as it appeared improbable that a vital witness will miss out an alleged perpetrator if
indeed he was present at the scene of the crime.

Raul Morales himself admitted later on that there were omissions in his sworn statement made before
the CAPCOM because he was afraid of his employer Lising and his companions. Understandably, he was
reluctant to volunteer all the information about the killing for fear that he would suffer the same fate of
Cochise and Beebom. The initial reluctance of witness to volunteer information about a criminal case
and their unwillingness to be involved in the criminal investigation is of common knowledge and has
been judicially declared as insufficient to affect credibility.24 Besides, at that time, Raul Morales was
merely concerned with bringing out his story without really paying particular attention to the details. He
related that his employer Lising and companions brought a man and a woman to their warehouse and
killed them both. He saw Cochises face on the papers and recognized him to be the man whom Lising s
group killed. Morales only mentioned Lising and Garcias names in his sworn statement because they
were the only ones known to him. Such omission and discrepancies should not be taken against him. It
bears emphasis that a sworn statement or an affidavit does not purport to be a complete compendium
of the details of the event narrated by the affiant.25 It is a matter of judicial experience that a sworn
statement being taken ex parte is almost always incomplete and often and often inaccurate. Thus,
discrepancies between the statements of the affiant in his sworn statement and those made on the
witness stand do not necessarily discredit him.26 There is no rule of evidence to the effect that omission
of certain particulars in an affidavit or sworn statement would estop an affiant in making an elaboration
thereof during the trial.27 Whenever there is an inconsistency between the affidavit and testimony of
the witness, the latter commands greater weight.28cräläwvirtualibräry

Roberto Lising discredits Raul Morales as having a motive in implicating him to the crime since he
quelled a rally staged by Morales who was the most arrogant and stubborn of Faustos employees,
seeking an increase in pay. As pahinante in their LPG business, Morales, according to Lising, was
oftentimes reprimanded for not doing his job well and held responsible for lost gas tanks.

The motive imputed to Morales, a mere pahinante, if he were arrogant and stubborn, would be
tolerated by Lising, the live-in partner of Fausto.

By and large, the defenses raised by the accused do not persuade us. When it comes to the issue of
credibility of the witness, appellate courts give much weight and respect to the findings of the trial court
since the trial court is in the better position to examine real evidence as well as observe the demeanor
of the witness.29 With the eyewitnesses account of Froilan Olimpia and Raul Morales, the culpability of
the accused for the crimes charged have been established.

This brings us to the third issue of whether or not there was conspiracy.

Conspiracy is a unity of purpose and intention in the commission of a crime.30 Where two or more
persons come to an agreement concerning the commission of a felony and decide to commit it then
conspiracy exists. While direct evidence is not necessary, conspiracy may be inferred from and proven
by acts of the accused themselves when during and after said acts point to a joint purpose and design,
concerted action and community of interest.31cräläwvirtualibräry

Undoubtedly, the trial court did not err in finding the existence of conspiracy in this case. With the
interlocking confessions of Manalili, Garcia and Lising, the group came to an agreement to effect the
arrest of Robert Herrera for a considerable sum of P50,000.00. The stake-out at the Castaos residence,
the tailing of the car, the abduction at Dayrits Ham and Burger Restaurant and the detention in the Valle

725
Verde Motel and the subsequent killing of the two victims all show that all the accused acted in unison
and cooperated with each other towards the accomplishment of a common criminal design. Where
conspiracy is established, the act of one is the act of all.

Garcia, for his part, prays that his liability be mitigated on grounds of lack of intent or motive, acts made
under the compulsion of an irresistible force, and voluntary surrender, which if considered would make
him merely an accomplice to the crime. Unfortunately, these defenses and unavailing.

To be exempt from criminal liability, a person invoking irresistible force or uncontrollable fear must
show that the force exerted was such that it reduced him to a mere instrument who acted not only
without will but against his will.32 That compulsion must be of some character as to leave the accused no
opportunity for self-defense in equal combat of for escape.33cräläwvirtualibräry

Garcias participation and presence from the time the abduction was hatched, up to the killing of the
victims is undisputed. He was very well aware of Manalilis plans. He was instrumental in introducing
Lising to Manalili. Likewise, Lisings intentions to silence both Cochise and Beebom at the end upon
realizing an alleged mistake was known to him. He did not do anything to deter the commission or to
report the crimes immediately thereafter. In fact, he stated that he and Lising saw each other after the
incident but never mentioned anything about it, which only goes to show their intention of concealing
the crime. Only after several months of being hunted, did he send feelers for this surrender.

Where conspiracy is established, the precise modality or extent of participation of each individual
conspirator becomes secondary since the act of one is the act of all.34 The degree of actual participation
in the commission of crime is immaterial. In People v. Degoma, the Court explained:

x x x. One who joins a criminal conspiracy in effect adopts as his own the criminal designs of his co-
conspirators; he merges his will into the common felonious intent. A person who embraces a criminal
conspiracy is properly held to have casts his lot with his fellow conspirators and to have taken his
chances that things may go awry and that the offended party may resists or third persons may get killed
in the course of implementing the basic criminal design. To free himself from such criminal liability, the
law requires some overt act on the part of the conspirator, to seek to prevent commission of the second
or related felony or to abandon or dissociate himself from the conspiracy to commit the initial
felony. (People v. Salvador, 163 SCRA 574, 580-582 [1988]; People v. Bazar, 162 SCRA 609, 617 [1988];
People v. Escober, 157 SCRA 541 567 [1988]; People v. Pelagio, 20 SCRA 153, 159-160 [1967] (Italics
supplied).35cräläwvirtualibräry

For the same reasons. Manalili can not likewise be exonerated from the crime. We have examined
carefully the arguments of the Solicitor General in urging Manalilis acquittal, but the facts and
circumstances surrounding the case do not support his stand.

We find it difficult to accept Manalilis contention that he had contracted the services of policemen to
effect the legal arrest of Robert Herrera, the main suspect in the killing of his brother, Delfin Manalili.
Equally preposterous is his assertion that upon arriving at the Valle Verde Hotel in San Fernando,
Pampanga, he realized there was a mistake in the identities of the persons arrested, so he insisted that
they be released. Neither is there factual basis to his claim that he had every reason to protect the life of
Beebom, in particular, since the latter is a principal witness against Robert Herrera, the suspect in the
shooting of his brother.

In the first place, why did he take it upon himself to employ persons unknown to him to effect the arrest
of Herrera? The warrant of arrest of Herrera, if one was really issued, was never presented in evidence.
In the second place, the surreptitious meeting of Manalili with Lising arranged by Garcia, the
surveillance or stake out of the Castaos residence, the manner of abduction where the victims were
blindfolded, handcuffed and gagged at Valle Verde Motel, cannot certainly be considered as acts in the
regular performance of their duties as policemen. Thirdly, if it was true that Manalili just wanted the
arrest of Robert Herrera, why did he have to seek the assistance of Pampanga policemen? It would have
been more logical and expedient to have utilized the NBI or Quezon City Police especially when the
alleged warrant of arrest was issued by a Quezon City court. After all, is was not difficult to locate Robert
Herrera as he was reportedly frequenting the Castaos residence in Quezon City. Fourthly, it does not

726
stand to reason why the victims were taken to Pampanga after allegedly being arrested in Quezon City.
It would have been more cogent for the appellants to have delivered the victims to the nearest station
of the Quezon City Police Department considering that the warrant of arrest was allegedly issued by a
Quezon city court. If arrest was really in the minds of the accused, why did they hole-up with the victims
in a motel when they arrived in Pampanga? Finally, if they were bent on legally arresting one Roberto
Herrera, it was not necessary for them to also take the woman companion of the person they mistook as
Herrera.

All these only shows that Manalili had premeditated in his mind a more sinister plot than merely
effecting a legal arrest.

It is an unmitigated absurdity for Manalili to pretend that upon his realization of the mistake in their
arrest, he insisted upon the release of the victims since he had every reason to keep Beebom alive. If he
had just a bit of concern for Beeboms safety, why did Manalili leave for Manila without bringing her and
Cochise with him to make sure that no harm would befall them, knowingly full well of Lisings resolve just
revealed to him to silence both victims? What should be nearer the truth in that Beebom and Cochise
became aware of Manalilis presence at the motel together with the other accused and this was the
added reason why the two had to be eliminated, to do away with having to explain why he was at the
scene. His pretension that he wanted to keep Beebom from harms way because she was to have
testified in the prosecution of his brother brings hollow. It cannot be assumed that had she lived she
would have testified in court and pointed to Robert Herrera as the killer of Manalilis brother.

In any case, assuming the remote possibility, the mistake in the identity of the victims does not
exonerate Manalili pursuant to the rule that one who performs a criminal act should be held liable for
the act and for all its consequences although the victim was not the person whom the fellow intended
to injure.36cräläwvirtualibräry

We are reminded of the rule that the conviction must not rest on the weakness of the defense but on
the strength of the prosecutions evidence. In the instant case, apart from its interlocking sworn
statements of appellants, Raul Morales positive testimony that he saw Manalili enter the bodega, and
stand beside Beebom, while Cochise was being killed, convinces us with moral certainty that Manalili is
equally guilty of the crime charged. His presence in the warehouse clearly belies his claim that from the
motel, he left for Manila already. As against the positive testimony and identification, mere denials of
the accused cannot prevail to overcome conviction by the court.37 The inaction of Manalili where he
could have prevented the killings only reveal his complicity to the crime. Manalili is certainly part of a
complete whole without whom there would be no Cochise-Beebom double murder case.

Furthermore, the decision of the trial court exonerating Manalili and Garcia for the crime of Kidnapping
and finding the rest of the accused guilty for the crime of Slight Illegal Detention only does not escape us.
There being conspiracy, all the accused should be equally guilty for the crimes as charged. Unfortunately,
we can no longer convict Manalili and Garcia for Kidnapping in consonance with the constitutional right
against double jeopardy. Nonetheless, they stand to suffer the penalty of Reclusion Perpetua for the
double murder. The crime of Slight Illegal Detention should be qualified to Serious Illegal detention
under Article 267 of the Revised Penal Code considering that a female victim was involved.

WHEREFORE, this Court hereby renders judgment as follows:

1. The decision of the lower court finding accused Rodolfo Manalili, Roberto Rambo Lising, Felimon
Garcia, Robin Q. Manga and Enrico Dizon guilty beyond reasonable doubt of the crime of double murder,
including their civil liability is hereby AFFIRMED in toto, and

2. The decision of the lower court finding accused Roberto Rambo Lising, Enrico Dizon, and Robin Manga
guilty of the crime of slight illegal detention aggravated by the use of motor vehicle is hereby MODIFIED,
in that the said accused are hereby declared guilty of the crime of Kidnapping under Article 267 (4) of
the Revised Penal Code, and are hereby sentenced to suffer the penalty of reclusion perpetua.

SO ORDERED.

727
Davide, Jr. (Chairman), Bellosillo, and Vitug, JJ., concur.

Republic v. Sandiganbayan, 406 SCRA 190 July 15, 2003 (supra)

[G.R. No. 121982. September 10, 1999]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LEONILO CUI y BALADJAY, BEVERLY CUI y CANTUBA,
EDUARDO BASINGAN y SABELLO, WILFREDO GARCIA, alias TOTO, JOSELITO GARCIA, alias TATA
GARCIA, EMMANUEL GARCIA, alias MAWI, a certain SADAM, BIENVENIDO NACARIO y PARDILLO, alias
REY NACARIO, a certain EDGAR, a certain BENJIE, LUIS OBESO, alias LEOS, HILARIA SARTE, alias
LARING, and YUL ALVAREZ, Accused.

LEONILO CUI y BALADJAY, BEVERLY CUI y CANTUBA, LUIS OBESO, alias LEOS, and HILARIA SARTE, alias
LARING, Accused-Appellants.

DECISION

PUNO, J.:

In the evening of December 5, 1990, some ten (10) armed robbers raided the compound of Johnny and
Rose Lim on Edison Street, Lahug, Cebu City. The Lims, their three (3) children, and the employees of the
family-owned business, Williams Educational Supply, were able to see the faces of the leader Wilfredo
alias Toto Garcia and two of his men, Mawe Garcia and a certain Edgar. The other robbers could not be
identified as they had flour sacks over their heads.

The robbers carted away cash and jewelries worth twenty thousand pesos (P20,000.00). They also
blindfolded and forcibly abducted seventeen (17) year old Stephanie, the youngest daughter of the Lims.
They demanded a ransom of one million pesos (P1,000,000.00) for her release.

Johnny Lim turned over to Toto Garcia the ransom amount in the afternoon of the next day at an
arranged meeting place. Stephanie, in turn, was released to her father.

Initially, the Lims kept the crime a secret. But on the third day, they reported the kidnapping to the
Philippine National Police Cebu Metropolitan District Command (Cebu Metrodiscom) at Camp Sotero,
Cabahug, Cebu City. The Metrodiscom Intelligence Security Team (MIST)[1 conducted an investigation
and Johnny Lim was shown photographs of criminal elements to identify the suspects. From around
ninety (90) photographs, Lim picked that of Toto Garcia.

The identification of Toto Garcia gave the MIST a valuable lead. Toto Garcia was known as the leader of
a group of armed robbers called the Baong Gang. The gangs base of operation was pinpointed at Quiot,
Pardo, Cebu. When the police learned from Lim that his house guard, Eduardo Basingan, hailed from
Quiot, Pardo, Cebu City, they decided to interrogate him.

Basingans interrogation broke the case wide open. He identified Toto Garcia, Mawe Garcia and Edgar as
the three (3) who did not wear masks, Sadam and Rey as the two (2) who held him and the Lims at
gunpoint, and Tata Garcia, Yul Alvarez, a certain Benjie, a certain Leos and a certain Laring as the look-
outs who stayed outside the Lim compound. He named Toto Garcia as the chief plotter of the crime at
bar, and revealed that his neighbors and close family friends, the spouses Leonilo and Beverly Cui,
participated in the plan. Basingan said he was asked to join the plot and was assured that he would not
be under suspicion because he would be placed at gun point together with the other members of the
Lim household when the crime is committed. However, he refused to join the plot during the December
2, 1990 meeting of the group at the residence of the Cuis in Quiot,. Pardo, Cebu City. Leonilo Cui even
invoked their close ties as godfathers of each others children but he was unmoved. At the meeting were
Toto Garcia, Mawi Garcia, Edgar, Rey, Sadam and the Cuis.

On December 18, 1990, Basingan executed a sworn statement[2 reiterating these revelations in writing.
Johnny and Rose Lim then formalized their complaint by executing a Joint Affidavit.[3 The members of

728
the Metrodiscom Intelligence Security Team also executed a Joint Affidavit[4 relating their investigation.
With these as bases, Assistant Prosecutor Bienvenido N. Mabanto, Jr. filed an Information[5 for
Kidnapping with Ransom against Basingan, the Cuis, and the members of the group of Toto Garcia as
identified by Basingan in his sworn statement.

On the same day, December 18, 1990, Basingan and Leonilo Cui were arrested.[6 Beverly Cui was also
taken into custody on January 17, 1991.[7 The Cuis, however, were later granted bail and their plea for
preliminary investigation was given due course.[8

On March 14, 1991, Joselito Tata Garcia, Hilaria Sarte and her live-in partner, Luis Obeso, referred to by
Basingan as Laring and Leos, respectively, were arrested in the neighboring Negros Island. The next day,
however, Tata Garcia died due to hemorrhage, severe, secondary to gunshot wounds.[9 Upon
presentation of his death certificate, the trial court ordered his name deleted from the information.

On March 22, 1991, Obeso and Sarte filed their own motions for preliminary investigation.[10 Their
motions were granted in an Order dated April 2, 1991.[11

On April 1, 1991, Basingan executed a second sworn statement[12 reiterating his first. In addition, he
detailed the role of the Cuis in the planning of the crime at bar.

After preliminary investigation, Prosecutor Manuel J. Adlawan found that the participation of the Cuis
was only that of accomplices. Thus, on May 13, 1991, an Amended Information was filed downgrading
the charge against the Cuis as mere accomplices in the kidnapping with ransom of Stephanie Lim. It
reads:

That on or about the 5th day of December, 1990, at about 9:00 P.M. more or less and for sometime
subsequent thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court,
the said accused, all private individuals, conniving and confederating together, and mutually helping
with one another, armed with unlicensed firearms, with deliberate intent, with intent of gain, enter the
dwelling house of spouses Johnny and Rose Lim and while inside therein with violence and intimidation,
take and carry away cash and jewelries in the amount of P20,000.00 from the possession of and
belonging to spouses Johnny and Rose Lim and that on the occasion thereof, and in connection
therewith and for the purpose of extorting ransom from said spouses Johnny and Rose Lim, herein
accused, in pursuance of their superior strength did then and there kidnap and detain Stephanie Lim 17
years old [sic] daughter of spouses Johnny and Rose Lim and while Stephanie Lim was under detention
in the place other than the latters dwelling place, the said accused demanded the amount of
P1,000,000.00 for the release of Stephanie Lim to which demands and for fear of the latters life spouses
Johnny and Rose Lim delivered and caused to be delivered the amount of P1,000,000.00 to said accused;
and accused-

(1) Leonilo Cui y Baladjay and

(2) Beverly Cui y Cantuba

who are hereby charged for the same offense as accomplices cooperate in its execution by previous acts
and subsequently profiting in the effects of the crime by receiving the amount of P10,000.00 from the
principal accused as their share of the loot, to the damage and prejudice of Johnny, Rose and Stephanie
Lim in the total amount of P1,020,000.00.

CONTRARY TO LAW.13

On May 15, 1991, Basingan, the Cuis, Obeso and Sarte were arraigned and they all pleaded not
guilty.[14 On June 27, 1991, Basingan escaped from prison.[15

Trial on the merit ensued against the Cuis, Obeso and Sarte. Basingan was tried in absentia.

729
On February 13, 1992, Bienvenido Nacario, alias Rey Nacario, was arrested. On arraignment on April 13,
1992, he pleaded not guilty. However, on May 5, 1992, he, too, escapedfrom detention and remains at
large to this date.

On August 18, 1992, the prosecuting fiscal manifested before the trial court that, per newspaper report,
Toto Garcia had been killed in Davao.

On December 6, 1993, the trial court convicted the Cuis, Obeso, Sarte, Basingan and Nacario.[16 It held:

In the light of the totality of the evidence adduced in the case at bar and the law and aforementioned
jurisprudence, the Court is convinced that a conspiracy was hatched by all the accused in perpetrating
the crime charged. For instance, as borne out by the testimony of Sgt. Narciso Ouano, Jr., police
investigator of the Cebu Metrodiscim [sic], accused Eduardo Basingan declared during his investigation
that the plan was indeed carried out and he knew all the persons who participated in that robbery,
naming Toto Garcia, Tata Garcia, Mawi Garcia, Rey, Edgar, Sadam, Yul Alvarez, Benjie, Leo and Laring.
When the named robbers entered the residence of his master Johnny Lim, the robbers were wearing
masks except Toto Garcia, Mawi Garcia and Edgar. The others, Rey, Sadam, Laring, Leo, Benjie and Yul
Alvarez were wearing masks but Basingan was still able to identify them in spite of the fact that they
were wearing masks because these persons were familiar to him already as they used to frequent the
house of Leonilo and Beverly Cui. At the time of the robbery, only Toto Garcia, Mawi Garcia, Edgar, Rey
and Sadam went inside the house of his master while Yul Alvarez, Benjie, Leos and Laring were guarding
outside the building. On December 7, 1990, two days after the robbery, he was called by his Comadre
Beverly Cui and the latter handed to him the amount of P40,000.00 in her house, saying that Toto Garcia
left the said amount to be given to him. During their talk, Basingan verbally told them about the incident
relative to the kidnapping and his having received P40,000.00 from Toto Garcia as his share of the
ransom. A formal investigation was conducted by Sgt. Armando Ballon in the presence of Atty. Elias
Espinosa who assisted Eduardo Basingan.

x x x The denial of accused Luis Obeso and Hilaria Sarte as to their participation in the commission of the
crime does not hold water for they were duly identified even during the initial phase of the commission
of the crime. They were the renters of the house where Stephanie, the kidnapped victim, was placed.
Stephanie had identified the house. The flight of these two accused to Bacong, Dumaguete City is
indicative of their guilt. x x x

The prosecution has indeed established the guilt of the accused beyond reasonable doubt as against
accused Eduardo Basingan, Bienvenido Nacario y Pardillo, @ Rey Nacario, Luis Obeso, @ Leos, Hilaria
Sarte, @ Laring, Leonilo Cui y Baladjay and Beverly Cui y Cantuba, the latter two are only as accomplices,
to the crime of kidnapping with ransom. x x x.17

They were sentenced to suffer the following penalties:

WHEREFORE, in view of all the foregoing considerations, JUDGMENT is hereby rendered convicting the
accused Eduardo Basingan, Bienvenido Nacario y Pardillo @ Rey Nacario, Luis Obeso, @ Leos, Hilaria
Sarte, @ Laring, as principals for the crime of KIDNAPPING WITH RANSOM and shall suffer the penalty of
reclusion perpetua and the accused Leonilo Cui and Beverly Cui being accomplices, to suffer an
imprisonment of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years,
eight (8) months and one (1) day of reclusion temporal, as maximum. They are further ordered to jointly
restitute to the victim the ransom money less the amount recovered. Accused Hilaria Sarte and Luis
Obeso, being detention prisoners are credited in full during the whole period of their detention
provided that they signify in writing that they will abide with the rules and regulations of the
penitentiary.

xxx

SO ORDERED.18

Obeso and Sarte filed their Notice of Appeal[19 on May 19, 1994. The Cuis filed theirs[20 on May 31,
1994.

730
In their Brief dated April 21, 1997, Obeso and Sarte prayed for their acquittal on the following grounds:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANTS ON THE BASIS OF THE
EXTRA-JUDICIAL STATEMENT MADE BY EDUARDO BASINGAN AND THE TESTIMONY OF SGT. NARCISO
OUANO JR. THEREON, WHICH ARE HEARSAY EVIDENCE.

II

THE TRIAL COURT ERRED IN FINDING THE TWO ACCUSED-APPELLANTS AS PRINCIPALS BY CONSPIRACY
DESPITE THE ABSENCE OF ANY COMPETENT AND CONVINCING PROOF OF THEIR CULPABILITY.21

On June 25, 1997, the Cuis also filed their Brief. They contended:

I. THE TRIAL COURT ERRED IN NOT FINDING THAT THE CONSTITUTIONAL RIGHTS OF APPELLANTS-
SPOUSES LEONILO CUI AND BEVERLY CUI TO REMAIN SILENT, TO COUNSEL AND AGAINST SELF-
INCRIMINATION HAD BEEN GROSSLY VIOLATED DURING THEIR CUSTODIAL INVESTIGATION.

II. THE TRIAL COURT ERRED IN NOT EXCLUDING HEARSAY EVIDENCE OFFERED TO PROVE ALLEGED
CONSPIRACY AND PARTICIPATION OF APPELLANTS-SPOUSES LEONILO CUI AND BEVERLY CUI, AS
ACCOMPLICES IN THE CRIME CHARGED.22

On August 13, 1998, the Office of the Solicitor General filed, in lieu of an Appellees Brief, a
Manifestation[23recommending the acquittal of the Cuis, Obeso and Sarte on the ground that the
prosecution failed to present adequate proof of their guilt beyond reasonable doubt. It was
postulated:

It is clear that the only piece of evidence that would link appellants directly to the kidnapping of
Stephanie Lim is the Sworn Statement executed by Eduardo Basingan (Exhibit C) implicating appellants
and describing their participation in detail. Basingans extra-judicial confession, however, is inadmissible
for being hearsay as he was not presented by the prosecution as its witness, he having escaped after
arraignment. Hence, appellants were not afforded the opportunity to cross-examine him. Cross-
examination is an indispensable instrument of criminal justice to give substance and meaning to the
constitutional right of the accused to confront the witnesses against him and to show that the
presumption of innocence has remained steadfast and firm x x x. It was intended to prevent the
conviction of the accused upon depositions or ex-parte affidavits, and particularly to preserve the
right of the accused to test the recollection of the witness in the exercise of his right of cross-
examination x x x.

Perhaps realizing the futility of relying solely on Basingans extra-juridical (sic) confession in order to
secure appellants conviction, the prosecution presented Sgt. [O]uano who testified on the informal
investigation he conducted on Basingan. Part of his testimony was the same extra-judicial confession
made by Basingan which was strongly objected to by appellants. It cannot be overemphasized that Sgt.
[O]uanos testimony is not based on his own personal knowledge but on other evidence. He has no
personal knowledge of the participation of the appellants in the kidnapping of the victim. Hence, his
testimony is purely hearsay evidence and has no probative value, whether objected to or not x x x.24

There is no question that Basingan escaped and never testified in court to affirm his accusation against
the Cuis, Obeso and Sarte. Thus, the trial court committed reversible error in admitting and giving
weight to the sworn statements of Basingan. In the same vein, the testimony of Sgt. Ouano confirming
the content of Basingans sworn statements is not proof of its truth and by itself cannot justify the
conviction of appellants. Both the extrajudicial sworn statements of Basingan and the testimony of Sgt.
Ouano are clear hearsay. Indeed, the records show that the trial court itself admitted Basingans
statements merely as part of the investigation of Sgt. Ouano, thus:

Q What else did Mr. Basingan tell you?

731
A That it was the group of Toto Garcia who barged into the residence of Mr. Lim and that it was that
group of Toto Garcia who kidnapped the daughter of Mr. Lim and also it was that group that gave him
P40,000.00 out of the ransom money.

COURT:

xxx

Q Were you able to determine who composed that group?

A According to Basingan the group was composed of Wilfredo Garcia as the leader, Joselito Tata Garcia,
Mawi Garcia, Edgar, a certain Rey, a certain Leon and a certain Laring.

ATTY. GONZALEZ:

We move to strike out the answer of this witness. It is hearsey [sic]. The answer[s] premise [is]
according to.

FISCAL ADLAWAN:

That independence are relevant question which took action [sic].

COURT:

Overruled.

xxx

FISCAL ADLAWAN:

Q Was there any inquiries [sic] made by you on Eduardo Basingan how did he happen to know this
group of Toto Garcia?

ATTY. GONZALEZ:

We object. I understand there are two investigations. He conducted his own investigation.

ATTY. GONZALEZ: (Cont)

Which investigation is he referring to.

COURT:

As preliminary investigation.

ATTY. GONZALEZ:

Before the formal investigation he conducted his own investigation?

COURT:

Answer.

A Yes, I did inquire from him and that he told me Toto Garcia is frequently in the house of Leonilo and
Beverly Cui and that he was introduced by the couple to Toto Garcia in one of those visits of Toto Garcia
in the house and that subsequently thereafter he knew of the persons of [sic] Toto Garcia is associationg
[sic] with because Toto Garcia went to the house of Leonilo Cui.

732
ATTY. GONZALEZ:

May we move to strike out from the records for being that he has no personal knowledge as to that
information.

COURT:

Objection overruled.

ATTY. GONZALEZ:

In that case, your Honor may we make it of record that I am interposing a continuing objection as to
the series of questioning considering that we strongly belive [sic] that what was given by this witness
is hearsay.

COURT:

The objection is noted. The witness is only testifying regarding his investigation.25

Despite its ruling, the trial court used the statements of Basingan, as testified to by Sgt. Ouano, as proofs
of the guilt of the Cuis, Obeso and Sarte. Undeniably, they are hearsay for any oral or documentary
evidence is hearsay by nature if its probative value is not based on the personal knowledge of the
witnesses but on the knowledge of some other person who was never presented on the witness
stand.[26

Conviction cannot be based on hearsay evidence. In the 1996 case of People v. Raquel,[27 we squarely
addressed the issue of whether or not the extra-judicial statements of an escaped accused implicating
his co-accused may be utilized against the latter. There we ordered an acquittal and held:

A thorough review of the records of this case readily revealed that the identification of herein
appellants as the culprits was based chiefly on the extrajudicial statement of accused Amado Ponce
pointing to them as his co-perpetrators of the crime. As earlier stated, the said accused escaped from
jail before he could testify in court and he has been at large since then.

The extra-judicial statements of an accused implicating a co-accused may not be utilized against the
latter, unless these are repeated in open court. If the accused never had the opportunity to cross-
examine his co-accused on the latters extra-judicial statements, it is elementary that the same are
hearsay as against said accused. That is exactly the situation, and the disadvantaged plight of appellants,
in the case at bar.

Extreme caution should be exercised by the courts in dealing with the confession of an accused which
implicates his co-accused. A distinction, obviously, should be made between extra-judicial and judicial
confessions. The former deprives the other accused of the opportunity to cross-examine the confessant,
while in the latter his confession is thrown wide open for cross-examination and rebuttal.

The res inter alios rule ordains that the rights of a party cannot be prejudiced by an act, declaration, or
omission of another. An extra-judicial confession is binding only upon the confessant and is not
admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual
convenience, a mans own acts are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.28

The res inter alios has exceptions. Thus, Section 30 of Rule 130 provides:

The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given
in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or
declaration.

733
For this provision to apply, the following requisites must be satisfied:

a. That the conspiracy be first proved by evidence other than the admission itself;

"b. that the admission relates to the common objects; and

"c. that it has been made while the declarant was engaged in carrying out the conspiracy.29

The general rule is that extra-judicial declarations of a co-conspirator made before the formation of the
conspiracy or after the accomplishment of its object are inadmissible in evidence as against the other
co-conspirators, on the ground that the accused in a criminal case has the constitutional right to be
confronted with the witnesses against him and to cross- examine them.[30

In the case at bar, the alleged conspiracy among the accused was not priorly established by independent
evidence. Nor was it shown that the extra-judicial statements of Basingan were made while they were
engaged in carrying out the conspiracy. In truth, the statements were made after the conspiracy has
ended and after the consummation of the crime. They were not acts or declarations made during the
conspiracys existence. Since the extra-judicial admissions were made after the supposed conspiracy,
they are binding only upon the confessant and are not admissible against his co-accused; as against the
latter, the confession is hearsay.[31 In fine, the extra-judicial statements of Basingan cannot be used
against the Cuis, Obeso and Sarte without doing violence against their constitutional right to confront
Basingan and to cross-examine him.[32

Be that as it may, we hold that on the basis of other evidence on record, the Cuis are guilty beyond
reasonable doubt of being accessories, not accomplices as held by the trial court, in the kidnapping of
Stephanie Lim.

Article 18 of the Revised Penal Code, as amended, penalizes as accomplices those persons who
cooperate in the execution of the offense by previous or simultaneous acts not indispensable to the
consummation of the offense. Accomplices cooperate in the execution of the crime by previous or
simultaneous acts, by means of which they aid, facilitate or protect the execution of the crime, without,
however, taking any direct part in such execution, or forcing or inducing others to execute it, or
contributing to its accomplishment by any indispensable act.[33 Had Basingan been able to testify on his
affidavit detailing the role of the Cuis in the planning of the robbery of the Lim household, the trial court
would have had sufficient basis to convict them as accomplices therein. As discussed above, however,
Basingan escaped before taking the witness stand.

This Court, however, holds that the Cuis profited from the kidnapping of Stephanie Lim and are liable as
accessories.

Article 19 of the Revised Penal Code, as amended, penalizes as accessories to the crime those who,
subsequent to its commission, take part therein by profiting themselves or assisting the offenders to
profit by the effects of the crime, without having participated therein, either as principals or accomplices.
Conviction of an accused as an accessory requires the following elements: (1) that he has knowledge of
the commission of the crime; and (2) that he took part in it subsequent to its commission by any of the
three modes enumerated in Article 19 of the Revised Penal Code, as amended.[34 These twin elements
are present in the case of the Cuis, and indubitable proof thereof is extant in the records of the case.

The members of the Metrodiscom Intelligence Security Team (MIST), namely, Lt. John P. Campos, Lt.
Michael Ray B. Aquino, Sgt. Narciso L. Ouano, Jr., Sgt. Felipe Honoridez, Sgt. Armando Ballon, Sgt. Oscar
Dadula, Cpl. Jeremias Canares, and Sgt. Catalino Ybanez, executed a Joint Affidavit dated December 18,
1990 stating, among other things, that the couple Leonilo and Beverly Cui, although denying knowledge
of the kidnapping revealed that Toto Garcia is their Compadre and that they also turned over to us the
amount of P10,000.00 representing that given to them by Toto Garcia out of the ransom money".[35

This statement charging the Cuis with having partaken of the ransom money was not denied either in
the Counter-Affidavit of Leonilo Cui dated February 15, 1991 or in the Counter-Affidavit of Beverly Cui of
the same date. In his Counter-Affidavit, Leonilo Cui even admitted that he knew that Toto Garcia and

734
Basingan had held secret meetings in his house and that he had already become suspicious of their acts,
but he did not confront them because they treated each other as special friends, they being godfather of
each others children.

In their defense, the Cuis submitted an Affidavit dated February 15, 1991 executed by Myrna M.
Limbagan, a niece of Beverly Cui who lived with them in their house in Pardo, Cebu City. But instead of
exonerating the Cuis, this Affidavit inculpates them as it states in paragraph 10 that on December 7,
1990, Toto Garcia, Eduardo Basingan and other persons visited the residence of the Spouse[s] Cui[s] and
handed some amounts of money to the couple.[36 Significantly, it is Limbagan, a witness for the defense,
who corroborates the incriminating statements made by the members of the Metrodiscom Intelligence
Security Team in their Joint Affidavit.

Realizing the aggravation caused them by the affidavits of Limbagan and the members of the
Metrodiscom Intelligence Security Team, the Cuis jointly executed a Supplement Counter-
Affidavit[37 dated April 24, 1991 this time denying that they profited in any way from the kidnapping of
Stephanie Lim. They explained that they turned over the sum of P10,000.00 to Lt. Michael Ray Aquino
not as their share in the ransom money but as a bribe to prevent the members of the Metrodiscom
Intelligence Security Team from further inflicting physical harm on the person of Leonilo Cui. In her
testimony in open court, Beverly Cui claimed that she and her husband were arrested on December 14,
1990 at their residence in Pardo, Cebu City but that she was later released by the members of the
Metrodiscom Intelligence Security Team so that she could withdraw money from the bank to pay to
them in exchange for her husbands freedom.

Two of the members of the Metrodiscom Intelligence Security Team, Sgt. Narciso Ouano and Sgt.
Catalino Ybanez, testified rebutting the claim of Beverly Cui. Sgt. Ouano testified as follows:

FISCAL ADLAWAN:

xxx

Q How about this P10,000.00 which according to you was recovered from the accused Cui couple?

xxx

Q How did you come into possession which according to you came from the Cui couple?

A The P10,000.00 was turned over to us by Beverly Cui.

Q Did Beverly Cui say anything when this P10,000.00 was handed to you?

A She told us that the P10,000.00 represents the money given to her and her husband by Toto Garcia.

Q And did you inquire from Beverly Cui why did Toto Garcia gave [sic] them P10,000.00?

A They told us that Toto Garcia gave it to them sometime on December 7 and that was the share from
the loot in the kidnapping.

COURT:

Q Was it given to them?

A The couple told us it was given by Toto Garcia as their share of the ransom money as a result of the
kidnapping of Stephanie Lim.

xxx

FISCAL ADLAWAN:

735
Q Was Beverly Cui already under arrest when she gave you this information?

A No, Sir. It was her husband who was held then. She was free.38

For his part, Sgt. Catalino B. Ybanez testified in the following manner:

COURT: Are you familiar with the P10,000.00?

A - Yes, sir.

COURT: You mean the money given?

A - The money was turned over by Beverly Cui to Lt. Aquino, sir.

COURT: In your presence?

A - Yes, sir.

COURT: What did she tell Lt. Aquino?

A - She told Lt. Aquino that the money was for the ransom money which was given to him by Toto Garcia.

COURT: Now, what was the remark of Lt. Aquino?

A - He accepted the money, sir. He accepted the money and he told the couple if he could execute an
affidavit regarding their participation in the involvement of the kidnapping.

COURT: What was the answer?

A - Actually, the couple denied the involvement, sir, but he was given the money.

COURT: What was the answer of Beverly Cui to Lt. Aquino when it was mentioned that the P10,000.00
was a part of the stolen money? The answer of Beverly Cui to Lt. Aquino, what else did Beverly Cui say,
did he tell Lt. Aquino?

A - The money was given to her.

Q - Was he made to execute an affidavit?

A - Actually he denied the involvement.

COURT: But as you said, now, why did Lt. Aquino ask Beverly Cui to execute an affidavit that the
P10,000.00 was a part of the ransom money?

A - Lt. Aquino told the couple go execute an affidavit.

COURT: What was the answer of Beverly Cui?

A - They denied the[ir] involvement.

xxx

COURT: What is the remark of Beverly Cui?

A - According to Beverly Cui and Leonilo B. Cui, that they were not involved in the kidnapping, sir.

xxx

736
FISCAL ADLAWAN:

xxx

Q - Now, Beverly Cui and Leonilo Cui testified in court that Beverly Cui was released on the same
evening that she was arrested by your team, what do you say to this?

COURT: Was she released?

A - She was released, your Honor.

COURT: Beverly Cui?

A - On assurance that she will help in looking [for] the group of Toto Garcia, your Honor.

Q - What was the result, or was she able to locate the group?

A - She pointed to us to the house of the wife of Toto Garcia, but during the raid, unfortunately, Toto
Garcia was not in their house.

Q - Who guided you to the house of Toto Garcia?

A - Beverly Cui, sir.

Q - Where is this house located?

A - Basak, sir.

Q - Was this the same house where those articles were raided and confiscated or recovered including
the firearm owned by the complaining witness Johnny Lim already marked as Exhbit A, a .22 caliber for
the prosecution, is this the house?

A - Yes, sir.

Q - Had it not been for Beverly Cui, you would not be able to locate the house of Toto Garcia?

A - No, sir.

Q - Now, did Beverly Cui show to you any bank book?

A - Yes, sir.

Q - How many bank books were shown?

A - At first about 5 bank books, sir.

xxx

COURT: You stated that this P10,000.00 received by Cui was a part of the ransom money lifted only from
the admission of the Cuis or the Cuis plus other parties?

A - By the Cuis, sir.

COURT: No proof that the Cuis are beneficiaries of Lt. Aquino?

A - Only the couple, your Honor.

737
COURT: In other words, you learned the P10,000.00 only when the money was returned by Beverly Cui?

A - During the confrontation the couple admitted that they have that other passbook, the P10,000.00,
sir.

COURT: Im referring of (sic) the admission that the P10,000.00 was a part of the ransom money?

A - Yes, sir.

COURT: When did you learn that it was a ransom-money? At the time the money was returned or before
the return?

A - At the time when there was a confrontation, sir.

COURT: What do you mean by confrontation?

A - When we confronted the accused, sir.

COURT: The Cuis?

A - Yes, and she admitted she has with her in the bank, the P10,000.00.

xxx

COURT: You mean an interrogation not a confrontation by you?

A - Not by me, but by the investigator, sir.

COURT: Who was doing the interrogation?

A - Ouano, sir.

COURT: You mean Ouano interrogating the Cuis? Then you were listening?

A - Yes, sir.

COURT: You heard the Cuis that they were given money by Toto Garcia and the money is in the bank.

A - Yes, sir.39

Significantly, it is again the Cuis themselves, in their Motion for Reconsideration dated December 2,
1993, who corroborated Sgt. Ybanezs claim that Beverly Cui was temporarily released for the particular
purpose of accompanying the police to the hideout of Toto Garcia and his men. Thus, in par. 5 of their
Motion for Reconsideration, they allege that x x x Beverly Cui was temporarily released from custody in
order for her to lead the police to the hideouts of the other suspects of the crime.[40

As accessories to the consummated crime of kidnapping for ransom, the penalty imposable upon
Leonilo and Beverly Cui is two degrees lower than that prescribed by law.[41 Under Article 267 of the
Revised Penal Code, as amended, the penalty shall be death where the kidnapping was committed for
the purpose of extorting ransom. However, when the crime was perpetrated in December 1990, the
death penalty has been suspended by the 1987 Constitution and commuted to reclusion perpetua. Since
no modifying circumstance is appreciated for or against the Cuis, the imposable penalty should be in the
medium period of the indeterminate sentence applicable under Republic Act no. 4103, as amended.[42

Finally, while we affirm the conviction of the Cui spouses, we acquit Obeso and Sarte.

The only evidence linking Obeso and Sarte to the kidnapping of Stephanie Lim is Basingans sworn
statements that a certain Leos and a certain Laring were among the lookouts who stood as guards

738
outside the house of the Lims while Toto Garcia and his group were inside. Basingans sworn statements
are hearsay, hence, inadmissible in evidence against his co-accused because he escaped before he could
take the witness stand.

Except for Basingan who could not even give the real names of Obeso and Sarte and just referred to
them as Leos and Laring, respectively, no one really knew them. And significantly, no prosecution
witness identified them, not even Stephanie Lim. She never saw any of them during the robbery or in
the house where she was detained. Her testimony runs, viz.:

DIRECT EX. BY FISCAL ADLAWAN

xxx

Q - What else took place?

A - They blindfolded me and handcuffed me and brought me out, sir.

Q - What do you mean when you said you were brought out, out of your residence?

A - That is correct, sir. They brought me to another place.

Q - By what means?

A - Our Fiera, sir.

Q - You owned the vehicle?

A - Yes, sir.

Q - While you were brought to (sic) outside, were you able to recognize one of them?

A - No, sir, because I was blindfolded.

Q - Was there an instance when your blindfold was taken off?

A - When I was placed in a room.

xxx

Q - And how long did you stay in that house where you were brought by those persons known as Toto
Garcia and others?

A - From dawn until afternoon.

xxx

COURT: What happened when you were brought back to your house?

A - Few days after I was asked to identify the house and the room where I stayed.

Q - You were brought to that place [a] few days after?

A - Yes, sir.

Q - Who were with you when you were brought to that place?

A - Members of the Metro Discom, sir.

739
Q - When you were brought to the place again [a] few days after you were released, did you come to
know who occupied that room?

ATTY. GONZALES: Hearsay, your Honor, she has no personal knowledge, whatever information given to
her thats not of her own, your Honor.

COURT: Let us find out, if she knows.

A - Laring, sir.

xxx

COURT: Cross?

CROSS BY ATTY. GONZALES

xxx

Q - And you mentioned of a certain Laring, you agree with me that this Laring was identified to you by
people of the Metro Discom?

A - Yes, sir.

Q - And the people at the Metro Discom meaning the police officers, told you that it was Laring who
occupied the place where you were allegedly brought, right?

A - Yes, sir.

COURT: I can not hear.

WITNESS: Yes, sir, occupied by Laring.

Q - You have not seen Laring?

A - Yes, sir.

Q - You have not seen Laring, you mean no?

A - Yes, sir.

xxx

Q - Now, you mention, no. Now, in your house where this incident allegedly took place, you only saw
Toto Garcia?

A - Yes, sir.

Q - You could not identify anybody there?

A - No, sir.

x x x.43

Obeso and Sarte interposed the defense of alibi. They asseverated that in late November, 1990, they left
the house they were renting in Linao, Minglanilla, Cebu and went to Banilad, Bacong, Dumaguete City
where the parents of Sarte reside. It was there, in March 1991, that they were arrested.

740
The prosecution never rebutted the claim of live-in partners Obeso and Sarte that they were in Bacong,
Dumaguete City as early as November, 1990. No direct evidence has been proffered by the prosecution
to place Obeso and Sarte at the scene of the crime. Their alibi has to be given credence.

WHEREFORE, the Decision of the Regional Trial Court of Cebu City, Branch 18, dated December 6, 1993,
in Criminal Case No. CBU-20464, is MODIFIED. Appellants Leonilo and Beverly Cui are CONVICTED as
ACCESSORIES and are ORDERED to serve the indeterminate sentence of two (2) years, four (4) months
and one day of prision correccional, as minimum, to eight (8) years and one day of prision mayor, as
maximum. Appellants LUIS OBESO, alias LEOS, and HILARIA SARTE, alias LARING are ACQUITTED and if
presently detained, they are ordered immediately released from detention unless other legal reasons
exists to detain them. The Director of Prisons is ordered to inform this Court within ten (10) days from
receipt of this Decision his compliance. No costs.

SO ORDERED.

Kapunan, Pardo, and Ynares-Santiago, JJ., concur.

Davide, Jr., C.J., (Chairman), on official leave.

Endnotes:

G.R. No. 144621 May 9, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
ISAGANI GUITTAP y PENGSON (Acquitted), WILFREDO MORELOS y CRUZ (Acquitted), CESAR OSABEL @
DANILO MURILLO @ DANNY @ SONNY VISAYA @ BENJIE CANETE, ARIEL DADOR y DE CHAVEZ
(Discharge), DECENA MASINAG VDA. DE RAMOS, LUISITO GUILLING @ LUISITO (Acquitted), and JOHN
DOE @ PURCINO, accused.
DECENA MASINAG VDA. DE RAMOS, appellant.

YNARES-SANTIAGO, J.:

Appellant Decena Masinag Vda. de Ramos assails the decision1 of the Regional Trial Court of Lucena City,
Branch 60, in Criminal Case No. 92-387, finding her and accused Cesar Osabel guilty beyond reasonable
doubt of the crime of Robbery with Homicide and sentencing each of them to suffer the penalty of
reclusion perpetua, with all the accessory penalties provided by law, and to indemnify the heirs of the
victims the amounts of P100,000.00 as civil indemnity and P67,800.00 as actual damages.

On September 1, 1992, an Amended Information for Robbery with Double Homicide was filed against
appellant Masinag, Isagani Guittap y Pengson, Wilfredo Morelos y Cruz, Cesar Osabel,2 Ariel Dador y De
Chavez, Luisito Guilling and John Doe @ "Purcino". The accusatory portion of the information reads:

That on or about the 17th day of July 1992, in the City of Lucena, Province of Quezon,
Philippines, and within the jurisdiction of this Honorable Court, the said accused, conspiring and
confederating with one another, armed with bladed weapons, by means of violence, and with
intent to gain, did then and there willfully, unlawfully and feloniously take, steal and carry away
certain personal items, to wit:

one (1) solid gold ring valued at P8,000.00

one (1) diamond ring valued at P40,000.00
one (1) necklace with pendant valued at P2,000.00
cash money in the amount of P4,500.00
one (1) samsonite bag valued at P650.00
one (1) .22 Cal. Squibbman with SN 64130 valued at
P5,000.00

741
 one (1) pair of sandal valued at P650.00
one (1) music mate (karaoke) valued at P5,000.00
one (1) jacket (adidas) valued at P1,000.00; and
one (1) pair of shoes valued at P1,000.00

with a total value of P67,800.00, owned by and belonging to spouses Romualdo Jael and
Lionela3 Caringal, without the consent and against the will of the latter, to the damage and
prejudice of the aforementioned offended parties in the aforestated sum of P67,800.00,
Philippine Currency, and, on the same occasion of such robbery, the said accused, conspiring
and confederating with one another, armed with the same bladed weapons, taking advantage of
superior strength, and employing means to weaken the defense or of means or persons to
insure or afford impunity, and with intent to kill, did then and there willfully, unlawfully and
feloniously stab both of said spouses Romualdo Jael and Lionela Caringal thereby inflicting upon
the latter several fatal wounds which directly caused the death of the aforenamed spouses.

Contrary to law.4

Upon arraignment, appellant Masinag pleaded "not guilty." Trial on the merits thereafter ensued.
Accused Ariel Dador was discharged as a state witness while accused Purcino remained at large.

On February 15, 2000, the trial court rendered its decision, the dispositive portion of which states:

WHEREFORE, premises considered, this court finds Cesar Osabel and Decena Masinag GUILTY
beyond reasonable doubt of the crime of robbery with homicide and they are sentenced
to RECLUSION PERPETUA with all the accessory penalties provided by law. For insufficiency of
evidence, the accused Isagani Guittap, Wilfrido Morelos and Luisito Guilling are hereby
ACQUITTED.

The accused Cesar Osabel and Decena Masinag are also ordered to indemnify the heirs of the
deceased Romualdo Jael and Leonila Caringal Jael in the amount of (P100,000.00) One Hundred
Thousand Pesos plus actual damages of (P67,800.00) Sixty Thousand and Eight Hundred Pesos,
Philippine Currency.

SO ORDERED.5

During the trial, state witness Ariel Dador testified that in the evening of July 15, 1992, Cesar Osabel
asked him and a certain Purcino to go with him to see appellant Masinag at her house in Isabang, Lucena
City. When they got there, Osabel and Masinag entered a room while Dador and Purcino waited outside
the house. On their way home, Osabel explained to Dador and Purcino that he and Masinag planned to
rob the spouses Romualdo and Leonila Jael. He further told them that according to Masinag, the
spouses were old and rich, and they were easy to rob because only their daughter lived with them in
their house.

The following day, at 7:00 p.m., Dador, Osabel, and Purcino went to the house of the Jael spouses to
execute the plan. Osabel and Purcino went inside while Dador stayed outside and positioned himself
approximately 30 meters away from the house. Moments later, he heard a woman shouting for help
from inside the house. After two hours, Osabel and Purcino came out, carrying with them one karaoke
machine and one rifle. Osabel's hands were bloodied. He explained that he had to tie both the victims'
hands with the power cord of a television set before he repeatedly stabbed them, He killed the spouses
so they can not report the robbery to the authorities.

Osabel ordered Dador to hire a tricycle while he and Purcino waited inside the garage of a bus line.
However, when Dador returned with the tricycle, the two were no longer there. He proceeded to the
house of Osabel and found him there with Purcino. They were counting the money they got from the
victims. They gave him P300.00. Later, when Dador accompanied the two to Sta. Cruz, Manila to dispose
of the karaoke machine, he received another P500.00. Osabel had the rifle repaired in Gulang-Gulang,
Lucena City.

742
Dador and Osabel were subsequently arrested for the killing of a certain Cesar M. Sante. During the
investigation, Dador executed an extrajudicial confession admitting complicity in the robbery and killing
of the Jael spouses and implicating appellant and Osabel in said crime. The confession was given with
the assistance of Atty. Rey Oliver Alejandrino, a former Regional Director of the Human Rights
Commission Office. Thereafter, Osabel likewise executed an extrajudicial confession of his and
appellant's involvement in the robbery and killing of the Jaels, also with the assistance of Atty.
Alejandrino.

Simeon Tabor, a neighbor of the Jaels, testified that at 8:00 in the morning of July 17, 1992, he noticed
that the victims, who were known to be early risers, had not come out of their house. He started calling
them but there was no response. He instructed his son to fetch the victims' son, SPO1 Lamberto Jael.
When the latter arrived, they all went inside the house and found bloodstains on the floor leading to the
bathroom. Tabor opened the bathroom door and found the lifeless bodies of the victims.

Dr. Vicente F. Martinez performed the post-mortem examination on the bodies of the victims and
testified that since rigor mortis had set in at the back of the neck of the victims, Romualdo Jael died
between six to eight hours before the examination while Leonila Jael died before midnight of July 16,
1992. The cause of death of the victims was massive shock secondary to massive hemorrhage and
multiple stab wounds.

Appellant Masinag, for her part, denied involvement in the robbery and homicide. She testified that she
knew the victims because their houses were about a kilometer apart. She and Osabel were friends
because he courted her, but they never had a romantic relationship. She further claimed that the last
time she saw Osabel was six months prior to the incident. She did not know Dador and Guilling at the
time of the incident. According to her, it is not true that she harbored resentment against the victims
because they berated her son for stealing their daughter's handbag. On the whole, she denied any
participation in a conspiracy to rob and kill the victims.

From the decision convicting appellant Masinag and Osabel, only the former appealed, based on the
lone assigned error:

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN FINDING ACCUSED-APPELLANT GUILTY BEYOND
REASONABLE DOUBT OF CONSPIRING WITH HER CO-ACCUSED TO COMMIT THE CRIME OF ROBBERY
WITH HOMICIDE DESPITE THE ABSENCE OF HER ACTUAL PARTICIPATION IN THE COMMISSION OF THE
SAID CRIME.

The appeal is meritorious.

While it is our policy to accord proper deference to the factual findings of the trial court, 6 owing to their
unique opportunity to observe the witnesses firsthand and note their demeanor, conduct, and attitude
under grueling examination,7 where there exist facts or circumstances of weight and influence which
have been ignored or misconstrued, or where the trial court acted arbitrarily in its appreciation of
facts,8 we may disregard its findings.

Appellant contends that the extrajudicial confessions of Osabel and Dador were insufficient to establish
with moral certainty her participation in the conspiracy. Firstly, Dador was not present to hear appellant
instigate the group to rob the Jael spouses. He only came to know about the plan when Osabel told him
on their way home. Thus, Dador had no personal knowledge of how the plan to rob was actually made
and of appellant's participation thereof. Secondly, while Osabel initially implicated her in his
extrajudicial confession as one of the conspirators, he repudiated this later in open court when he
testified that he was forced to execute his statements by means of violence.

On direct examination, Dador narrated what transpired in the house of appellant on July 15, 1992, to
wit:

PROSECUTOR GARCIA:

743
 Q. And do you remember the subject or subjects of that conversation that transpired
among you?

A. Yes, sir.

Q. Please tell us what was the subject or subjects of the conversation that transpired among
you on July 15, 1992 at the house of Decena Masinag?

A. The subject of our conversation there was the robbing of Sps. Jael, sir.

Q. How did that conversation begin with respect to the proposed robbery of Sps. Jael?

A. It was only the two (2) who planned that supposed robbery, Daniel Murillo and Decena
Masinag, sir.

Q. And why were you able to say that it was Danilo Murillo and Decena Masinag who
planned the robbery?

A. Because they were the only ones who were inside the house and far from us and they
were inside the room, sir.

xxx xxx xxx

Q. On that night, July 15, 1992 did you ever have any occasion to talk with Decena
Masinag together with your companions Danilo Murillo and Purcino?

A. No, sir.

Q. Was there any occasion on the same date that Decena Masinag talk to you?

ATTY. FLORES:

Already answered, your Honor.

COURT:

Witness, may answer.

WITNESS:

None, sir. (emphasis ours)9

We find that the foregoing testimony of Dador was not based on his own personal knowledge but from
what Osabel told him. He admitted that he was never near appellant and that he did not talk to her
about the plan when they were at her house on July 15, 1992. Thus, his statements are hearsay and
does not prove appellant's participation in the conspiracy.

Under Rule 130, Section 36 of the Rules of Court, a witness can testify only to those facts which he
knows of his own personal knowledge, i.e., which are derived from his own perception; otherwise, such
testimony would be hearsay. Hearsay evidence is defined as "evidence not of what the witness knows
himself but of what he has heard from others."10 The hearsay rule bars the testimony of a witness who
merely recites what someone else has told him, whether orally or in writing.11 In Sanvicente v.
People,"12 we held that when evidence is based on what was supposedly told the witness, the same is
without any evidentiary weight for being patently hearsay. Familiar and fundamental is the rule that
hearsay testimony is inadmissible as evidence.13

Osabel's extrajudicial confession is likewise inadmissible against appellant. The res inter allos acta rule
provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of

744
another.14 Consequently, an extrajudicial confession is binding only upon the confessant and is not
admissible against his co-accused. The reason for the rule is that, on a principle of good faith and mutual
convenience, a man's own acts are binding upon himself, and are evidence against him. So are his
conduct and declarations. Yet it would not only be rightly inconvenient, but also manifestly unjust, that
a man should be bound by the acts of mere unauthorized strangers; and if a party ought not to be
bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.15

The rule on admissions made by a conspirator, while an exception to the foregoing, does not apply in
this case. In order for such admission to be admissible against a co-accused, Section 30, Rule 130 of the
Rules of Court requires that there must be independent evidence aside from the extrajudicial confession
to prove conspiracy. In the case at bar, apart from Osabel's extrajudicial confession, no other evidence
of appellant's alleged participation in the conspiracy was presented by the prosecution. There being no
independent evidence to prove it, her culpability was not sufficiently established.

Unavailing also is rule that an extrajudicial confession may be admissible when it is used as a
corroborative evidence of other facts that tend to establish the guilt of his co-accused. The implication
of this rule is that there must be a finding of other circumstantial evidence which, when taken together
with the confession, establishes the guilt of a co-accused beyond reasonable doubt.16 As earlier stated,
there is no other prosecution evidence, direct or circumstantial, which the extrajudicial confession may
corroborate.

In People v. Berroya,17 we held that to hold an accused liable as co-principal by reason of conspiracy, he
must be shown to have performed an overt act in pursuance or furtherance of the conspiracy. That
overt act may consist of active participation in the actual commission of the crime itself, or it may
consist of moral assistance to his co-conspirators by being present at the time of the commission of the
crime, or by exerting moral ascendancy over the other co-conspirators by moving them to execute or
implement the conspiracy.

In the case at bar, no overt act was established to prove that appellant shared with and concurred in the
criminal design of Osabel, Dador and Purcino. Assuming that she had knowledge of the conspiracy or she
acquiesced in or agreed to it, still, absent any active participation in the commission of the crime in
furtherance of the conspiracy, mere knowledge, acquiescence in or agreement to cooperate is not
sufficient to constitute one as a party to a conspiracy.18 Conspiracy transcends mere companionship.19

Conspiracy must be proved as convincingly as the criminal act itself. Like any element of the offense
charged, conspiracy must be established by proof beyond reasonable doubt.20 Direct proof of a previous
agreement need not be established, for conspiracy may be deduced from the acts of appellant pointing
to a joint purpose, concerted action and community of interest. Nevertheless, except in the case of the
mastermind of a crime, it must also be shown that appellant performed an overt act in furtherance of
the conspiracy.21

All told, the prosecution failed to establish the guilt of appellant with moral certainty. Its evidence falls
short of the quantum of proof required for conviction. Accordingly, the constitutional presumption of
appellant's innocence must be upheld and she must be acquitted.

WHEREFORE, in view of the foregoing, the appealed decision of the Regional Trial Court of Lucena City,
Branch 60 in Criminal Case No. 92-487, insofar only as it finds appellant guilty beyond reasonable doubt
of the crime of Robbery with Homicide, is REVERSED and SET ASIDE. Appellant Decena Masinag Vda. De
Ramos is ACQUITTED of the crime of Robbery with Homicide. She is ORDERED RELEASED unless there
are other lawful causes for her continued detention. The Director of Prisons is DIRECTED to inform this
Court, within five (5) days from notice, of the date and time when appellant is released pursuant to this
Decision.

SO ORDERED.

Davide, Jr., C .J ., Vitug, Carpio and Azcuna, JJ ., concur.

745
[G.R. No. 71980. March 18, 1991.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. LEONARDO FLORES, ALEX KING CRUZ, SERVILLANO
PARIÑAS and ERNESTO SARSOZA, Defendants-Appellants.

The Solicitor General for Plaintiff-Appellee.

Francisco E. Antonio, for Defendants-Appellants.

SYLLABUS

1. REMEDIAL LAW; CRIMINAL PROCEDURE; A CULPRIT WHO CONFESSES TO A CRIME IS LIKELY TO PUT
THE BLAME ON OTHERS. — As is usual with human nature, a culprit who confesses to a crime is likely to
put the blame as far as possible on others rather than on himself.

2. ID.; EVIDENCE; CONFESSIONS ARE ADMISSIONS AGAINST INTEREST. — Confessions, both extrajudicial
and judicial, cannot be taken lightly as they are usually not self-serving declarations but admissions
against interest.

3. ID.; ID.; CONFESSION; DISTINCTION BETWEEN JUDICIAL AND EXTRAJUDICIAL CONFESSIONS. — A

distinction, should be made between extrajudicial and judicial confessions. The former deprives the
other accused of the opportunity to cross-examine the confessant while in the latter, his confession is
thrown wide open for cross-examination and rebuttal.

4. ID.; ID.; ID.; EXTRAJUDICIAL CONFESSION EXECUTED WITHOUT ASSISTANCE OF COUNSEL,

INADMISSIBLE. — The extrajudicial confession of Flores is inadmissible because he was not assisted by
counsel.

5. ID.; ID.; CREDIBILITY; POSITIVE AND CREDIBLE TESTIMONIAL CONFESSION, SUFFICES TO SUPPORT
CONVICTION. — We hold that inspite of minor inaccuracies like the number of persons who participated
in the drinking party prior to the commission of the crime, Flores’ testimonial confession, although
uncorroborated, suffices to support the conviction of the herein appellants because it is positive and
credible. The matter of his credibility, which is basically addressed to the sound discretion of the lower
court, has been settled by its observation that Flores was "frank, candid and straightforward" on the
witness stand. The court noted, on the other hand, that the appellants herein were "nervous, quivering
and hesitant."cralaw virtua1aw library

6. CRIMINAL LAW; CONSPIRACY; RULE THAT THE STATEMENT OF A CONSPIRATOR RELATING TO THE
CONSPIRACY IS INADMISSIBLE IN EVIDENCE AGAINST HIS CO-CONSPIRATOR, NOT APPLICABLE TO
JUDICIAL CONFESSIONS WHERE THE DEFENDANT HAVE THE OPPORTUNITY TO CROSS-EXAMINE THE
DECLARANT. — Conspiracy, which was established through the judicial confession of Flores, has been
proven beyond reasonable doubt. It should be remembered that the rule that the statement of a
conspirator relating to the conspiracy is not admissible in evidence unless the conspiracy is first shown
by other independent evidence, applies only to an admission in an extrajudicial confession or
declaration. It does not apply to a testimony given directly in court where the defendants have the
opportunity to cross-examine the declarant. Provided it is sincere in itself, given unhesitatingly and in a
straightforward manner, and full of details which by their nature could not have been the result of
deliberate afterthought, the testimony of a co-conspirator, even if uncorroborated, is sufficient.

7. ID.; ID.; MANIFEST BY THE CONCERTED ACTS OF ALL THE ACCUSED; CASE AT BAR. — The manner by
which the appellants acted in concert pursuant to the same objective indicates a conspiracy among
them. They performed specific acts in the commission of the crime with such closeness and coordination
that would indicate a common purpose and design. Thus, while Flores grabbed Mercedes by her neck,
two others held her limbs while another tore her garments with a bayonet. The same manner of
cooperation was demonstrated when they took turns in raping her.

746
8. REMEDIAL LAW; EVIDENCE; CREDIBILITY; ALIBI; UNAVAILING WHERE THERE WAS PHYSICAL
POSSIBILITY FOR THE ACCUSED TO BE AT THE SCENE. — The defense of alibi cannot save the appellants
from conviction. They have not established by clear and convincing evidence that they were at some
other place and for such a period of time as to negate their presence at the time when and the place
where the crimes were committed. It was not physically impossible for them to have gone to the
Samiley irrigation area at the time of the commission of the crime because it was a mere 500 meters
away from the house of Ernesto Uy where they were allegedly watching a television show. The house of
Maximo Sarsoza where they watched an earlier television show was only 25 meters from Ernesto Uy’s
house. It therefore does not defy one’s imagination to believe that the appellants were at the scene of
the crimes when they occurred. As to the matter of time, the lower court aptly observed that as
furnished by the appellants, time was based on calculations and hence, unreliable.

9. ID.; ID.; ID.; ID.; MAY NOT BE ESTABLISHED MAINLY BY THE ACCUSED AND THEIR RELATIVES. — The
defense of alibi may not prosper if it is established mainly by the accused themselves and their relatives
and not by credible persons.

10. CRIMINAL LAW; THEFT; COMMITTED WHERE THE TAKING WAS MERELY AN AFTERTHOUGHT OF THE
ACCUSED AFTER THEIR COMMISSION OF RAPE AGAINST THE VICTIM. — The evidence presented and
proved at the trial point to the fact that although robbery was also charged against the accused, the
manner by which the crimes were committed shows that the appellants were primordially impelled by
an intent to commit a crime against chastity rather than against property. Hence, the accused did not
take any interest on Mercedes’ belongings notwithstanding her pleas for the appellants to take them in
exchange for her life. They persisted in satisfying their lust and even helped each other in their bestial
acts. If not for the accidental touching of Mercedes’ ring, the accused’s intent to rob would have been
totally forgotten as the culprits had dumped her body to hide their crime from immediate discovery.
Indeed, the taking of Mercedes’ ring, watch and money turned out to be afterthought. The force
employed on her having no bearing on such illegal taking, the crime committed is the separate one of
theft.

DECISION

FERNAN, C.J.:

Quietly traversing the barrio road on her way home, unaware of the danger that lurked in the night, the
victim, a registered nurse, did not have the slightest idea that she would fall into the abyss of death on
that fateful night of September 21, 1984. She was mercilessly raped and killed by four men.

The morning after, her naked body with a branch of ipil-ipil inserted into her private part, was found
lying prostrate with several hack and stab wounds. She was identified as Mercedes M. Dulay.

Having received a report on the killing, the police at Manaoag, Pangasinan immediately went to the
irrigation canal where the body of Mercedes was found. A few hours later, Leonardo Flores was
apprehended. He was taken to the Manaoag police station where he was investigated. He revealed his
companions in the commission of the crime as Ernesto Sarsoza alias Ramon, Alex King Cruz alias Boy and
Servillano Pariñas alias Anong. The four were later charged with rape with homicide and robbery in the
Regional Trial Court at Lingayen, Pangasinan in an information which reads:jgc:chanrobles.com.ph

"That on or about September 21, 1984, in the evening, in barangay Inamotan, municipality of Manaoag,
province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused conspiring, confederating, mutually helping one another, with abuse of superior
strength and taking advantage of nighttime, did then and there, wilfully, unlawfully, feloniously and with
lewd designs, forcibly took turns in having sexual intercourse with Mercedes Dulay against her will, after
which, and by reason of such rape accused with intent to kill, did then and there, wilfully, unlawfully and
feloniously strike and stab Mercedes Dulay on different parts of her body inflicting mortal wounds which
caused her death and, thereafter, Accused got a piece of ipil-ipil wood about 1 1/4 centimeter in

747
diameter and inserted it in her vaginal canal, and on the occasion thereof accused with intent to gain,
did then and there wilfully, unlawfully and feloniously take and carry away a gold graduation ring valued
at One Thousand (P1,000.00) Pesos, lady Seiko wrist watch valued at Eight Hundred (P800.00) Pesos and
cash money amounting to One Hundred (100.00) Pesos all belonging to said Mercedes Dulay, to the
damage and prejudice of her heirs.

"That the commission of this offense was attended by the aggravating circumstances of evident
premeditation, use of superior strength, nighttime which was purposely sought by the accused to
facilitate and insure its commission and circumstances brought about which added ignominy to the
natural effects of the crime.

"Contrary to Article 335 of the Revised Penal Code as amended by Rep. Act No. 2632 & Rep Act No.
4111." 1

At the arraignment, Alex King Cruz, Servillano Pariñas and Ernesto Sarsoza, assisted by counsel, pleaded
not guilty to the charge. Leonardo Flores initially pleaded guilty but the court prudently deemed it wise
to defer action on his plea to give him time to engage the services of a counsel of his choice. The court
forthwith recorded a plea of not guilty for Leonardo Flores. 2

On December 19, 1984, Leonardo Flores was rearraigned. He reiterated his plea of guilty. Hence, the
court admonished him once more of the meaning, extent and effect of his plea. Since Flores insisted on
entering a plea of guilty, the court ordered the withdrawal of his recorded plea of not guilty and entered
that of guilty. The court, however, deferred its judgment until such time when the prosecution had fully
presented its evidence. 3 Before the presentation of such evidence, Flores volunteered to testify for the
government "to tell all the truth about the case." 4 According to Flores the following
transpired:chanrob1es virtual 1aw library

At about 6:00 o’clock in the evening of September 21, 1984, Flores was in the house of a friend named
Jose Cacayan. He was with Cruz, Pariñas and Sarsoza. They drank one bottle of White Castle. They also
had five sticks of marijuana and each one smoked a stick. They passed around the fifth stick. 5

About an hour later, the group parted ways. Flores went home to take his supper. All four of them,
however, returned to the house of Jose Cacayan at around 7:30 p.m. 6 Cruz told them to proceed to the
east to wait for Mercedes "to get her money, kill her and rape her." The three of them agreed to Cruz’s
proposal and Sarsoza even said, "I am going to rape and kill her." 7

The group proceeded to the Samiley irrigation site which was around fifty meters from the house of
Cacayan. It took them five minutes to reach the place. Along the way, Flores heard the three remarked
that "something (was) already wrong" with their minds. 8

They waited for Mercedes for around thirty minutes in a forested area about five electric posts away
from the national road. 9 As proposed by the three, when Mercedes was some five meters from them,
Flores caught her by placing his left arm around her neck. Cruz pulled her dress by her neckline and
Pariñas stuck her head twice with a stone. Sarsoza held her by her legs. Then they forced her to lie down
on the barrio road. Mercedes cried, "Take everything you want (from) me but please do not kill me." 10

Cruz insisted that they should kill her. Out of pity, Flores asked them not to kill her but Pariñas retorted
that they better kill her so that she could not report the incident to the authorities. Sarsoza also believed
that they should kill her.

Mercedes was lying down when Cruz tore her dress from the neckline to the hemline with a one-foot
long bayonet and in the process also tore her bra and half-slip. Flores was holding her hands while the
two others were holding her legs when Cruz ripped apart her panty also with his bayonet. 11 Cruz then
lowered his pants and briefs to his knees, went on top of Mercedes, mashed her breast and nipples and
then "took her womanhood." Mercedes once more pleaded, "Please get everything from me but please
do not kill me." 12

While Cruz was on top of Mercedes, Flores was holding her hands, Pariñas her left leg and Sarzosa her

748
right leg. After about a minute, Pariñas took his turn in having sexual intercourse with Mercedes. Flores
still held her hands while Cruz took Pariñas place in holding her left leg. About a minute later, Sarzosa
took his turn in ravishing Mercedes while Pariñas grabbed and held her leg. Flores was the last to have
intercourse with Mercedes while Sarsoza held her hands and the two others her legs. 13

Thereafter, Sarsoza stabbed her breast with his own bayonet as Mercedes begged, "Have mercy on me.
Do not kill me." But Cruz slashed her neck nonetheless and she was forever silenced. 14

Flores and Sarzosa dumped her in a canal about a meter away from the road where they raped and
killed her so that nobody could see her right away while Cruz and Pariñas watched. Sarsoza took a
branch of a nearby ipil-ipil tree with his bolo, gave the 14-inch long branch to Flores and ordered him to
insert it into the vagina of Mercedes with a warning that should he fail to do so, he would kill Flores. 15

After accomplishing the dastardly act, Flores accidentally touched Mercedes’ college ring with "Baguio
General Hospital" engraved on it. He got the ring which also bore Mercedes’ name. From the canal,
Flores saw the shoulder bag of Mercedes, got it, took the money amounting to one hundred pesos and
threw away the bag in the nearby forested area. Cruz also took the wrist watch from Mercedes’ arm.
Thereafter, they went their separate ways — Flores proceeded to the east while the three went towards
the west. 16

At home, Flores went to bed and awoke around 6:00 o’clock the following morning. He took Mercedes’
ring and erased her engraved name on it. He went to the field to plant rice and stayed there until
noontime when he went home for lunch.

In the afternoon, he changed clothes to go to town to watch a movie. On the way, he met motorcycle-
riding policemen who invited him for investigation. Having learned that the investigation was about the
crimes committed against Mercedes, Flores fled. The policemen fired a warning shot but still Flores ran
thereby attracting the barrio people who also pursued him. When they saw him crawling on the ricefield,
the people stoned Flores hitting him on the left leg. As they mauled him, Flores revealed the identity of
his companions. 17 A police officer retrieved a blood-stained bayonet from Flores’ waist and Mercedes’
graduation ring from his pocket. 18

At the Manaoag police station, Flores executed a sworn statement. Asked if he needed the assistance of
counsel, Flores replied that with or without counsel, he wanted to give a statement voluntarily and
freely. He declared in the statement that they were drinking because it was his birthday, named Pariñas,
Cruz and Sarsoza as his companions, and related how they perpetrated the crime which they had been
planning for four days. 19

Meanwhile, pictures were taken of the body of Mercedes at the crime scene. 20 She was autopsied by
the rural health unit physician in Manaoag at 9:30 a.m. of September 22, 1984. The postmortem report
reveals that Mercedes, who was 29 years old when she died, sustained the following injuries:cralawnad

"Lacerated wound and hematoma, right posterior parietal region of the head — 1 cm. in length

Post auricular right side — 1 in. incised wound

Left side of the neck — zigzag, hacking wound, longest 4 in. shortest 3/4 in.

Anterior part of the neck, near the vocal chord — stab wound, 1 in. in width, depth 1 1/4 in.

Stab wound on the chest right side 2 inches above right nipple, 1 1/2 in width with 6 in depth

Lateral right part at the back posteriorly near the axila, 7 1/4 in. deep, with 11 1/2 in. stab wound

Right hand — incised wound between right thumb and index finger, 1 in posterior, anterior 1/4 in.

Hacking wound on index finger, right hand

749
Hacking wound between index and middle finger

Hacking wound on the center of middle finger

2 hacking wounds on the left right finger (center)

hacking wound on palm - near the root of left small finger, 1 1/2 in. in length."cralaw virtua1aw library

The examining physician also found, after an internal examination, that the "introitus" admitted 1 1/2
fingers easily, that there was about 3 cc. of clear fluid coming out of the vaginal opening and that there
were abrasions on the mucuosa of the vaginal canal. She also indicated in the postmortem report that a
piece of ipil-ipil wood, 1 1/4 inches in diameter was found inserted in the victim’s vaginal canal. She
attributed the cause of death to "massive hemorrhage due to multiple stab wounds and hacking
wounds." 21 The death certificate also shows that Mercedes died between 8:00 and 9:00 p.m. of
September 21, 1984. 22

Upon the request of Carmen Molintas Dulay, the victim’s mother, 23 the National Bureau of
Investigation, through Dr. Arturo G. Llavore, performed another autopsy on the victim on September 30,
1984. Dr. Llavore indicated in Autopsy Report No. NO-84-33-P that Mercedes died because of
"hemorrhage, severe, secondary to multiple stabbed and hacked wounds." He also arrived at the
conclusion that the genital findings on the victim were "compatible with sexual intercourse with man
and consistent with alleged date of commission." 24 He also presented in court photographs of the
victim taken during the autopsy.25cralaw:red

Carolyn Custodio, a supervising chemist at the NBI, testified that the tests for blood on the bayonet
yielded negative results but she found human blood belonging to group B on the panty. 26 She found no
spermatozoa and seminal stains on the ipil-ipil branch 27 but a comparative examination of the head
and pubic hair specimens taken from the crime scene revealed that there were not similar as they varied
in color, length, presence of medulla tips, diameter, medullary index and hair characteristics. 28
Custodio concluded that the hair samples belonged to several persons. 29

Emilio Dulay, the victim’s father, testified that Mercedes was a registered nurse who worked at the
Villaflor Clinic in Dagupan City. Her monthly earnings therein consisted of P1,000 as salary and P500 as
assistant’s fee. 30 She shared one-half of her earnings with the family. For her 13-day wake, the family
spent P400 for food. They also spent P10,000 for the coffin and funeral services 31 and a total of P300
for the traditional commemoration of the 9th and 40th day from her death. 32 While Mercedes was
lying in state, the family received a telegram dated September 24, 1984 addressed to her directing her
to report for a final interview for a job at the King Fahd Armed Forces Hospital at Jeddah, Saudi Arabia.
33

According to Emilio Dulay, in reporting for work, his daughter used to walk a kilometer from their home
to the irrigation site where she would take a tricycle to Urdaneta. From there, Mercedes would take a
bus for Dagupan City. She usually goes home between 6:00 and 8:00 o’clock in the evening. 34 He used
to send someone to fetch her at the irrigation site but on that fateful night Mercedes was alone. 35

Defendants Cruz, Sarsoza and Pariñas denied having anything to do with the crimes. They interposed
alibi as a defense and related in court that between 6:00 and 7:30 o’clock in the evening of September
21, 1984, the three of them, together with Flores, Jose Cacayan and five other persons were drinking
Tanduay Rhum near the irrigation canal opposite the house of Cacayan it being the birthday of Flores. 36
At around 7:15 p.m. their companions, Wilfredo Lacambra, Alfonso Cruz and Salvador Sarsoza left for
home. Fifteen minutes later, the rest of the group broke up — Flores went east heading for his residence
at barangay Lelemaan while Jose Cacayan, Bernabe Cacayan, Henry Sarsoza, Cruz, Sarsoza and Pariñas
went west. 37

Sarsoza went home to have supper. Immediately thereafter, he went to the house of his uncle Maximo
Sarsoza to watch the television program "Bagong Kampeon." He joined therein Cruz and Pariñas. When
the program was over, Sarsoza, Cruz and Pariñas transferred to the house of Ernesto Uy for another
television program, "Beast Master." They watched the program through a wide window of the Uy

750
residence together with Brigida Sabado and her son, Dante. Before the program was over, Sarsoza and
Dante Sabado left for home to sleep while Cruz, Pariñas and Brigida stayed to finish the show at around
10:30 p.m. Thereafter, they all went home. 38

In its 62-page decision of July 30, 1985, the lower court 39 held that Flores’ detailed recital of facts at
the trial together with his extrajudicial confession pointed to no other conclusion than that the four
accused "carried their plot to rape, kill and rob the victim in concert and pursuant to their previous
agreement." 40 It appreciated the aggravating circumstances of evident premeditation, treachery,
nighttime, uninhabited place, abuse of superior strength and ignominy. It noted "other wrongs
committed" which were not necessary for the commission of the crimes like the insertion of the ipil-ipil
branch on the victim’s vagina, the fact that the accused acted under the influence of dangerous drugs
and the asportation of Mercedes’ belongings after she had been raped and killed.chanrobles
virtualawlibrary chanrobles.com:chanrobles.com.ph

Taking into consideration however, the provision of Article 63 of the Revised Penal Code that "in all
cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless
of any mitigating circumstances that may have attended the commission of the deed;" the provision of
Article 335 of the same Code which imposes the death penalty when by reason or on the occasion of the
rape, a homicide is committed, and the fact that conspiracy had been established beyond reasonable
doubt, the lower court imposed four death penalties on each of the four accused. The dispositive
portion of the decision states:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered finding all the accused Leonardo Flores alias "Leony’, Alex
King Cruz alias "Boy", Servillano Pariñas alias "Anong" and Ernesto Sarsoza alias "Ramon" guilty beyond
reasonable doubt, of the special complex crime of MULTIPLE RAPE WITH HOMICIDE, on four (4) counts
and as consequence thereof, each of them is hereby sentenced to suffer four (4) death penalties in view
of the existence of conspiracy among the accused and the nature and number of crimes committed
without appreciating the presence of aggravating circumstances, by electrocution, in the manner
prescribed by law, with the accessories of the law, and each to pay one-fourth (1/4) of the costs. They
should, jointly and severally, pay the heirs of the victim, Mercedes Dulay, the amount of P30,000 by way
of indemnification and the amount of P120,000.00 by way of moral damage pursuant to the provisions
of Article 2219 of the New Civil Code without subsidiary imprisonment in case of insolvency and to pay
the amount of P11,250.00 representing the expenses for coffin, funeral, church, burial, 11-day vigil, 9th
day prayer, 40th day death celebration including operating room and Doctor’s assistance fees’; the fair
and reasonable value of the lady seiko wrist watch (P800.00); and cash money of P100.00 taken from
the bag of the victim. The amount of P1,000.00 is excluded from the actual damage claimed since the
gold graduation ring was recovered.

"The Court further directs all the accused, jointly and severally, to pay the heirs of the victim Mercedes
Dulay in the amount of P612,000.00 pursuant to the legal formula: 2/3 (80-29) equals 51 years, the
normal life expectancy of victim at the age of 29. Hence, 2/3 of 51 is 34 years x P18,000.00 yearly salary
of victim gives a total loss of earning capacity in the amount of P612,000.00, without subsidiary
imprisonment in case of insolvency (People v. Daniel, L-66551, 25 April 1985, Gutierrez, J.)

"Let the records of this case be forwarded to the Honorable Supreme Court for automatic review. All the
accused who are presently under detention in the Provincial Jail of Lingayen Pangasinan, are
immediately ordered to be transferred to the National Penitentiary and shall, in the meantime, remain
in confinement thereat pending review by the Supreme Court. They should remain in the National
Penitentiary until further order from this Court.

"Regarding the recommendation of the Provincial Fiscal in his manifestation dated July 10, 1985 to the
effect that accused Leonardo Flores be extended commutation of the death penalty imposed upon him
to life imprisonment (reclusion perpetua) premised on the ground that said accused did not only enter a
voluntary plea of guilty but also voluntarily testified against his co-accused in favor of the state to the
extent of incriminating himself and finding the same founded on legal and meritorious grounds, this
Court has deemed it wise to indorse said recommendation for the consideration by the Honorable
members of the Supreme Court, subject of course, upon the outcome of the automatic review.

751
"SO ORDERED."cralaw virtua1aw library

The case was thus elevated to this Court for automatic review. During its pendency, the 1987
Constitution took effect. In view of the abolition of the death penalty and the consequent elimination of
automatic review by the Court of decisions imposing the death penalty, we required the appellants to
file a personally signed written statement, with the assistance of counsel or in the presence of prison
authorities, on whether they wished to continue with the appeal. 41

Leonardo Flores informed the Court that he was willing to accept reclusion perpetua as his penalty. 42 In
compliance with the Court’s order, his counsel de oficio 43 conferred with Flores and confirmed his
voluntary withdrawal of appeal. 44 Accordingly, the Court resolved to dismiss the appeal of Flores 45
and entry of judgment was made on June 15, 1989. 46

On the other hand, appellants Cruz, Pariñas and Sarsoza, in the presence of prison authorities,
expressed their desire to pursue their appeal. 47 In their brief, said appellants contend that the lower
court erred in: (a) basing its decision of conviction solely on the confession of Flores; (b) attributing
conspiracy in the commission of the crime; (c) disbelieving their testimonies which were corroborated
by other witnesses, and (d) convicting them "inspite of clear and convincing evidence" that Flores was
"the only one guilty of the crime."cralaw virtua1aw library

Appellants’ principal objection to the judgment of conviction is that it is based primarily on the
confession of their co-defendant, Flores, who was the prosecution’s sole eyewitness to the crimes. Their
apprehension is understandable because, as is usual with human nature, a culprit who confesses to a
crime is likely to put the blame as far as possible on others rather than on himself. 48 On the other hand,
confessions, both extrajudicial and judicial, cannot be taken lightly as they are usually not self-serving
declarations but admissions against interest. 49

Thus, extreme caution should be exercised by the courts in dealing with the confession of an accused
which implicates his co-defendants. A distinction, however, should be made between extrajudicial and
judicial confessions. The former deprives the other accused of the opportunity to cross-examine the
confessant while in the latter, his confession is thrown wide open for cross-examination and rebuttal. In
People v. Encipido, 50 the Court held:jgc:chanrobles.com.ph

"The general rule that the confession of an accused may be given in evidence against him but that it is
not competent evidence against his co-accused, admits of exceptions. Thus, this Court has held that
where several accused are tried together for the same complaint, the testimony lawfully given by one
during the trial implicating the others is competent evidence against the latter (People v. Gumaling, 61
Phil. 165 [1935]; U.S. v. Macamay, 36 Phil. 893 [1917]; People v. Borromeo, 60 Phil. 691 [1934]).’The
extrajudicial admission or confession of a co-conspirator out of court is different from the testimony
given by a co-accused during trial. The first is admissible against the declarant alone, but the second is
perfectly admissible against his co-accused’ (People v. Mabassa, 65 Phil. 538 [1938]) who had the right
and opportunity to cross-examine the declarant."cralaw virtua1aw library

In this case, the extrajudicial confession of Flores is inadmissible because he was not assisted by counsel.
51 Moreover, his extrajudicial confession may not even be accorded probative value in view of his
admission of the crime in open court. 52 That being the case, only his judicial confession should be
weighed and considered.

We hold that inspite of minor inaccuracies like the number of persons who participated in the drinking
party prior to the commission of the crime, Flores’ testimonial confession, although uncorroborated,
suffices to support the conviction of the herein appellants because it is positive and credible. 53 The
matter of his credibility, which is basically addressed to the sound discretion of the lower court, has
been settled by its observation that Flores was "frank, candid and straightforward" on the witness stand.
The court noted, on the other hand, that the appellants herein were "nervous, quivering and hesitant."
54

Conspiracy, which was established through the judicial confession of Flores, has been proven beyond
reasonable doubt. It should be remembered that the rule that the statement of a conspirator relating to

752
the conspiracy is not admissible in evidence unless the conspiracy is first shown by other independent
evidence, applies only to an admission in an extrajudicial confession or declaration. It does not apply to
a testimony given directly in court where the defendants have the opportunity to cross-examine the
declarant. 55 Provided it is sincere in itself, given unhesitatingly and in a straightforward manner, and
full of details which by their nature could not have been the result of deliberate afterthought, the
testimony of a co-conspirator, even if uncorroborated, is sufficient. 56

Furthermore, the manner by which the appellants acted in concert pursuant to the same objective
indicates a conspiracy among them. 57 They performed specific acts in the commission of the crime with
such closeness and coordination that would indicate a common purpose and design. 58 Thus, while
Flores grabbed Mercedes by her neck, two others held her limbs while another tore her garments with a
bayonet. The same manner of cooperation was demonstrated when they took turns in raping her.

In this connection, the Court notes that the manner by which the crimes were committed rules out the
probability that they were perpetrated by one person. Flores, who, like his co-accused, was in his early
twenties when the incident happened, could not have committed by himself the atrocities on the
person of the hapless victim without the assistance of other persons. The same conclusion may be
arrived at even in the absence of the physical evidence consisting of the different kinds of human hair
found on the body of Mercedes. Indeed, only the pervert and, in this case, the drugged mind, could
conceive of the heinousness done on the victim.chanrobles law library : red

The defense of alibi cannot save the appellants from conviction. They have not established by clear and
convincing evidence that they were at some other place and for such a period of time as to negate their
presence at the time when and the place where the crimes were committed. 59 It was not physically
impossible for them to have gone to the Samiley irrigation area at the time of the commission of the
crime because it was a mere 500 meters away from the house of Ernesto Uy where they were allegedly
watching a television show. 60 The house of Maximo Sarsoza where they watched an earlier television
show was only 25 meters from Ernesto Uy’s house. 61 It therefore does not defy one’s imagination to
believe that the appellants were at the scene of the crimes when they occurred. As to the matter of time,
the lower court aptly observed that as furnished by the appellants, time was based on calculations and
hence, unreliable.

The appellants attempted to solidify their defense by presenting corroborative witnesses on their
whereabouts. Unfortunately, however, said witnesses were all related to the appellants: Maximo
Sarsoza is the second cousin of appellant Sarsoza’s father; 62 a Brigida Sabado is an aunt of all three
appellants; 63 Dante Sabado, Brigida’s son, is a cousin of the appellants, 64 and Leoncio King Cruz is the
brother of appellant Cruz. 65 Although the appellants claimed that there were several other persons
who saw them watch the television shows, no one of these alleged viewers was presented in court to
shore up the apparently biased testimonies of the appellants’ relatives. The defense of alibi may not
prosper if it is established mainly by the accused themselves and their relatives and not by credible
persons. 66

The lower court correctly considered the crime committed in this case as the special complex crime of
rape with homicide. The information, which is captioned "rape with homicide and robbery" and which
alleges the elements of said crimes, charges the accused of having violated specifically the last
paragraph of Article 335 of the Revised Penal Code as amended by Republic Act Nos. 2632 and 4111. It
should be noted that the defense did not object to the information inspite of its imperfection.

The evidence presented and proved at the trial point to the fact that although robbery was also charged
against the accused, the manner by which the crimes were committed shows that the appellants were
primordially impelled by an intent to commit a crime against chastity rather than against property. Thus,
while Flores testified that Cruz broached the plan "to get (Mercedes’) money, kill her and rape her,
"evidence on the actual execution of the crime reveal that all thoughts of depriving Mercedes of her
valuables were relegated to the background when the appellants’ prurient desires surfaced and were
satisfied.

Hence, the accused did not take any interest on Mercedes’ belongings notwithstanding her pleas for the
appellants to take them in exchange for her life. They persisted in satisfying their lust and even helped

753
each other in their bestial acts. If not for the accidental touching of Mercedes’ ring, the accused’s intent
to rob would have been totally forgotten as the culprits had dumped her body to hide their crime from
immediate discovery. Indeed, the taking of Mercedes’ ring, watch and money turned out to be
afterthought. The force employed on her having no bearing on such illegal taking, the crime committed
is the separate one of theft. 67

For the rape with homicide, the lower court correctly imposed the single indivisible penalty of death,
which, under Article 63 of the Revised Penal Code, may be imposed regardless of any mitigating or
aggravating circumstances which may have attended the commission of the crime. However, by reason
of the constitutional prohibition on the imposition of the death penalty, instead of four death penalties,
the appellants shall suffer four penalties of reclusion perpetua. The four penalties for each of the
appellants is ordained by the fact that conspiracy has been established beyond reasonable doubt. 68

For the theft of Mercedes’ belongings, the total value of the wrist watch (P800) and the money (P100)
determines the penalty imposable on the appellants the ring having been recovered. Under Article
309(3) of the Revised Penal Code, the penalty should be prision correccional in its minimum and
medium periods. Taking into account that no mitigating or aggravating circumstances have been proven,
the penalty should be the medium period of said penalty. Applying the Indeterminate Sentence Law 69
appellants should be meted the indeterminate penalty of four (4) months and one (1) day of arresto
mayor maximum to two (2) years and ten (10) months of prision correccional medium.

The prosecution evidence on the expected income of Mercedes had her life not been snuffed out
needlessly by the appellants as well as the expenses appertaining to her wake and funeral not having
been rebutted by the defense, the Court upholds the lower court’s order that appellants should pay
them.

WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that four
penalties of reclusion perpetua instead of four death penalties shall be imposed on appellants Alex King
Cruz, Servillano Pariñas and Ernesto Sarsoza for the crime of rape with homicide, and, in addition
thereto, they shall suffer the indeterminate penalty of four (4) months and one (1) day of arresto mayor
maximum as minimum to two (2) years and ten (10) months of prision correccional medium as
maximum. Instead of the P30,000 imposed on appellants as indemnity to the heirs of Mercedes Dulay,
they shall pay jointly and severally the amount of P50,000. These penalties shall be served in accordance
with the provisions of the Revised Penal Code.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

G.R. No. 77029 August 30, 1990

BIENVENIDO, ESTELITA, MACARIO, LUIS, ADELAIDE, ENRIQUITA and CLAUDIO, all surnamed,
GEVERO, petitioners,
vs.
INTERMEDIATE APPELLATE COURT and DEL MONTE DEVELOPMENT CORPORATION, respondents.

Carlito B. Somido for petitioners.

Benjamin N. Tabios for private respondent.

PARAS, J.:

This is a petition for review on certiorari of the March 20, 1988 decision 1 of the then Intermediate
Appellate Court (now Court of Appeals) in AC-GR CV No. 69264, entitled Del Monte Development
Corporation vs. Enrique Ababa, et al., etc. affirming the decision 2 of the then Court of First Instance
(now Regional Trial Court) of Misamis Oriental declaring the plaintiff corporation as the true and

754
absolute owner of that portion of Lot 476 of the Cagayan Cadastre, particularly Lot No. 2476-D of the
subdivision plan (LRC) Psd-80450, containing an area of Seven Thousand Eight Hundred Seventy Eight
(7,878) square meters more or less.

As found by the Appellate Court, the facts are as follows:

The parcel of land under litigation is Lot No. 2476 of the Subdivision Plan Psd-37365
containing an area of 20,119 square meters and situated at Gusa, Cagayan de Oro City.
Said lot was acquired by purchase from the late Luis Lancero on September 15, 1964 as
per Deed of Absolute Sale executed in favor of plaintiff and by virtue of which Transfer
Certificate of Title No. 4320 was issued to plaintiff (DELCOR for brevity). Luis Lancero, in
turn acquired the same parcel from Ricardo Gevero on February 5, 1952 per deed of
sale executed by Ricardo Gevero which was duly annotated as entry No. 1128 at the
back of Original Certificate of Title No. 7610 covering the mother lot identified as Lot No.
2476 in the names of Teodorica Babangha — 1/2 share and her children: Maria;
Restituto, Elena, Ricardo, Eustaquio and Ursula, all surnamed surnamed Gevero, 1/2
undivided share of the whole area containing 48,122 square meters.

Teodorica Babangha died long before World War II and was survived by her six children
aforementioned. The heirs of Teodorica Babangha on October 17,1966 executed an
Extra-Judicial Settlement and Partition of the estate of Teodorica Babangha, consisting
of two lots, among them was lot 2476. By virtue of the extra-judicial settlement and
partition executed by the said heirs of Teodorica Babangha, Lot 2476-A to Lot 2476-I,
inclusive, under subdivision plan (LRC) Psd-80450 duly approved by the Land
Registration Commission, Lot 2476-D, among others, was adjudicated to Ricardo Gevero
who was then alive at the time of extra-judicial settlement and partition in 1966.
Plaintiff (private respondent herein) filed an action with the CFI (now RTC) of Misamis
Oriental to quiet title and/or annul the partition made by the heirs of Teodorica
Babangha insofar as the same prejudices the land which it acquired a portion of lot 2476.

Plaintiff now seeks to quiet title and/or annul the partition made by the heirs of
Teodorica Babangha insofar as the same prejudices the land which it acquired, a portion
of Lot 2476. Plaintiff proved that before purchasing Lot 2476-A it first investigated and
checked the title of Luis Lancero and found the same to be intact in the office of the
Register of Deeds of Cagayan de Oro City. The same with the subdivision plan (Exh. "B"),
the corresponding technical description (Exh. "P") and the Deed of Sale executed by
Ricardo Gevero — all of which were found to be unquestionable. By reason of all these,
plaintiff claims to have bought the land in good faith and for value, occupying the land
since the sale and taking over from Lancero's possession until May 1969, when the
defendants Abadas forcibly entered the property. (Rollo, p. 23)

After trial the court a quo on July 18, 1977 rendered judgment, the dispositive portion of which reads as
follows:

WHEREFORE, premises considered, judgment is hereby rendered declaring the plaintiff

corporation as the true and absolute owner of that portion of Lot No. 2476 of the
Cagayan Cadastre, particularly Lot No. 2476-D of the subdivision plan (LRC) Psd-80450,
containing an area of SEVEN THOUSAND EIGHT HUNDRED SEVENTY EIGHT (7,878)
square meters, more or less. The other portions of Lot No. 2476 are hereby adjudicated
as follows:

Lot No. 2476 – B – to the heirs of Elena Gevero;

Lot No. 2476 – C – to the heirs of Restituto Gevero;

Lot No. 2476 – E – to the defendant spouses Enrique C. Torres and Francisca Aquino;

755
 Lot No. 2476 – F – to the defendant spouses Eduard Rumohr and Emilia Merida
Rumohf ;

Lot Nos. 2476-H, 2476-I and 2476 — G — to defendant spouses Enrique Abada and Lilia
Alvarez Abada.

No adjudication can be made with respect to Lot No. 2476-A considering that the said
lot is the subject of a civil case between the Heirs of Maria Gevero on one hand and the
spouses Daniel Borkingkito and Ursula Gevero on the other hand, which case is now
pending appeal before the Court of Appeals. No pronouncement as to costs,

SO ORDERED. (Decision, Record on Appeal, p. 203; Rollo, pp. 21-22)

From said decision, defendant heirs of Ricardo Gevero (petitioners herein) appealed to the IAC (now
Court of Appeals) which subsequently, on March 20, 1986, affirmed the decision appealed from.

Petitioners, on March 31, 1986, filed a motion for reconsideration (Rollo, p. 28) but was denied on April
21, 1986.

Hence, the present petition.

This petition is devoid of merit.

Basically, the issues to be resolved in the instant case are: 1) whether or not the deed of sale
executed by Ricardo Gevero to Luis Lancero is valid; 2) in the affirmative, whether or not the 1/2
share of interest of Teodorica Babangha in one of the litigated lots, lot no. 2476 under OCT No.
7610 is included in the deed of sale; and 3) whether or not the private respondents' action is
barred by laches.

Petitioners maintain that the deed of sale is entirely invalid citing alleged flaws thereto, such as that: 1)
the signature of Ricardo was forged without his knowledge of such fact; 2) Lancero had recognized the
fatal defect of the 1952 deed of sale when he signed the document in 1968 entitled "Settlement to
Avoid the Litigation"; 3) Ricardo's children remained in the property notwithstanding the sale to
Lancero; 4) the designated Lot No. is 2470 instead of the correct number being Lot No. 2476; 5) the
deed of sale included the share of Eustaquio Gevero without his authority; 6) T.C.T. No. 1183 of Lancero
segregated the area of 20,119 square meters from the bigger area (OCT No. 7616) without the consent
of the other co-owners; 7) Lancero caused the 1952 Subdivision survey without the consent of the
Geveros' to bring about the segregation of the 20,119 square meters lot from the mother lot 2476 which
brought about the issuance of his title T-1183 and to DELCOR's title T4320, both of which were illegally
issued; and 8) the area sold as per document is 20,649 square meters whereas the segregated area
covered by TCT No. T-1183 of Lancero turned out to be 20,119 square meters (Petitioners Memorandum,
pp. 62-78).

As to petitioners' claim that the signature of Ricardo in the 1952 deed of sale in favor of Lancero was
forged without Ricardo's knowledge of such fact (Rollo, p. 71) it will be observed that the deed of sale in
question was executed with all the legal formalities of a public document. The 1952 deed was duly
acknowledged by both parties before the notary public, yet petitioners did not bother to rebut the legal
presumption of the regularity of the notarized document (Dy v. Sacay, 165 SCRA 473 [1988]); Nuguid v.
C.A., G.R. No. 77423, March 13, 1989). In fact it has long been settled that a public document executed
and attested through the intervention of the notary public is evidence of the facts in clear, unequivocal
manner therein expressed. It has the presumption of regularity and to contradict all these, evidence
must be clear, convincing and more than merely preponderant (Rebuleda v. I.A.C., 155 SCRA 520-521
[1987]). Forgery cannot be presumed, it must be proven (Siasat v. IAC, No. 67889, October 10, 1985).
Likewise, petitioners allegation of absence of consideration of the deed was not substantiated. Under
Art. 1354 of the Civil Code, consideration is presumed unless the contrary is proven.

As to petitioners' contention that Lancero had recognized the fatal defect of the 1952 deed when he
signed the document in 1968 entitled "Settlement to Avoid Litigation" (Rollo, p. 71), it is a basic rule of

756
evidence that the right of a party cannot be prejudiced by an act, declaration, or omission of another
(Sec. 28. Rule 130, Rules of Court). This particular rule is embodied in the maxim "res inter alios acta
alteri nocere non debet." Under Section 31, Rule 130, Rules of Court "where one derives title to property
from another, the act, declaration, or omission of the latter, while holding the title, in relation to the
property is evidence against the former." It is however stressed that the admission of the former owner
of a property must have been made while he was the owner thereof in order that such admission may
be binding upon the present owner (City of Manila v. del Rosario, 5 Phil. 227 [1905]; Medel v. Avecilla,
15 Phil. 465 [1910]). Hence, Lanceros' declaration or acts of executing the 1968 document have no
binding effect on DELCOR, the ownership of the land having passed to DELCOR in 1964.

Petitioners' claim that they remained in the property, notwithstanding the alleged sale by Ricardo to
Lancero (Rollo, p. 71) involves a question of fact already raised and passed upon by both the trial and
appellate courts. Said the Court of Appeals:

Contrary to the allegations of the appellants, the trial court found that Luis Lancero had
taken possession of the land upon proper investigation by plaintiff the latter learned
that it was indeed Luis Lancero who was the owner and possessor of Lot 2476 D. . . .
(Decision, C.A., p. 6).

As a finding of fact, it is binding upon this Court (De Gola-Sison v. Manalo, 8 SCRA 595 [1963]; Gaduco vs.
C.A., 14 SCRA 282 [1965]; Ramos v. Pepsi-Cola, 19 SCRA 289 [1967]; Tan v. C.A., 20 SCRA 54 [1967];
Ramirez Tel. Co. v. Bank of America, 33 SCRA 737 [1970]; Lucero v. Loot, 25 SCRA 687 [1968]; Guerrero v.
C.A., 142 SCRA 130 [1986]).

Suffice it to say that the other flaws claimed by the petitioners which allegedly invalidated the 1952
deed of sale have not been raised before the trial court nor before the appellate court. It is settled
jurisprudence that an issue which was neither averred in the complaint nor raised during the trial in the
court below cannot be raised for the first time on appeal as it would be offensive to the basic rules of
fair play, justice and due process. (Matienzo v. Servidad, 107 SCRA 276 [1981]; Dela Santa v. C.A., 140
SCRA 44 [1985]; Dihiansan v. C.A., 157 SCRA 434 [1987]; Anchuelo v. IAC, 147 SCRA 434 [1987]; Dulos
Realty and Development Corporation v. C.A., 157 SCRA [1988]; Kamos v. IAC, G.R. No. 78282, July 5,
1989).

Petitioners aver that the 1/2 share of interest of Teodorica (mother of Ricardo) in Lot 2476 under OCT
No. 7610 was not included in the deed of sale as it was intended to limit solely to Ricardos'
proportionate share out of the undivided 1/2 of the area pertaining to the six (6) brothers and sisters
listed in the Title and that the Deed did not include the share of Ricardo, as inheritance from Teodorica,
because the Deed did not recite that she was deceased at the time it was executed (Rollo, pp. 67-68).

The hereditary share in a decedents' estate is transmitted or vested immediately from the moment of
the death of the "causante" or predecessor in interest (Civil Code of the Philippines, Art. 777), and there
is no legal bar to a successor (with requisite contracting capacity) disposing of his hereditary share
immediately after such death, even if the actual extent of such share is not determined until the
subsequent liquidation of the estate (De Borja v. Vda. de Borja, 46 SCRA 577 [1972]).

Teodorica Babangha died long before World War II, hence, the rights to the succession were transmitted
from the moment of her death. It is therefore incorrect to state that it was only in 1966, the date of
extrajudicial partition, when Ricardo received his share in the lot as inheritance from his mother
Teodorica. Thus, when Ricardo sold his share over lot 2476 that share which he inherited from Teodorica
was also included unless expressly excluded in the deed of sale.

Petitioners contend that Ricardo's share from Teodorica was excluded in the sale considering that a
paragraph of the aforementioned deed refers merely to the shares of Ricardo and Eustaquio (Rollo, p.
67-68).

It is well settled that laws and contracts shall be so construed as to harmonize and give effect to the
different provisions thereof (Reparations Commission v. Northern Lines, Inc., 34 SCRA 203 [1970]), to
ascertain the meaning of the provisions of a contract, its entirety must be taken into account (Ruiz v.

757
Sheriff of Manila, 34 SCRA 83 [1970]). The interpretation insisted upon by the petitioners, by citing only
one paragraph of the deed of sale, would not only create contradictions but also, render meaningless
and set at naught the entire provisions thereof.

Petitioners claim that DELCOR's action is barred by laches considering that the petitioners have
remained in the actual, open, uninterrupted and adverse possession thereof until at present (Rollo, p.
17).

An instrument notarized by a notary public as in the case at bar is a public instrument (Eacnio v. Baens, 5
Phil. 742). The execution of a public instrument is equivalent to the delivery of the thing (Art. 1498, 1st
Par., Civil Code) and is deemed legal delivery. Hence, its execution was considered a sufficient delivery
of the property (Buencamino v. Viceo, 13 Phil. 97; [1906]; Puato v. Mendoza, 64 Phil. 457 [1937]; Vda. de
Sarmiento v. Lesaca, 108 Phil. 900 [1960]; Phil. Suburban Development Corp. v. Auditor Gen., 63 SCRA
397 (1975]).

Besides, the property sold is a registered land. It is the act of registration that transfers the ownership of
the land sold. (GSIS v. C.A., G.R. No. 42278, January 20, 1989). If the property is a registered land, the
purchaser in good, faith has a right to rely on the certificate of title and is under no duty to go behind it
to look for flaws (Mallorca v. De Ocampo, No. L-26852, March 25, 1970; Unchuan v. C.A., 161 SCRA 710
[1988]; Nuguid v. CA-G.R. No. 77427, March 13, 1989).

Under the established principles of land registration law, the person dealing with registered land may
generally rely on the correctness of its certificate of title and the law will in no way oblige him to go
behind the certificate to determine the condition of the property (Tiongco v. de la Merced, L-2446, July
25, 1974; Lopez vs. CA., G.R. No. 49739, January 20, 1989; Davao Grains Inc. vs. IAC, 171 SCRA 612
[1989]). This notwithstanding, DELCOR did more than that. It did not only rely on the certificate of title.
The Court of Appeals found that it had first investigated and checked the title (T.C.T. No. T-1183) in the
name of Luis Lancero. It likewise inquired into the Subdivision Plan, the corresponding technical
description and the deed of sale executed by Ricardo Gevero in favor of Luis Lancero and found
everything in order. It even went to the premises and found Luis Lancero to be in possession of the land
to the exclusion of any other person. DELCOR had therefore acted in good faith in purchasing the land in
question.

Consequently, DELCOR's action is not barred by laches.

The main issues having been disposed of, discussion of the other issues appear unnecessary.

PREMISES CONSIDERED, the instant petition is hereby DISMISSED and the decision of the Court of
Appeals is hereby AFFIRMED.

SO ORDERED.

Melencio-Herrera (Chairman), Padilla and Regalado, JJ., concur.

Sarmiento, J., is on leave.

G.R. No. 138470. April 1, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs. ARTEMIO GARCIA y CRUZ, JR. and REGALADO BERNABE y
ORBE, accused.

REGALADO BERNABE y ORBE, Appellant.

DECISION

YNARES-SANTIAGO, J.:

758
This is an appeal from the decision1 dated March 10, 1999 of the Regional Trial Court of Malolos,
Bulacan, Branch 21, in Criminal Case No. 830-M-98, finding Artemio Garcia y Cruz, Jr. and Regalado
Bernabe y Orbe guilty beyond reasonable doubt of the crime of Carnapping with Homicide and
sentencing them to suffer the penalty of reclusion perpetua.

On June 3, 1998, Artemio Garcia, Jr. and Regalado Bernabe were charged with the crime of Carnapping
with Homicide as defined in Republic Act No. 6539. The Information against them reads:

That on or about the 21st day of December, 1996, in the municipality of San Rafael, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring,
confederating together and helping with each other, with intent of gain, did then and there willfully,
unlawfully and feloniously and by means of violence and intimidation, forcibly take from the driver
Wilfredo Elis a brand new Toyota Tamaraw FX with Plate No. UJL-761 owned by Fernando Ignacio;

That during the commission of the offense, or by reason thereof, the said accused, armed with bladed
weapons, conspiring, confederating and helping each other, did then and there, with intent to kill,
willfully, unlawfully and feloniously attack, assault and stab Wilfredo Elis in different parts of his body
causing mortal wounds which directly resulted in his death.

Contrary to law.2cräläwvirtualibräry

Upon arraignment, both accused pleaded not guilty to the crime charged. Thereafter, the case was tried
on the merits.

It appears from the record that on December 17, 1996, Joselito Cortez, a taxicab operator based in
Marilao, Bulacan, was approached by Garcia and Bernabe because they wanted to borrow his brand
new Mitsubishi L300 van for their trip to the Bicol region. Cortez refused, saying that the van was
unavailable.

Instead, he got in touch with Ferdinand Ignacio, who had just purchased a brand new Toyota Tamaraw
FX for P475,500.00.3 Ignacio agreed to lease his vehicle to Cortez for two days at the daily rate of
P2,000.00. Bernabe and Garcia, on the other hand, rented the vehicle from Cortez for P4,000.00 a day
inclusive of the P500.00 drivers fee. They agreed to pay the rental fee upon their return from
Bicol.4cräläwvirtualibräry

In the early morning of December 18, 1996, Cortez and his driver, Wilfredo Elis, picked up Ignacios
Tamaraw FX at his residence in Meycauayan, Bulacan. Elis drove the same back to Marilao, Bulacan and,
at 8:00 a.m., he and the two accused left for Bicol.5cräläwvirtualibräry

Four days passed without a word from Garcia and Bernabe. Cortez began to worry about the vehicle he
had borrowed from Ferdinand Ignacio so he informed the Barangay Captain of Saog, Marilao, Bulacan.
Meanwhile, Elis wife, Nancy, approached Cortez and asked where her husband was.6cräläwvirtualibräry

In the afternoon of December 23, 1996, SPO2 Emmanuel Lapurga of the Moncada, Tarlac Police notified
the Chief of Police that two suspicious looking persons were seen selling a vehicle in Anao, Tarlac at the
grossly inadequate price of P50,000.00. The Chief of Police immediately formed a team, 7 but when they
reached Anao, Tarlac, they found out that the two accused had already left for Nampicuan, Nueva Ecija.
The team thereafter coordinated with the Nueva Ecija Police. The two accused were seen in front of a
store in Brgy. Pangayan, Nampicuan, Nueva Ecija. When they failed to produce documents of ownership
over the Tamaraw FX, they were brought to the Moncada Police Station for
investigation.8cräläwvirtualibräry

Garcia and Bernabe admitted to the Moncada Police that they attempted to sell the Tamaraw FX
belonging to Ferdinand Ignacio. In the early morning of December 24, 1996, a joint team of police
officers composed of members of the Moncada and Marilao Police, together with the Barangay Captain
of Saog, Marilao, Bulacan, were accompanied by Cortez to Moncada, Tarlac, where the latter positively
identified Ignacios Tamaraw FX.

759
Cortez went to visit Garcia and Bernabe in detention. They admitted to him that they stabbed Elis and
dumped him along the highway near the sabana in San Rafael, Bulacan. They claimed that they were
compelled to eliminate Elis when he refused to join their plan to sell the Tamaraw FX. Garcia brought
the policemen, together with Cortez and the Barangay Captain, to San Rafael, Bulacan where he pointed
to the place where they killed Elis. However, the police were unable to find Elis body. After returning to
Moncada, Cortez immediately inspected the interior of the vehicle and found bloodstains on the side
and back of the drivers seat. He also found several personal items belonging to Elis, such as his clothes
and drivers license,9 as well as Garcias bag which contained bonnets, tear gas, the warranty card and the
car registration papers.10cräläwvirtualibräry

On December 29, 1996, the Moncada police received information that a male cadaver was found in San
Rafael, Bulacan, submerged in mud ten meters away from where they searched earlier. The cadaver was
identified as that of Wilfredo Elis by his wife, Nancy.11cräläwvirtualibräry

Dr. Benito Caballero, Municipal Health Officer and Medico-Legal Officer of the province of Bulacan, who
performed the autopsy, found four stab wounds in the posterior, one stab wound in the lateral and one
on the left side of the thorax. He opined that the wounds which penetrated the abdomen and lungs
were fatal.12cräläwvirtualibräry

In their defense, Garcia and Bernabe alleged that they agreed to rent the subject vehicle for a period of
five days from December 18, 1996; thatGarcia and Elis had a fight because the latter allegedly did not
want to go with them to Nueva Ecija; thatElis, while driving the Tamaraw FX, bumped a passenger
jeepney along Baliuag Highway; that they left Elisalong the Baliuag Highway at 3:30 a.m. so he can
inform Cortez that they were already in Bulacan and were en route to Nueva Ecija to have the dented
portion of the vehicle fixed.13cräläwvirtualibräry

After trial, the court a quo rendered a decision, the dispositive portion of which reads:

WHEREFORE, all premises considered, this Court finds and so holds that the prosecution has been able
to establish the accuseds criminal culpability. In view thereof, Artemio Garcia y Cruz, Jr. and Regalado
Bernabe y Orbe are hereby found GUILTY beyond reasonable doubt of the special complex crime of
Carnapping with Homicide in violation of Republic Act No. 6539 as amended by Republic Act No. 7659.
Accordingly, absent any circumstances that will aggravate the commission thereof, both of them are
hereby sentenced to suffer the penalty of Reclusion Perpetua. Further, both accused are hereby ordered
jointly and severally to indemnify the heirs of Wilfredo Elis, the sum of P50,000.00; to pay them the
amount of P100,000.00 for moral damages; P15,290.00 for actual/ compensatory damages; and
P250,000.00 for loss of earnings.

With costs against the accused.

SO ORDERED.14cräläwvirtualibräry

Both accused appealed from the decision of the trial court. On March 31, 2000, accused Garcia filed an
Urgent Motion to Withdraw Appeal,15 which was granted in a Resolution dated September 27, 2000.

Appellant Bernabe raises the following assignment of errors:

THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ALL THE ELEMENTS OF CARNAPPING AS
DEFINED IN REPUBLIC ACT 6539 (ANTI-CARNAPPING ACT) AS AMENDED ARE PRESENT AND DULY
PROVEN.

II

THE HONORABLE TRIAL COURT ERRED IN HOLDING THAT ACCUSED-APPELLANT BERNABE WAS PART OF
AN ALLEGED CONSPIRACY TO COMMIT CARNAPPING.

760
III

THE HONORABLE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT BERNABE ON THE BASIS OF
HIS ALLEGED ADMISSION OF THE CRIME TO PRIVATE INDIVIDUALS.

Republic Act No. 6539, otherwise known as An Act Preventing and Penalizing Carnapping, defines
carnapping as the taking, with intent to gain, of a motor vehicle belonging to another without the latters
consent, or by means of violence against or intimidation of persons, or by using force upon
things.16 More specifically, the elements of the crime are as follows:

1. That there is an actual taking of the vehicle;

2. That the offender intends to gain from the taking of the vehicle;

3. That the vehicle belongs to a person other than the offender himself;

4. That the taking is without the consent of the owner thereof; or that the taking was committed by
means of violence against or intimidation of persons, or by using force upon things.17cräläwvirtualibräry

A careful examination of the evidence presented shows that all the elements of carnapping were proved
in this case.

Unlawful taking is the taking of a vehicle without the consent of the owner, or by means of violence
against or intimidation of persons, or by using force upon things; it is deemed complete from the
moment the offender gains possession of the thing, even if he has no opportunity to dispose of the
same.18cräläwvirtualibräry

In the case at bar, it cannot be denied that the nature of the appellants possession of the Tamaraw FX
was initially lawful. Nevertheless, the unlawful killing of the deceased for the purpose of taking the
vehicle radically transformed the character of said possession into an unlawful one. Cortez categorically
stated that during his first visit to the Moncada Police Station where appellant and his co-accused were
detained, the two separately admitted to him that they killed the deceased when the latter refused to
join their plan to sell the vehicle. Their confession, having been freely and voluntarily given to Cortez, a
private individual, is admissible against the appellant.19 Thus, the duration of the lease of the Tamaraw
FX, whether for an indefinite period as contended by the defense, or only for 4 days, as claimed by the
prosecution, has no bearing on the culpability of the appellant. It does not matter whether the unlawful
taking occurred within the period of the lease. What is decisive here is the purpose of appellant and his
co-accused in killing the victim. Such is the vital point on which the crime and the nature thereof is to be
determined. To reiterate, the prosecution was able to establish that appellant and his co-accused
stabbed the victim to death because he refused to join them in their plan to appropriate the vehicle.
This undoubtedly satisfied the element of unlawful taking through violence, rendering appellant liable
for the crime charged.

Moreover, it must be stressed that the acts committed by appellant constituted the crime of carnapping
even if the deceased was the driver of the vehicle and not the owner. The settled rule is that, in crimes
of unlawful taking of property through intimidation or violence, it is not necessary that the person
unlawfully divested of the personal property be the owner thereof. What is simply required is that the
property taken does not belong to the offender. Actual possession of the property by the person
dispossessed suffices. So long as there is apoderamiento of personal property from another against the
latter's will through violence or intimidation, with animo de lucro, unlawful taking of a property
belonging to another is imputable to the offender. 20cräläwvirtualibräry

Furthermore, at the time of their apprehension, appellant Bernabe and Garcia were unable to give a
plausible explanation why they still had the Tamaraw FX in their possession. Appellant Bernabe claims
that he and his co-accused went to Nampicuan, Nueva Ecija to have the dent on the vehicle repaired.
Garcia, on the other hand, testified that there was no such damage. A person in possession of a stolen
article is presumed guilty of having illegally and unlawfully taken the same unless he can satisfactorily
explain his possession of the thing.21cräläwvirtualibräry

761
Appellant contends that he did not conspire with his co-accused to commit the crime of carnapping.

Conspiracy exists when two or more persons come to an agreement concerning the commission of a
felony and decide to commit it. Conspiracy need not be proved by direct evidence and may be inferred
from the conduct of the accused before, during and after the commission of the crime,22 which are
indicative of a joint purpose, concerted action and concurrence of sentiments.23 In conspiracy, the act of
one is the act of all. Conspiracy is present when one concurs with the criminal design of another,
indicated by the performance of an overt act leading to the crime committed. It may be deduced from
the mode and manner in which the offense was perpetrated.24cräläwvirtualibräry

In the case at bar, it was sufficiently proved that Garcia and Bernabe, through Joselito Cortez, hired the
brand new Toyota Tamaraw FX belonging to Ferdinand Ignacio for their trip to Bicol; that at 8:00 a.m. of
December 18, 1996, they left for Bicol on board the Tamaraw FX driven by Elis; that on December 23,
1996, SPO2 Emmanuel Lapurga of Moncada, Tarlac reported to the Chief of Police that two suspiciously
looking persons, who turned out to be Garcia and Bernabe were offering to sell a brand new Toyota
Tamaraw FX for a mere P50,000.00 in Anao, Tarlac; and that the two were finally apprehended with the
subject vehicle at Nampicuan, Nueva Ecija by elements of the Tarlac and Nueva Ecija Police.

While there may be no direct evidence of the commission of the crime, the foregoing constitute
circumstantial evidence sufficient to warrant Garcias and Bernabes conviction. The following requisites
for circumstantial evidence to sustain a conviction were met, to wit: (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and (3) the combination of
all the circumstances is such as to produce a conviction beyond reasonable doubt.25 The circumstances
indeed form an unbroken chain which leads to a fair and reasonable conclusion that Bernabe and Garcia
were the perpetrators of the crime. It has been held that facts and circumstances consistent with guilt
and inconsistent with innocence constitute evidence which, in weight and probative force, may surpass
even direct evidence in its effect upon the court.26cräläwvirtualibräry

The records show that Garcia and Bernabe admitted to Cortez and Ignacio that they were responsible
for taking the vehicle and killing the victim, Elis. On December 24, 1996, Cortez went to the Moncada
Municipal Jail and talked to them while they were detained. Both admitted to him that they forcibly
took the said vehicle from Elis, stabbed him and thereafter dumped him at San Rafael,
Bulacan.27 Subsequently, on December 26, 1996, Cortez and Ignacio went to Moncada and confronted
the two in their cells. Garcia admitted to Cortez and Ignacio that they stole the vehicle because they
were in dire need of money, while Bernabe kept quiet.28cräläwvirtualibräry

Appellant Bernabe maintains that the trial court erred in admitting in evidence his admission to Cortez
and Ignacio on the grounds that (a) he did not make such admission; (b) the admission made by Garcia
should not prejudice him; and (c) assuming he made such admission, it should be excluded for having
been made under duress and intimidation.29cräläwvirtualibräry

In People v. Andan,30 it was held that the constitutional procedures on custodial investigation do not
apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an
ordinary manner whereby appellant orally admitted having committed the crime. What the Constitution
bars is the compulsory disclosure of incriminating facts or confessions. The rights under Article III,
Section 12 of the Constitution are guaranteed to preclude the slightest use of coercion by the state as
would lead the accused to admit something false, and not to prevent him from freely and voluntarily
telling the truth. Hence, appellants voluntary admission to Cortez that he and his co-accused conspired
in killing the deceased when the latter opposed their plan to sell the vehicle is admissible as evidence
against him.

Anent Garcias extrajudicial confession implicating appellant in the commission of the offense, it appears
that the latter did not oppose or affirm Garcias statement. Neither did he make an attempt to refute the
same insofar as his participation in the commission of the crime was concerned. As correctly observed
by the Office of the Solicitor General, he cannot invoke his silence during this crucial moment as his right.
He ought to speak and failing to do so, his silence weighs heavily on him. Thus, it was not accused-
appellants Garcias admission that prejudiced accused-appellant Bernabe, but his own silence when it
was such as naturally to call for action or comment if not true.31cräläwvirtualibräry

762
Rule 130, Section 32 of the Rules of Court provides that an act or declaration made in the presence and
within the hearing or observation of a party who does or says nothing when the act or declaration is
such as naturally to call for action or comment if not true, and when proper and possible for him to do
so, may be given in evidence against him.

We likewise find no merit in the allegation that duress was employed on appellant. Suffice it to state
that such bare allegation of force and duress is not enough to prove that he was indeed tortured to
admit complicity in the offense charged.

The penalty for carnapping is provided in Section 14 of RA 6539, as amended by Section 20 of RA 7659,
to wit:

Sec. 14. Penalty for Carnapping.- Any person who is found guilty of carnapping, as this term is defined in
Section Two of this Act, shall, irrespective of the value of motor vehicle taken, be punished by
imprisonment for not less than fourteen years and eight months and not more than seventeen years
and four months, when the carnapping is committed without violence or intimidation of persons, or
force upon things; and by imprisonment for not less than seventeen years and four months and not
more than thirty years, when the carnapping is committed by means of violence against or intimidation
of any person, or force upon things; and the penalty of reclusion perpetua to death shall be imposed
when the owner, driver or occupant of the carnapped motor vehicle is killed or raped in the course of
the commission of the carnapping or on the occasion thereof.32 (Emphasis supplied)

Hence, the trial court correctly imposed the penalty of reclusion perpetua on appellant Bernabe and his
co-accused, Garcia.

The award by the trial court of P50,000.00 in favor of the heirs of the victim should be affirmed. When
death occurs as a result of a crime, the heirs of the deceased are entitled to such amount as indemnity
for the death, without need of any evidence of proof of damages.33 This is in addition to the actual
damages of P15,290.50 which was duly substantiated by proof.34 We, however, reduce the award of
moral damages to P50,000.00, in line with current jurisprudence.35cräläwvirtualibräry

Lastly, we find the court a quos award of P250,000.00 for loss of earning capacity to be without basis.
Nancy testified that her husband Wilfredo was earning P600.00 a day prior to his death,36 however, she
failed to produce evidence to substantiate her claim. As held in the case of People v. Panabang,37 a self-
serving statement is not enough; the indemnification for loss of earning capacity must be duly proven.

WHEREFORE, the decision dated March 10, 1999, of the Regional Trial Court of Malolos, Bulacan, Branch
21, finding appellant Regaldo Bernabe y Orbe guilty of Carnapping with Homicide, sentencing him to
suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the victim, Wilfredo Elis,
the sums of P50,000.00 as civil indemnity and P15,290.00 as actual damages, is AFFIRMED with the
following MODIFICATIONS: Appellant is further ordered to pay the heirs of the victim, Wilfredo Elis,
moral damages in the reduced amount of P50,000.00. The award of P250,000.00 for loss of earnings is
DELETED for lack of factual basis.

Costs de officio.

SO ORDERED.

G.R. No. 71980 March 18, 1991

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
LEONARDO FLORES, ALEX KING CRUZ, SERVILLANO PARIÑAS and ERNESTO SARSOZA, defendants-
appellants.

The Solicitor General for plaintiff-appelle.

Francisco E. Antonio for defendants-appellants.

763
FERNAN, C.J.:

Quietly traversing the barrio road on her way home, unaware of the danger that lurked in the night, the
victim, a registered nurse, did not have the slightest idea that she would fall into the abyss of death on
that fateful night of September 21, 1984. She was mercilessly raped and killed by four men.

The morning after, her naked body with a branch of ipil-ipil inserted into her private part, was found
lying prostrate with several hack and stab wounds. She was identified as Mercedes M. Dulay.

Having received a report on the killing, the police at Manaoag, Pangasinan immediately went to the
irrigation canal where the body of Mercedes was found. A few hours later, Leonardo Flores was
apprehended. He was taken to the Manaoag police station where he was investigated. He revealed his
companions in the commission of the crime as Ernesto Sarsoza alias Ramon, Alex King Cruz alias Boy and
Servillano Parinas alias Anong. The four were later charged with rape with homicide and robbery in the
Regional Trial Court at Lingayen, Pangasinan in an information which reads:

That on or about September 21, 1984, in the evening, in barangay Inamotan, municipality of
Manaoag, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable
Court, the above-named accused conspiring, confederating, mutually helping one another, with
abuse of superior strength and taking advantage of nighttime, did then and there, wilfully,
unlawfully, feloniously and with lewd designs, forcibly took turns in having sexual intercourse
with Mercedes Dulay against her will, after which, and by reason of such rape accused with
intent to kill, did then and there, wilfully, unlawfully and feloniously strike and stab Mercedes
Dulay on different parts of her body inflicting mortal wounds which caused her death and,
thereafter, accused got a piece of ipil-ipil wood about 1 1/4 centimeter in diameter and inserted
it in her vaginal canal, and on the occasion thereof accused with intent to gain, did then and
there wilfully, unlawfully and feloniously take and carry away a gold graduation ring valued at
One Thousand (P1,000.00) Pesos, lady Seiko wrist watch valued at Eight Hundred (P800.00)
Pesos and cash money amounting to One Hundred (100.00) Pesos all belonging to said
Mercedes Dulay, to the damage and prejudice of her heirs.

That the commission of this offense was attended by the aggravating circumstances of evident
premeditation, use of superior strength, nighttime which was purposely sought by the accused
to facilitate and insure its commission and circumstances brought about which added ignominy
to the natural effects of the crime.

Contrary to Article 335 of the Revised Penal Code as amended by Rep. Act No. 2632 & Rep. Act
No. 4111.1

At the arraignment, Alex King Cruz, Servillano Pariñas and Ernesto Sarsoza, assisted by counsel, pleaded
not guilty to the charge. Leonardo Flores initially pleaded guilty but the court prudently deemed it wise
to defer action on his plea to give him time to engage the services of a counsel of his choice. The court
forthwith recorded a plea of not guilty for Leonardo Flores.2

On December 19, 1984, Leonardo Flores was rearraigned. He reiterated his plea of guilty. Hence, the
court admonished him once more of the meaning, extent and effect of his plea. Since Flores insisted on
entering a plea of guilty, the court ordered the withdrawal of his recorded plea of not guilty and entered
that of guilty. The court, however, deferred its judgment until such time when the prosecution had fully
presented its evidence.3

Before the presentation of such evidence, Flores volunteered to testify for the government "to tell all
the truth about the case."4

According to Flores the following transpired:

At about 6:00 o'clock in the evening of September 21, 1984, Flores was in the house of a friend named
Jose Cacayan. He was with Cruz, Pariñas and Sarsoza. They drank one bottle of White Castle. They also
had five sticks of marijuana and each one smoked a stick. They passed around the fifth stick.5

764
About an hour later, the group parted ways. Flores went home to take his supper. All four of them,
however, returned to the house of Jose Cacayan at around 7:30 p.m.6 Cruz told them to proceed to the
east to wait for Mercedes "to get her money, kill her and rape her." The three of them agreed to Cruz's
proposal and Sarsoza even said, "I am going to rape and kill her."7

The group proceeded to the Samiley irrigation site which was around fifty meters from the house of
Cacayan. It took them five minutes to reach the place. Along the way, Flores heard the three remarked
that "something (was) already wrong" with their minds.8

They waited for Mercedes for around thirty minutes in a forested area about five electric posts away
from the national road.9 As proposed by the three, when Mercedes was some five meters from them,
Flores caught her by placing his left arm around her neck. Cruz pulled her dress by her neckline and
Pariñas stuck her head twice with a stone. Sarsoza held her by her legs. Then they forced her to lie down
on the barrio road. Mercedes cried, "Take everything you want (from) me but please do not kill me."10

Cruz insisted that they should kill her. Out of pity, Flores asked them not to kill her but Pariñas retorted
that they better kill her so that she could not report the incident to the authorities. Sarsoza also believed
that they should kill her.

Mercedes was lying down when Cruz tore her dress from neckline to the hemline with a one-foot long
bayonet and in the process also tore her bra and half-slip. Flores was holding her hands while the two
others were holding her legs when Cruz ripped apart her panty also with his bayonet.11 Cruz then
lowered his pants and briefs to his knees, went on top of Mercedes, mashed her breast and nipples and
then "took her womanhood." Mercedes once more pleaded "Please get everything from me but please
do not kill me."12

While Cruz was on top Mercedes, Flores was holding her hands, Pariñas her left leg and Sarzosa her right
leg. After about a minute, Pariñas took his turn in having sexual intercourse with Mercedes. Flores still
held her hands while Cruz took Pariñas' place in holding her left leg. About a minute later, Sarzosa took
his turn in ravishing Mercedes while Pariñas grabbed and held her leg. Flores was the last to have
intercourse with Mercedes while Sarsoza held her hands and the two others her legs.13

Thereafter, Sarsoza stabbed her breast with his own bayonet as Mercedes begged, "Have mercy on me.
Do not kill me." But Cruz slashed her neck nonetheless and she was forever silenced.14

Flores and Sarzosa dumped her in a canal about a meter away from the road where they raped and
killed her so that nobody could see her right away while Cruz and Pariñas watched. Sarsoza took a
branch of a nearby ipil-ipil tree with his bolo, gave the 14-inch long branch to Flores and ordered him to
insert it into the vagina of Mercedes with a warning that should he fail to do so, he would kill Flores.15

After accomplishing the dastardly act, Flores accidentally touched Mercedes' college ring with "Baguio
General Hospital" engraved on it. He got the ring which also bore Mercedes' name. From the canal,
Flores saw the shoulder bag of Mercedes, got it, took the money amounting to one hundred pesos and
threw away the bag in the nearby forested area. Cruz also took the wrist watch from Mercedes' arm.
Thereafter, they went their separate ways—Flores proceeded to the east while the three went towards
the west.16

At home, Flores went to bed and awoke around 6:00 o'clock the following morning. He took Mercedes'
ring and erased her engraved name on it. He went to the field to plant rice and stayed there until
noontime when he went home for lunch.

In the afternoon, he changed clothes to go to town to watch a movie. On the way, he met motorcycle-
riding policemen who invited him for investigation. Having learned that the investigation was about the
crimes committed against Mercedes, Flores fled. The policemen fired a warning shot but still Flores ran
thereby attracting the barrio people who also pursued him. When they saw him crawling on the ricefield,
the people stoned Flores hitting him on the left leg. As they mauled him, Flores revealed the identity of
his companions.17 A police officer retrieved a blood-stained bayonet from Flores' waist and Mercedes'
graduation ring from his pocket.18

765
At the Manaoag police station, Flores executed a sworn statement. Asked if he needed the assistance of
counsel, Flores replied that with or without counsel, he wanted to give a statement voluntarily and
freely. He declared in the statement that they were drinking because it was his birthday, named Pariñas,
Cruz and Sarsoza as his companions, and related how they perpetrated the crime which they had been
planning for four days.19

Meanwhile, pictures were taken of the body of Mercedes at the crime scene.20 She was autopsied by the
rural health unit physician in Manaoag at 9:30 a.m. of September 22, 1984. The postmortem report
reveals that Mercedes, who was 29 years old when she died, sustained the following injuries:

Lacerated wound and hematoma, right posterior parietal region of the head—1 cm. in length

Post auricular right side—1 in. incised wound

Left side of the neck—zigzag, hacking wound, longest 4 in. shortest 3/4 in.

Anterior part of the neck, near the vocal chord—stab wound, 1 in. in width, depth 1 1/4 in.

Stab wound on the chest right side—2 inches above right nipple, 1 1/2 in width with 6 in depth

Lateral right part at the back posteriorly near the axila, 7 1/4 in. deep, with 11 1/2 in. stab
wound

Right hand—incised wound between right thumb and index finger, 1 in. posterior, anterior 1/4
in.

Hacking wound on index finger, right hand

Hacking wound between index and middle finger

Hacking wound on the center of middle finger

2 hacking wounds on the left right finger (center)

hacking wound on palm—near the root of left small finger, 1 1/2 in. in length,

The examining physician also found, after an internal examination, that the "introitus" admitted 1 1/2
fingers easily, that there was about 3 cc. of clear fluid coming out of the vaginal opening and that there
were abrasions on the mucuosa of the vaginal canal. She also indicated in the postmortem report that a
piece of ipil-ipil wood, 1 1/4 inches in diameter was found inserted in the victim's vaginal canal. She
attributed the cause of death to "massive hemorrhage due to multiple stab wounds and hacking
wounds.21 The death certificate also shows that Mercedes died between 8:00 and 9:00 p.m. of
September 21, 1984.22

Upon the request of Carmen Molintas Dulay, the victim's mother,23 the National Bureau of Investigation,
through Dr. Arturo G. Llavore, performed another autopsy on the victim on September 30, 1984. Dr.
Llavore indicated in Autopsy Report No. NO-84-33-P that Mercedes died because of "hemorrhage,
severe, secondary to multiple stabbed and hacked wounds." He also arrived at the conclusion that the
genital findings on the victim were "compatible with sexual intercourse with man and consistent with
alleged date of commission.24 He also presented in court photographs of the victim taken during the
autopsy.25

Carolyn Custodio, a supervising chemist at the NBI, testified that the tests for blood on the bayonet
yielded negative results but she found human blood belonging to group B on the panty 26 She found no
spermatozoa and seminal stains on the ipil-ipil branch27 but a comparative examination of the head and
pubic hair specimens taken from the crime scene revealed that there were not similar as they varied in
color, length, presence of medulla tips, diameter, medullary index and hair characteristics.28 Custodio
concluded that the hair samples belonged to several persons.29

766
Emilio Dulay, the victim's father, testified that Mercedes was a registered nurse who worked at the
Villaflor Clinic in Dagupan City. Her monthly earnings therein consisted of P1,000 as salary and P500 as
assistant's fee.30 She shared one-half of her earnings with the family. For her 13-day wake, the family
spent P400 for food. They also spent P10,000 for the coffin and funeral services31 and a total of P300 for
the traditional commemoration of the 9th and 40th day from her death.32 While Mercedes was lying in
state, the family received a telegram dated September 24, 1984 addressed to her directing her to report
for a final interview for a job at the King Fahd Armed Forces Hospital at Jeddah, Saudi Arabia.33

According to Emilio Dulay, in reporting for work, his daughter used to walk a kilometer from their home
to the irrigation site where she would take a tricycle to Urdaneta. From there, Mercedes would take a
bus for Dagupan City. She usually goes home between 6:00 and 8:00 o'clock in the evening. 34 He used to
send someone to fetch her at the irrigation site but on that fateful night Mercedes was alone.35

Defendants Cruz, Sarsoza and Pariñas denied having anything to do with the crimes. They interposed
alibi as a defense and related in court that between 6:00 and 7:30 o'clock in the evening of September
21, 1984, the three of them, together with Flores, Jose Cacayan and five other persons were drinking
Tanduay Rhum near the irrigation canal opposite the house of Cacayan it being the birthday of
Flores.36 At around 7:15 p.m. their companions, Wilfredo Lacambra, Alfonso Cruz and Salvador Sarsoza
left for home. Fifteen minutes later, the rest of the group broke up—Flores went east heading for his
residence at barangay Lelemaan while Jose Cacayan, Bernabe Cacayan, Henry Sarsoza, Cruz, Sarsoza and
Pariñas went west.37

Sarsoza went home to have supper. Immediately thereafter, he went to the house of his uncle Maximo
Sarsoza to watch the television program "Bagong Kampeon." He joined therein Cruz and Pariñas. When
the program was over, Sarsoza, Cruz and Pariñas transferred to the house of Ernesto Uy for another
television program, "Beast Master." They watched the program through a wide window of the Uy
residence together with Brigida Sabado and her son, Dante. Before the program was over, Sarsoza and
Dante Sabado left for home to sleep while Cruz, Pariñas and Brigida stayed to finish the show at around
10:30 p.m. Thereafter, they all went home.38

In its 62-page decision of July 30, 1985, the lower court39 held that Flores' detailed recital of facts at the
trial together with his extrajudicial confession pointed to no other conclusion than that the four accused
"carried their plot to rape, kill and rob the victim in concert and pursuant to their previous
agreement.40 It appreciated the aggravating circumstances of evident premeditation, treachery,
nighttime, uninhabited place, abuse of superior strength and ignominy. It noted "other wrongs
committed" which were not necessary for the commission of the crimes like the insertion of the ipil-ipil
branch on the victim's vagina, the fact that the accused acted under the influence of dangerous drugs
and the asportation of Mercedes' belongings after she had been raped and killed.

Taking into consideration however, the provision of Article 63 of the Revised Penal Code that "in all
cases in which the law prescribes a single indivisible penalty, it shall be applied by the courts regardless
of any mitigating circumstances that may have attended the commission of the deed;" the provision of
Article 335 of the same Code which imposes the death penalty when by reason or on the occasion of the
rape, a homicide is committed, and the fact that conspiracy had been established beyond reasonable
doubt, the lower court imposed four death penalties on each of the four accused. The dispositive
portion of the decision states:

WHEREFORE, judgment is hereby rendered finding all the accused Leonardo Flores alias "Leony",
Alex King Cruz alias "Boy", Servillano Pariñas alias "Anong" and Ernesto Sarsoza alias "Ramon"
guilty beyond reasonable doubt, of the special complex crime of MULTIPLE RAPE WITH
HOMICIDE, on four (4) counts and as consequence thereof, each of them is hereby sentenced to
suffer four (4) death penalties in view of the existence of conspiracy among the accused and the
nature and number of crimes committed without appreciating the presence of aggravating
circumstances, by electrocution, in the manner prescribed by law, with the accessories of the
law, and each to pay one-fourth (1/4) of the costs. They should, jointly and severally, pay the
heirs of the victim, Mercedes Dulay, the amount of P30,000 by way of indemnification and the
amount of Pl20,000.00 by way of moral damage pursuant to the provisions of Article 2219 of the
New Civil Code without subsidiary imprisonment in case of insolvency and to pay the amount of

767
 P11,250.00 representing the expenses for coffin, funeral, church, burial, 11-day vigil, 9th day
prayer, 40th day death celebration including operating room and Doctor's assistance fees'; the
fair and reasonable value of the lady seiko wrist watch (P800.00); and cash money of P100.00
taken from the bag of the victim. The amount of P1,000.00 is excluded from the actual damage
claimed since the gold graduation ring was recovered.

The Court further directs all the accused, jointly and severally, to pay the heirs of the victim
Mercedes Dulay in the amount of P612,000.00 pursuant to the legal formula: 2/3 (80-29) equals
51 years, the normal life expectancy of victim at the age of 29. Hence, 2/3 of 51 is 34 years x
P18,000.00 yearly salary of victim gives a total loss of earning capacity in the amount of
P612,000.00, without subsidiary imprisonment in case of insolvency (People vs. Daniel, L-66551,
25 April 1985, Gutierrez, J.)

Let the records of this case be forwarded to the Honorable Supreme Court for automatic review.
All the accused who are presently under detention in the Provincial Jail of Lingayen, Pangasinan,
are immediately ordered to be transferred to the National Penitentiary and shall, in the
meantime, remain in confinement thereat pending review by the Supreme Court. They should
remain in the National Penitentiary until further order from this Court.

Regarding the recommendation of the Provincial Fiscal in his manifestation dated July 10, 1985
to the effect that accused Leonardo Flores be extended commutation of the death penalty
imposed upon him to life imprisonment (reclusion perpetua) premised on the ground that said
accused did not only enter a voluntary plea of guilty but also voluntarily testified against his co-
accused in favor of the state to the extent of incriminating himself and finding the same
founded on legal and meritorious grounds, this Court has deemed it wise to indorse said
recommendation for the consideration by the Honorable members of the Supreme Court,
subject of course, upon the outcome of the automatic review.

SO ORDERED.

The case was thus elevated to this Court for automatic review. During its pendency, the 1987
Constitution took effect. In view of the abolition of the death penalty and the consequent elimination of
automatic review by the Court of decisions imposing the death penalty, we required the appellants to
file a personally signed written statement, with the assistance of counsel or in the presence of prison
authorities, on whether they wished to continue with the appeal.41

Leonardo Flores informed the Court that he was willing to accept reclusion perpetua as his penalty.42 In
compliance with the Court's order, his counsel de oficio43 conferred with Flores and confirmed his
voluntary withdrawal of appeal.44 Accordingly, the Court resolved to dismiss the appeal of Flores45 and
entry of judgment was made on June 15, 1989.46

On the other hand, appellants Cruz, Pariñas and Sarsoza, in the presence of prison authorities,
expressed their desire to pursue their appeal.47 In their brief, said appellants contend that the lower
court erred in: (a) basing its decision of conviction solely on the confession of Flores; (b) attributing
conspiracy in the commission of the crime; (c) disbelieving their testimonies which were corroborated
by other witnesses, and (d) convicting them "inspite of clear and convincing evidence" that Flores was
"the only one guilty of the crime."

Appellants' principal objection to the judgment of conviction is that it is based primarily on the
confession of their co-defendant, Flores, who was the prosecution's sole eyewitness to the crimes. Their
apprehension is understandable because, as is usual with human nature, a culprit who confesses to a
crime is likely to put the blame as far as possible on others rather than on himself.48 On the other hand,
confessions, both extrajudicial and judicial, cannot be taken lightly as they are usually not self-serving
declarations but admissions against interest.49

Thus, extreme caution should be exercised by the courts in dealing with the confession of an accused
which implicates his co-defendants. A distinction, however, should be made
between extrajudicial and judicial confessions. The former deprives the other accused of the

768
opportunity to cross-examine the confessant while in the latter, his confession is thrown wide open for
cross-examination and rebuttal. In People vs. Encipido, 50 the Court held:

The general rule that the confession of an accused may be given in evidence against him but
that it is not competent evidence against his co-accused, admits of exceptions. Thus, this Court
has held that where several accused are tried together for the same complaint, the testimony
lawfully given by one during the trial implicating the others is competent evidence against the
latter (People vs. Gumaling, 61 Phil. 165 [1935]; U.S. vs. Macamay, 36 Phil. 893 [1917]; People vs.
Borromeo, 60 Phil. 691 [1934]).'The extrajudicial admission or confession of a co-conspirator out
of court is different from the testimony given by a co-accused during trial. The first is admissible
against the declarant alone, but the second is perfectly admissible against his co-accused'
(People vs. Mabassa, 65 Phil. 538 [1938]) who had the right and opportunity to cross-examine
the declarant.

In this case, the extrajudicial confession of Flores is inadmissible because he was not assisted by
counsel.51 Moreover, his extrajudicial confession may not even be accorded probative value in view of
his admission of the crime in open court.52 That being the case, only his judicial confession should be
weighed and considered.

We hold that inspite of minor inaccuracies like the number of persons who participated in the drinking
party prior to the commission of the crime, Flores' testimonial confession, although uncorroborated,
suffices to support the conviction of the herein appellants because it is positive and credible.53 The
matter of his credibility, which is basically addressed to the sound discretion of the lower court, has
been settled by its observation that Flores was "frank, candid and straightforward" on the witness stand.
The court noted, on the other hand, that the appellants herein were "nervous, quivering and hesitant.54

Conspiracy, which was established through the judicial confession of Flores, has been proven beyond
reasonable doubt. It should be remembered that the rule that the statement of a conspirator relating to
the conspiracy is not admissible in evidence unless the conspiracy is first shown by other independent
evidence, applies only to an admission in an extrajudicial confession or declaration. It does not apply to
a testimony given directly in court where the defendants have the opportunity to cross-examine the
declarant.55 Provided it is sincere in itself, given unhesitatingly and in a straightforward manner, and full
of details which by their nature could not have been the result of deliberate afterthought, the testimony
of a co-conspirator, even if uncorroborated, is sufficient.56

Furthermore, the manner by which the appellants acted in concert pursuant to the same objective
indicates a conspiracy among them.57 They performed specific acts in the commission of the crime with
such closeness and coordination that would indicate a common purpose and design.58 Thus, while Flores
grabbed Mercedes by her neck, two others held her limbs while another tore her garments with a
bayonet. The same manner of cooperation was demonstrated when they took turns in raping her.

In this connection, the Court notes that the manner by which the crimes were committed rules out the
probability that they were perpetrated by one person. Flores, who, like his co-accused, was in his early
twenties when the incident happened, could not have committed by himself the atrocities on the
person of the hapless victim without the assistance of other persons. The same conclusion may be
arrived at even in the absence of the physical evidence consisting of the different kinds of human hair
found on the body of Mercedes. Indeed, only the pervert and, in this case, the drugged mind, could
conceive of the heinousness done on the victim.

The defense of alibi cannot save the appellants from conviction. They have not established by clear and
convincing evidence that they were at some other place and for such a period of time as to negate their
presence at the time when and the place where the crimes were committed.59 It was not physically
impossible for them to have gone to the Samiley irrigation area at the time of the commission of the
crime because it was a mere 500 meters away from the house of Ernesto Uy where they were allegedly
watching a television show.60 The house of Maximo Sarsoza where they watched an earlier television
show was only 25 meters from Ernesto Uy's house.61 It therefore does not defy one's imagination to
believe that the appellants were at the scene of the crimes when they occurred. As to the matter of time,

769
the lower court aptly observed that as furnished by the appellants, time was based on calculations and
hence, unreliable.

The appellants attempted to solidify their defense by presenting corroborative witnesses on their
whereabouts. Unfortunately, however, said witnesses were all related to the appellants: Maximo
Sarsoza is the second cousin of appellant Sarsoza's father;62 Brigida Sabado is an aunt of all three
appellants;63 Dante Sabado, Brigida's son, is a cousin of the appellants,64 and Leoncio King Cruz is the
brother of appellant Cruz.65 Although the appellants claimed that there were several other persons who
saw them watch the television shows, no one of these alleged viewers was presented in court to shore
up the apparently biased testimonies of the appellants' relatives. The defense of alibi may not prosper if
it is established mainly by the accused themselves and their relatives and not by credible persons.66

The lower court correctly considered the crime committed in this case as the special complex crime of
rape with homicide.1âwphi1 The information, which is captioned "rape with homicide and robbery" and
which alleges the elements of said crimes, charges the accused of having violated specifically the last
paragraph of Article 335 of the Revised Penal Code as amended by Republic Act Nos. 2632 and 4111. It
should be noted that the defense did not object to the information inspite of its imperfection.

The evidence presented and proved at the trial point to the fact that although robbery was also charged
against the accused, the manner by which the crimes were committed shows that the appellants were
primordially impelled by an intent to commit a crime against chastity rather than against property. Thus,
while Flores testified that Cruz broached the plan "to get (Mercedes') money, kill her and rape
her," evidence on the actual execution of the crime reveal that all thoughts of depriving Mercedes of her
valuables were relegated to the background when the appellants' prurient desires surfaced and were
satisfied.

Hence, the accused did not take any interest on Mercedes' belongings notwithstanding her pleas for the
appellants to take them in exchange for her life. They persisted in satisfying their lust and even helped
each other in their bestial acts. If not for the accidental touching of Mercedes' ring , the accused's intent
to rob would have been totally forgotten as the culprits had dumped her body to hide their crime from
immediate discovery. Indeed, the taking of Mercedes' ring, watch and money turned out to be
afterthought. The force employed on her having no bearing on such illegal taking, the crime committed
is the separate one of theft.67

For the rape with homicide, the lower court correctly imposed the single indivisible penalty of death,
which, under Article 63 of the Revised Penal Code, may be imposed regardless of any mitigating or
aggravating circumstances which may have attended the commission of the crime. However, by reason
of the constitutional prohibition on the imposition of the death penalty, instead of four death penalties,
the appellants shall suffer four penalties of reclusion perpetua. The four penalties for each of the
appellants is ordained by the fact that conspiracy has been established beyond reasonable doubt.68

For the theft of Mercedes' belongings, the total value of the wrist watch (P800) and the money (P100)
determines the penalty imposable on the appellants the ring having been recovered. Under Article
309(3) of the Revised Penal Code, the penalty should be prision correccional in its minimum and medium
periods. Taking into account that no mitigating or aggravating circumstances have been proven, the
penalty should be the medium period of said penalty. Applying the Indeterminate Sentence
Law69 appellants should be meted the indeterminate penalty of four (4) months and one (1) day
of arresto mayor maximum to two (2) years and ten (10) months of prision correccional medium.

The prosecution evidence on the expected income of Mercedes had her life not been snuffed out
needlessly by the appellants as well as the expenses appertaining to her wake and funeral not having
been rebutted by the defense, the Court upholds the lower court's order that appellants should pay
them.

WHEREFORE, the decision of the lower court is hereby affirmed subject to the modifications that four
penalties of reclusion perpetua instead of four death penalties shall be imposed on appellants Alex King
Cruz, Servillano Pariñas and Ernesto Sarsoza for the crime of rape with homicide, and, in addition
thereto, they shall suffer the indeterminate penalty of four (4) months and one (1) day of arresto

770
mayor maximum as minimum to two (2) years and ten (10) months of prision correccional medium as
maximum. Instead of the P30,000 imposed on appellants as indemnity to the heirs of Mercedes Dulay,
they shall pay jointly and severally the amount of P50,000. These penalties shall be served in accordance
with the provisions of the Revised Penal Code.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Davide, Jr., JJ., concur.

G.R. No. 133858 August 12, 2003

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
HERMINIANO SATORRE @ EMIANO SATORRE, Appellant.

DECISION

YNARES-SANTIAGO, J.:

Appellant Herminiano Satorre alias Emiano Satorre was charged with Murder in an information which
reads:

That on or about the 25th day of May, 1997 at 2:00 o’clock dawn, more or less, in Sitio Kamari, Barangay
Calidngan, Municipality of Carcar, Province of Cebu, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, with intent to kill, with the use of .38 paltik revolver and by
means of treachery and evident premeditation, did then and there willfully, unlawfully and feloniously
attack and shoot ROMERO PANTILGAN, hitting the latter at the head which caused his instantaneous
death.

CONTRARY TO LAW.1

On arraignment, appellant pleaded "not guilty". Trial on the merits then ensued.

Gliceria Saraum, wife of the victim Romero Pantilgan, testified that at 2:00 a.m. of May 25, 1997, she
and her two children were asleep inside the house of her parents at Tagaytay, Calidngan, Carcar, Cebu.
Her mother, Florida Saraum, was also in the house. Her husband, Romero, went out to attend a fiesta.
While she was asleep, she was awakened by a gunshot. Gliceria got up and went out to the porch,
where she found her dead husband lying on the ground. Blood oozed out of a gunshot wound on his
head.

Rufino Abayata, a barangay kagawad, testified that around 7:00 a.m. of May 25, 1997, his
fellow barangay kagawad, Pio Alvarado, fetched him from his house and, together, they went to verify a
report regarding a dead person on the porch of the Saraum residence. Upon confirming the incident,
they reported the matter to the Carcar Police. Rufino further narrated that appellant’s father, Abraham
Satorre, informed them that it was appellant who shot Pantilgan. They looked for appellant in the house
of his brother, Felix Satorre, at Dumlog, Talisay, Cebu, but were told that he already left. Nevertheless,
appellant’s brothers, Margarito and Rosalio Satorre, went to Rufino’s house and surrendered the gun
which was allegedly used in killing Pantilgan.

Flavio Gelle narrated that he accompanied appellant and his father, Abraham, to the Barangay Captain
of Can-asohan, Carcar, Cebu where appellant admitted killing Pantilgan. Thereafter, appellant was
detained.

Corroborating Gelle’s story, Cynthia Castañares, Barangay Captain of Can-asuhan, Carcar, Cebu testified
that Abraham Satorre and Gelle brought appellant to her residence where he confessed having killed
Pantilgan. Appellant allegedly informed her that he killed Pantilgan because the latter struck him with a
piece of wood. That same evening, she went to the Carcar Police Station with appellant where she

771
executed an affidavit. She further averred that appellant voluntarily narrated that he killed Pantilgan
with the use of a handgun which he wrestled from his possession.

Dr. Plebia Villanueva, Municipal Health Officer of Carcar, Cebu certified that the cause of Pantilgan’s
death was gunshot wound.2

Bonifacio Ayag, NBI Ballistician, testified that the deformed bullet taken from Pantilgan’s head wound
was fired from the gun surrendered by appellant’s brothers to the Carcar Police.3

Denying the charges against him, appellant claimed that he was asleep inside his house at the time of
the incident. He alleged that Rufino Abayata had a grudge against him because of an incident when he
tied Rufino’s cow to prevent it from eating the corn in his farm. He denied having confessed to the killing
of Pantilgan. He disclaimed ownership over the paltik .38 revolver and stated that he could not even
remember having surrendered a firearm to Castañares.

Abraham Satorre corroborated appellant’s testimony. He denied having accompanied appellant to

Castañares’ house to surrender him.

Appellant’s brother, Rosalio Satorre, claimed that he never accompanied appellant to Castañares’ house
to surrender. His other brother, Felix, also testified that he never surrendered any firearm to anybody.

After trial, the court a quo gave credence to the prosecution’s evidence and rendered a decision
convicting appellant of Murder,4 the dispositive portion of which reads:

WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, accused Herminiano Satorre is found
guilty beyond reasonable doubt of the crime of Murder and is hereby imposed the penalty of
RECLUSION PERPETUA, with accessory penalties of the law; to indemnify the heirs of Romero Pantilgan
in the sum of P50,000.00 and to pay the costs. The accused is, however, credited in full during the whole
period of his detention provided he will signify in writing that he will abide by all the rules and
regulations of the penitentiary.

SO ORDERED.

Appellant interposed this appeal, contending that the trial court erred: (1) in giving full faith and
credence to the testimonies of prosecution witnesses; (2) in proceeding with the trial of the instant case
amounting to lack of due process provided by law due to its denial of accused’s motion for preliminary
investigation or reinvestigation; and (3) in rejecting the testimony of the defense’s witnesses.

The appeal has merit.

In particular, appellant claims that his alleged confession or admission, which was concocted by the
Barangay Captain, is inadmissible in evidence for being hearsay and for being obtained without a
competent and independent counsel of his choice. In effect, the quantum of evidence adduced by the
prosecution was not sufficient to overcome the constitutional presumption of innocence. The bare
allegation that he confessed or admitted killing Romero Pantilgan is not proof of guilt.

Rule 130, Section 26 of the Rules of Court defines an admission as an "act, declaration or omission of a
party as to a relevant fact." A confession, on the other hand, under Section 33 of the same Rule is the
"declaration of an accused acknowledging his guilt of the offense charged, or of any offense necessarily
included therein." Both may be given in evidence against the person admitting or confessing. On the
whole, a confession, as distinguished from an admission, is a declaration made at any time by a person,
voluntarily and without compulsion or inducement, stating or acknowledging that he had committed or
participated in the commission of a crime.5

Evidently, appellant’s alleged declaration owning up to the killing before the Barangay Captain was a
confession. Since the declaration was not put in writing and made out of court, it is an oral extrajudicial
confession.

772
The nexus that connects appellant to the killing was his alleged oral extrajudicial confession given to
Barangay Captain Cynthia Castañares and two barangay kagawads. According to the trial court, their
testimonies were positive and convincing. Appellant’s retraction of his oral extrajudicial confession
should not be given much credence in the assessment of evidence. However, appellant disputes the
admissibility and sufficiency of the testimonial evidence offered to prove the alleged oral extrajudicial
confession.

There is no question as to the admissibility of appellant’s alleged oral extrajudicial confession. Indeed, as
far as admissibility is concerned, Rule 130, Section 33 of the Rules of Court makes no distinction whether
the confession is judicial or extrajudicial.

The rationale for the admissibility of a confession is that if it is made freely and voluntarily, a confession
constitutes evidence of a high order since it is supported by the strong presumption that no sane person
or one of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime,
unless prompted by truth and conscience.6

Accordingly, the basic test for the validity of a confession is – was it voluntarily and freely made. The
term "voluntary" means that the accused speaks of his free will and accord, without inducement of any
kind, and with a full and complete knowledge of the nature and consequences of the confession, and
when the speaking is so free from influences affecting the will of the accused, at the time the confession
was made, that it renders it admissible in evidence against him.7 Plainly, the admissibility of a confession
in evidence hinges on its voluntariness.

The voluntariness of a confession may be inferred from its language such that if, upon its face, the
confession exhibits no suspicious circumstances tending to cast doubt upon its integrity, it being replete
with details – which could only be supplied by the accused – reflecting spontaneity and coherence, it
may be considered voluntary.8 The problem with appraising voluntariness occurs when the confession is
an oral extrajudicial confession because the proof of voluntariness cannot be inferred from the
testimony of a witness who allegedly heard the confessant since there is no written proof that such
confession was voluntarily made. Neither can the confessant be appraised by the court since, precisely,
it was made outside the judicial proceeding. The problem posed therefore by an oral extrajudicial
confession is not only the admissibility of the testimony asserting or certifying that such confession was
indeed made, but more significantly whether it was made voluntarily.

On the question of whether a confession is made voluntarily, the age, character, and circumstances
prevailing at the time it was made must be considered. Much depends upon the situation and
surroundings of the accused. This is the position taken by the courts, whatever the theory of exclusion
of incriminating statements may be. The intelligence of the accused or want of it must also be taken into
account. It must be shown that the defendant realized the import of his act.9

In the case at bar, appellant was a 19-year old farmer who did not even finish first grade. Granting that
he made the confession in the presence of Barangay Captain Castañares, he may not have realized the
full import of his confession and its consequences. This is not to say that he is not capable of making the
confession out of a desire to tell the truth if prompted by his conscience. What we are saying is that due
to the aforesaid personal circumstances of appellant, the voluntariness of his alleged oral confession
may not be definitively appraised and evaluated.

At any rate, an extrajudicial confession forms but a prima facie case against the party by whom it is
made. Such confessions are not conclusive proof of that which they state; it may be proved that they
were uttered in ignorance, or levity, or mistake; and hence, they are, at best, to be regarded as only
cumulative proof which affords but a precarious support and on which, when uncorroborated, a verdict
cannot be permitted to rest.10

Main prosecution witness Castañares testified that after appellant’s alleged oral confession, she brought
the latter to the office of the police at the Municipal Hall of Carcar, Cebu.11 At the police station,
Castañares was investigated, after which she executed her sworn statement.12 Also at the police station,
appellant allegedly admitted before policemen that he killed Pantilgan.13 His statement was not taken
nor was his confession reduced into writing. This circumstance alone casts some doubt on the

773
prosecution’s account that appellant freely and voluntarily confessed killing Pantilgan. It raises questions
not only as to the voluntariness of the alleged confession, but also on whether appellant indeed made
an oral confession.

To be sure, a confession is not required to be in any particular form. It may be oral or written, formal or
informal in character. It may be recorded on video tape, sound motion pictures, or tape.14 However,
while not required to be in writing to be admissible in evidence, it is advisable, if not otherwise recorded
by video tape or other means, to reduce the confession to writing. This adds weight to the confession
and helps convince the court that it was freely and voluntarily made. If possible the confession, after
being reduced to writing, should be read to the defendant, have it read by defendant, have him sign it,
and have it attested by witnesses.15

The trial court gave credence to appellant’s oral extrajudicial confession relying on jurisprudence which
we find are not applicable. In the cases cited by the trial court,16 the convictions were based on
circumstantial evidence in addition to the appellants’ confessions, or the extrajudicial confessions were
reduced to writing and were replete with details which only appellants could have supplied. In the case
at bar, however, there was no circumstantial evidence to corroborate the extrajudicial confession of
appellant. More importantly, the said confession does not contain details which could have only been
known to appellant.

Furthermore, the events alleged in the confession are inconsistent with the physical evidence. According
to Barangay Captain Castañares, appellant narrated to her that during the struggle between him and the
deceased, he fell to the ground after the latter hit him on the head with a piece of wood. In the autopsy
report, however, Dr. Plebia Villanueva found that the entrance wound on the deceased was located at
the top of the head or the crown, indicating that the victim was probably lying down when he was
shot.17

Indeed, an extrajudicial confession will not support a conviction where it is uncorroborated. There must
be such corroboration that, when considered in connection with confession, will show the guilt of
accused beyond a reasonable doubt. Circumstantial evidence may be sufficient corroboration of a
confession. It is not necessary that the supplementary evidence be entirely free from variance with the
extrajudicial confession, or that it show the place of offense or the defendant’s identity or criminal
agency. All facts and circumstances attending the particular offense charged are admissible to
corroborate extrajudicial confession.18

Nonetheless, the fatal gun and the slug extracted from Pantilgan’s brain can not be considered as
corroborative evidence. While the slug embedded in Pantilgan’s brain came from the fatal gun, the
prosecution was not able to conclusively establish the ownership of the gun other than the bare
testimony of prosecution witnesses that appellant’s brothers surrendered the gun to them. This was
denied by appellant and his brothers and there was no other proof linking the gun to him.1âwphi1

On the whole, it appears that the trial court simply based appellant’s conviction on the testimonial
evidence of prosecution witnesses that appellant orally owned up to the killing. We cannot affirm
appellant’s conviction on mere testimonial evidence, considering that the voluntariness of said
confession cannot be conclusively established because of appellant’s personal circumstances and the
failure of the police to reduce the alleged oral confession into writing. The doubts surrounding the
alleged oral confession, the conduct of the investigation as well as the inapplicable jurisprudential
precedents cited by the trial court do not lead to the same moral certainty of appellant’s guilt.

To conclude, it must be stressed that in our criminal justice system, the overriding consideration is not
whether the court doubts the innocence of the accused, but whether it entertains a reasonable doubt as
to their guilt. Where there is no moral certainty as to their guilt, they must be acquitted even though
their innocence may be questionable. The constitutional right to be presumed innocent until proven
guilty can be overthrown only by proof beyond reasonable doubt.19 In fact, unless the prosecution
discharges the burden of proving the guilt of the accused beyond reasonable doubt, the latter need not
even offer evidence in his behalf.20

774
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 18, Cebu City,
convicting appellant Herminiano Satorre alias Emiano Satorre of Murder and sentencing him to suffer
the penalty of reclusion perpetua and to indemnify the heirs in the amount of P50,000.00 as well as
costs, is REVERSED and SET ASIDE. For lack of evidence to establish guilt beyond reasonable doubt,
appellant Herminiano Satorre alias Emiano Satorre is ACQUITTED and is ordered immediately RELEASED
from confinement, unless he is lawfully held in custody for another cause.

SO ORDERED.

Vitug, Carpio, and Azcuna, JJ., concur.

Davide, Jr., C.J., (Chairman), dissent, guilt of the appellant was proved beyond reasonable doubt.

G.R. No. 144293. December 4, 2002

JOSUE R. LADIANA, Petitioner, vs. PEOPLE OF THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

The Constitution bars the admission in evidence of any statement extracted by the police from the
accused without the assistance of competent and independent counsel during a custodial investigation.
However, a counter-affidavit voluntarily presented by the accused during the preliminary investigation,
even if made without the assistance of counsel, may be used as evidence against the affiant.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the April 10, 2000
Decision1 and August 4, 2000 Resolution2 of the Sandiganbayan (First Division) in Criminal Case No.
16988. The dispositive portion of the assailed Decision reads as follows:

WHEREFORE, judgment is hereby rendered finding accused JOSUE R. LADIANA GUILTY beyond
reasonable doubt of the crime of homicide and, in the absence of any modifying circumstance,
sentencing the said accused to: (a) suffer an indeterminate sentence of imprisonment of ten (10) years
of prision mayor, as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as
maximum[;] (b) suffer all the appropriate accessory penalties consequent thereto; (c) indemnify the
heirs of the victim, Francisco San Juan, in the total amount of Fifty Six Thousand Five Hundred Pesos
(P56,500.00); and (d) pay the costs.3cräläwvirtualibräry

The assailed Resolution denied petitioners Motion for Reconsideration.

Petitioner was originally charged with murder before the Sandiganbayan in an Information4 dated
August 5, 1991. However, the anti-graft court issued an Order5 dated October 14, 1991, noting that
besides the allegation that the crime was allegedly committed by the accused while he was taking
advantage of his official position, nothing else is in the Information to indicate this fact so that, as the
Information stands, nothing except a conclusion of fact exists to vest jurisdiction [in] this Court over the
accused and over the crime for which he is charged.

Further, the Order gave the government sufficient time to amend the Information to show adequate
facts to vest the Sandiganbayan with jurisdiction over the case. Subsequently, an Amended
Information,6 still charging petitioner with murder, was filed on April 1, 1992. The accusatory portion
reads as follows:

That on or about the 29th day of December 1989, in the Municipality of Lumban, Laguna, Philippines, and
within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then a
member of the Integrated National Police (INP now PNP) assigned at the Lumban Police Station, Lumban,
Laguna, acting in relation to his duty which is primarily to enforce peace and order within his jurisdiction,
taking advantage of his official position confronted Francisco San Juan why the latter was removing the

775
steel pipes which were previously placed to serve as barricade to prevent the entry of vehicles along P.
Jacinto Street, Barangay Salac, Lumban, Laguna, purposely to insure the safety of persons passing along
the said street and when Francisco San Juan told the accused that the latter has no business in stopping
him, said accused who was armed with a firearm, with intent to kill and with treachery, did then and
there willfully, unlawfully and feloniously attack and sho[o]t Francisco San Juan with the firearm hitting
Francisco San Juan at his head and neck inflicting upon him fatal wounds thereby causing the death of
Francisco San Juan.7cräläwvirtualibräry

During his arraignment on May 8, 1992, Petitioner, assisted by his counsel de parte,8 pled not
guilty.9 After due trial, the Sandiganbayan found him guilty of homicide, not murder.

The Facts

In their Memoranda, both the prosecution and the defense substantially relied upon the
Sandiganbayans narration of the facts as follows:

The prosecution presented five (5) witnesses, namely: Caridad M. San Juan, PO2 Leopoldo Cacalda, Dr.
Rogelio M. Javan, SPO2 Percival A. Gabinete, and Maria T. Cortez. Their respective testimonies, in
essence are as follows, to wit:

1. CARIDAD MARGALLO SAN JUAN (hereinafter, Caridad) declared that she is the wife of Francisco San
Juan (hereinafter Francisco), the victim in the case at bar. Caridad testified that Francisco was the
Barangay Captain of Barangay Salac, Lumban, Laguna, until he was shot and killed by accused Ladiana,
who happens to be also a distant relative of the decedent.

Caridad recounted that, on December 29, 1989, she was in her house when an unidentified woman
came and told her that her husband was killed by accused Ladiana. She immediately called up her sister-
in-law before rushing to Jacinto Street where the gruesome incident allegedly transpired. Thereat, many
people were milling around, and Caridad saw the lifeless body of Francisco lying in the middle of the
road and being examined by [SPO2] Percival A. Gabinete.

Caridad recalled that it was around 11:00 oclock a.m. when she reached the place of the subject incident.
At that point in time, she was not even allowed by the police to touch, much less get near to, the
cadaver of Francisco. Caridad, expectedly, was crying and one of her aunts advised her to go home.

Caridad maintained that she was aware that her husband was killed by accused Ladiana because this
was what the woman actually told her. Moreover, accused Ladiana had given himself up to the police
authorities.

Caridad went on to narrate that, on December 30, 1989, she was at the police station, where she gave
her written statement before police investigator PFC Virgilio Halili (hereinafter, Halili).

Additionally, Caridad presented the Death Certificate of her husband and testified that he was
eventually buried at the Lumban Cemetery. She declared that she had incurred about Twenty Thousand
Pesos (P20,000.00) for the funeral, burial and other incidental expenses by reason of the death of
Francisco.

On cross-examination, Caridad testified that, on December 29, 1989, she was in her house and that she
did not hear any gunshot between 10:30 and 11:00 oclock a.m. Caridad also admitted she did not
witness the killing of her husband.

On questions propounded by the Court, Caridad narrated that her husband suffered two gunshot
wounds - one on the upper right temple and the other on the left cheek. However, Caridad stated that
she was told that the wounds were the entry and the exit points. She also told the Court that her
husband was wearing short pants at the time of his death and that she found some bruises on his knees.

Finally, Caridad recalled that, on the date of the incident, her husband was with his close friend, a
certain Rodolfo Cabrera, and some other persons, and that they went to Jacinto Street to repair the

776
steel humps which were used to block the street during school days for the protection and safety of the
school children.

2. PO2 LEOPOLDO DE RAMOS CACALDA, JR. (hereinafter, CACALDA) declared that he is a policeman
assigned at the Lumban Police Station in Lumban, Laguna. He has been designated as the radio operator
of the station since 1989.

Cacalda recounted that, on December 29, 1989, at around 11:00 oclock a.m., somebody, whose name
he could no longer recall, reported to him about an existing trouble along Jacinto Street in Barangay
Salac Cacalda responded by going to the scene, where he was accompanied by Alberto Mercado, a
member of the CAGFIL. Thereat, Cacalda saw the lifeless body of Francisco lying face up on the road.
Cacalda did not examine the body of Francisco. He left the place of the incident when [SPO2] Percival A.
Gabinete and other policemen subsequently arrived.

Cacalda had gathered from the people milling around the body of Francisco that it was accused Ladiana
who shot and killed Francisco. Cacalda immediately left to look for accused Ladiana. However, he
eventually saw accused Ladiana already inside the jail of the police station and thereafter learned that
said accused had surrendered to the police authority.

Cacalda recalled that he was later on investigated by Halili because he was the responding policeman
who went to the scene of the incident. Consequently, Cacalda executed a written statement in relation
to the subject incident.

On cross-examination, Cacalda testified that he was a radio operator and not an investigator of the
police station. He also testified that he did not witness the incident subject matter of the case at bar.

Cacalda went on to testify that the people milling around the place of the incident told him that accused
Ladiana had already left. Because of this development, Cacalda proceeded to accused Ladianaa house
but was told that he had already gone to the police station. Cacalda accordingly went to the police
station where he saw accused Ladiana already locked inside the jail. He also saw a stab wound on
accused Ladianas right bicep but he did not anymore ask him how he sustained the said injury.

3. DR. ROGELIO JAVAN y MAGRACIA (hereinafter, Javan) declared that he is a physician and the
Municipal Health Officer of Lumban, Laguna.

Javan recounted that he was the one who performed the necropsy on the cadaver of Francisco and that
he had prepared the corresponding reports and/or documents relating thereto. Javan made a sketch
representing the anterior and posterior views of the body of Francisco, and labeled and placed red
markings on the gunshot wounds found on the said cadaver. The marking Gunshot wound A is the point
of entry, which is one (1) centimeter in diameter and situated two (2) inches behind the left ear. The
marking Gunshot wound B is the point of exit of Gunshot wound A, which is two (2) centimeters in
diameter and found above the right cheekbone and one (1) inch below the right eye. Javan also testified
that there is another gunshot wound and the point of entry and exit are labeled as Gunshot wound C
and Gunshot wound D, respectively. Gunshot wound D is one and one-half (1-1/2) centimeters in
diameter and located at the left cheek, three and one-half (3-1/2) centimeters below the left eye, while
Gunshot wound C is one (1) centimeter in diameter and found at the right lateral aspect of the neck, at
the level of the adams apple.

According to Javan, the assailant must be behind the victim when he inflicted Gunshot wound A. As
regards Gunshot wound C, the assailant likewise must be behind the victim, at a distance of more than
twenty-four (24) inches away.

Lastly, Javan testified that he was not able to retrieve any bullet during the examination. However,
judging from the size of the wound and the point of entry, Javan opined that the firearm used was
probably a caliber 38.

On questions propounded by the Court, Javan testified that Gunshot wound A could have been fired first
because the trajectory is on the same level so much so that the assailant and the victim could have been

777
both standing. Javan inferred that Gunshot wound C could have been inflicted while the victim was
already falling down. Javan then stressed that both wounds are fatal in nature.

4. SPO2 PERCIVAL AMBROSIO GABINETE (hereinafter, Gabinete) declared that he is a police officer and a
resident of No. 4055 Villa Josefina Subdivision, Sta. Cruz, Laguna.

The testimony of Gabinete was subsequently dispensed with, upon the admission of the defense that he
was part of the group of policemen who proceeded to the place of the subject incident and that he
found the body of Francisco lying along the road. Additionally, the defense admitted the existence of the
receipt issued by Funeraria de Mesa dated January 3, 1990 in the sum of Six Thousand Five Hundred
Pesos (P6,500.00).

5. MARIO TALAVERA CORTEZ (hereinafter, Cortez) declared that he is a retired Assistant Prosecutor of
Laguna.

Prior to the conduct of the examination-in-chief on Cortez, the defense counsel made an admission as to
the authorship, authenticity, and voluntariness of the execution of the counter-affidavit of accused
Ladiana, which was subscribed and sworn to before Cortez. In said counter-affidavit, accused Ladiana
allegedly admitted to making the fatal shots on Francisco. However, accused Ladiana allegedly did so in
self-defense as Francisco was then purportedly attacking accused Ladiana and had, in fact, already
inflicted a stab wound on the arm of accused Ladiana.

However, Cortez emphasized that he was not the one who conducted the preliminary investigation of
the complaint which led to the filing of the subject case. Additionally, Cortez testified that he would not
be able to anymore recognize the face of the affiant in the said counter-affidavit, but maintained that
there was a person who appeared and identified himself as Josue Ladiana before he affixed his signature
on the counter-affidavit.

After the presentation of Cortez, the prosecution filed its formal offer of evidence and rested its case.

On May 31, 1995, this Court issued a resolution admitting all the documentary evidence submitted by
the prosecution.

On August 20, 1996, accused Ladiana filed a Motion for Leave of Court to File Demurrer to Evidence
dated August 16, 1995, claiming that: (i) a review of the documentary and testimonial evidence adduced
by the prosecution allegedly failed to show that the accused is guilty of the offense charged; (ii) at best,
the evidence submitted by the prosecution are allegedly hearsay in character, considering that the
supposed eyewitness in the person of Rodolfo Cabrera was never presented in court; and (iii) the
prosecution was allegedly merely able to prove the fact of death of the victim, but not the identity of
the person who caused said death.

On August 23, 1996, this Court issued an Order of even date holding that the filing of a demurrer to
evidence is no longer appropriate considering that accused Ladiana received a copy of this Courts
resolution dated May 31, 1995 on the admission of the prosecutions documentary exhibits as early as
May 25, 1995.

On September 2, 1996, in view of his perception that the evidence submitted by the prosecution is
allegedly inadequate to sustain a conviction, accused Ladiana, through counsel, waived his right to
present controverting evidence. Instead, he asked for time to file a written memorandum. Thus, both
parties were given time within which to do so, after which the case shall be deemed submitted for
resolution.

Thereafter, this Court received on October 25, 1996 by mail the Memorandum for the defense. As for
the prosecution, it opted not to file any.10 (Citations omitted)

Ruling of the Sandiganbayan

778
The Sandiganbayan ruled that the prosecution had been able to establish the guilt of petitioner beyond
reasonable doubt. The court a quo held that his Counter-Affidavit,11 in which he had admitted to having
fired the fatal shots that caused the victims death,12 may be used as evidence against him. It
underscored the admission made by the defense as to the authorship, the authenticity and the
voluntariness of the execution of the Counter-Affidavit.13 In short, it ruled that the document had
sufficiently established his responsibility for the death of the victim. However, it found no evidence of
treachery; thus, it convicted him of homicide only.14cräläwvirtualibräry

Hence, this Petition.15

Issues

In his Memorandum, petitioner raises the following issues for this Courts consideration:

I. Whether or not the Sandiganbayan may convict the accused-petitioner beyond reasonable doubt of
the crime of homicide even in the absence of any eyewitness who personally saw the sho[o]ting of the
victim by the accused, basing it only on the testimony of the prosecutor who had administered the oath
on the Counter-affidavit filed by petitioner-accused.

II. Whether or not the prosecution has presented proof beyond reasonable doubt to overcome the
constitutional presumption of innocence of the accused and his right against self-incrimination on the
basis of the Counter-affidavit whose execution was admitted by the counsel of the petitioner, but not by
the accused personally.

III. Whether or not the Counter-affidavit of the accused-petitioner which was considered by the
Sandiganbayan in its decision as similar to an extrajudicial confession may [be] admitted against him as
evidenc[e] of guilt beyond reasonable doubt even if he was not assi[s]ted then by counsel and while he
was under custodial investigation.

IV. Whether or not the Sandiganbayan is constitutionally and legally correct in issuing the Order of
August 23, 1996 denying the Motion for Leave of Court to File Demurrer to Evidence dated August 16,
1995 filed by the accused in accordance with Sec. 15 of Rule 120 of the 1985 Rules on Criminal
Procedure in relation to Rule XXI of the Revised Rules of Sandiganbayan.

V. Whether or not accused is entitled to the mitigating circumstance of voluntary surrender which fact
was admitted by the prosecution as it even used the same as proof of the guilt of the
accused.16cräläwvirtualibräry

In short, petitioner raises the following questions in this appeal: (1) whether the Counter-Affidavit he
executed during the preliminary investigation of this case is admissible proof showing his complicity in
the crime, (2) whether the Sandiganbayan erred in denying his Motion for Leave to File a Demurrer to
Evidence, and (3) whether he is entitled to the mitigating circumstance of voluntary surrender.

This Courts Ruling

The Petition is not meritorious.

First Issue:

Admissibility of Counter-Affidavit

Undeniably, the resolution of this case hinges mainly on the admissibility of the Counter-
Affidavit17 submitted by petitioner during the preliminary investigation. He argues that no counsel was
present when the Affidavit was executed. In support of his argument, he cites the Constitution thus:

SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of his

779
own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.

xxx

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.18cräläwvirtualibräry

It is well-settled that the foregoing legal formalities required by the fundamental law of the land apply
only to extra-judicial confessions or admissions obtained during custodial investigations.19 Indeed, the
rights enumerated in the constitutional provision exist only in custodial interrogations, or in-custody
interrogation of accused persons.20cräläwvirtualibräry

Custodial interrogation is the questioning initiated by law enforcement officers after a person has been
taken into custody or otherwise deprived of his freedom of action in any significant
way.21cräläwvirtualibräry

In the present case, petitioner admits that the questioned statements were made during the preliminary
investigation, not during the custodial investigation. However, he argues that the right to competent
and independent counsel also applies during preliminary investigations.

We disagree. A preliminary investigation is an inquiry or a proceeding to determine whether there is

sufficient ground to engender a well-founded belief that a crime has been committed, and that the
respondent is probably guilty thereof and should be held for trial.22cräläwvirtualibräry

Evidently, a person undergoing preliminary investigation before the public prosecutor cannot be
considered as being under custodial investigation. In fact, this Court has unequivocally declared that a
defendant on trial or under preliminary investigation is not under custodial interrogation.23 It explained
as follows:

His [accused] interrogation by the police, if any there had been would already have been ended at the
time of the filing of the criminal case in court (or the public prosecutors office). Hence, with respect to a
defendant in a criminal case already pending in court (or the public prosecutors office), there is no
occasion to speak of his right while under custodial interrogation laid down by the second and
subsequent sentences of Section 20, Article IV of the 1973 Constitution [now Section 12, Article III of the
1987 Constitution], for the obvious reason that he is no longer under custodial
interrogation.24cräläwvirtualibräry

There is no question that even in the absence of counsel, the admissions made by petitioner in his
Counter-Affidavit are not violative of his constitutional rights. It is clear from the undisputed facts that it
was not exacted by the police while he was under custody or interrogation. Hence, the constitutional
rights of a person under custodial investigation as embodied in Article III, Section 12 of the 1987
Constitution, are not at issue in this case.

However, the accused -- whether in court or undergoing preliminary investigation before the public
prosecutor -- unquestionably possess rights that must be safeguarded. These include: 1) the right to
refuse to be made witnesses; 2) the right not to have any prejudice whatsoever imputed to them by
such refusal; 3) the right to testify on their own behalf, subject to cross-examination by the prosecution;
and 4) while testifying, the right to refuse to answer a specific question that tends to incriminate them
for some crime other than that for which they are being prosecuted.25cräläwvirtualibräry

We do not, however, agree with the Sandiganbayans characterization of petitioners Counter-Affidavit as

an extrajudicial confession. It is only an admission. Sections 26 and 33 of Rule 130 of the Revised Rules
on Evidence distinguish one from the other as follows:

SEC. 26. Admissions of a party. The act, declaration or omission of a party as to a relevant fact may be
given in evidence against him.

780
SEC. 33. Confession. The declaration of an accused acknowledging his guilt of the offense charged, or of
any offense necessarily included therein, may be given in evidence against him.

In a confession, there is an acknowledgment of guilt; in an admission, there is merely a statement of fact

not directly involving an acknowledgment of guilt or of the criminal intent to commit the offense with
which one is charged.26 Thus, in the case at bar, a statement by the accused admitting the commission
of the act charged against him but denying that it was done with criminal intent is an admission, not a
confession.27cräläwvirtualibräry

The Counter-Affidavit in question contains an admission that petitioner actually shot the victim when
the latter was attacking him. We quote the pertinent portion:

[K]aya itong si Kapitan San Juan ay sumugod at hinawakan ako sa may leeg ng aking suot na T-shirt
upang ako ay muling saksakin; sa dahilang hindi ako makatakbo o makaiwas sa kabila ng aking pananalag
hanggang magpaputok ako ng pasumala sa kanya; sa bilis ng pangyayari ay hindi ko alam na siya ay
tinamaan;28cräläwvirtualibräry

Through the above statement, petitioner admits shooting the victim -- which eventually led to the
latters death -- but denies having done it with any criminal intent. In fact, he claims he did it in self-
defense. Nevertheless, whether categorized as a confession or as an admission, it is admissible in
evidence against him.

Further, we do not doubt the voluntariness of the Counter-Affidavit. Petitioner himself submitted it to
the public prosecutor to justify his actions in relation to the charges hurled against him. It escapes this
Court how he can cavalierly deny a document that he has voluntarily submitted and originally relied
upon in his defense.

In general, admissions may be rebutted by confessing their untruth or by showing they were made by
mistake. The party may also establish that the response that formed the admission was made in a
jocular, not a serious, manner; or that the admission was made in ignorance of the true state of
facts.29 Yet, petitioner never offered any rationalization why such admissions had been made, thus,
leaving them unrebutted. In addition, admissions made under oath, as in the case at bar, are evidence of
great weight against the declarant. They throw on him the burden of showing a
mistake.30cräläwvirtualibräry

Petitioner contends that nowhere in the transcripts of this case can it be found that he has admitted to
the authorship, the authenticity or the voluntariness of the Counter-Affidavit. We quote verbatim the
proceedings in the Sandiganbayan:

PJ GARCHITORENA

Well, he will identify the person who took the oath before him. Will you deny that it was your client who
took the oath before the Fiscal at the preliminary investigation?

ATTY. ILAGAN

We will admit that, your Honor.

PJ GARCHITORENA

So in that case we will have no question about the authorship, authenticity and the voluntariness of the
execution of the counter-affidavit dated July 31, 1990? Companiero?

ATTY ILAGAN

Admitted, your Honor.31cräläwvirtualibräry

781
The admissions of petitioner made through his counsel cannot be any clearer. To be sure, the unbroken
stream of judicial dicta is that, in the conduct of their case, clients are bound by the actions of their
counsels, save when the latters negligence is so gross, reckless and inexcusable that the former are
deprived of their day in court.32 Also, clients, being bound by the actions of their counsels, cannot
complain that the result of the litigation might have been different had their lawyers proceeded
differently.33 A counsel may err as to the competency of witnesses, the sufficiency and the relevance of
evidence, the proper defense, the burden of proof, the introduction or the withholding of witnesses or
pieces of evidence, or the manner of arguing the case. This Court, however, has ruled several times that
those are not even proper grounds for a new trial, unless the counsels incompetence is so gross that the
clients are prevented from fairly presenting their case.34cräläwvirtualibräry

Having admitted that he had fatally shot the victim, petitioner had the duty of showing that the killing
was justified, and that the latter incurred no criminal liability therefor.35 Petitioner should have relied on
the strength of his own evidence and not on the weakness of that for the prosecution. Even if his
evidence be weak, it cannot be disbelieved after the accused has admitted the
killing.36cräläwvirtualibräry

Petitioner argues that it was the prosecution that indirectly raised the issue of self-defense. Hence, he
could not be bound by it. This argument deserves scant consideration. As discussed earlier, the
declarations contained in his Counter-Affidavit are admissions that may be used as evidence against
him.37 The Sandiganbayan did not unfairly presume that he had indeed raised the theory of self-defense,
because this argument had already been laid out in his Counter-Affidavit. No presumption was
necessary, because the admission was clear and unequivocal.

Neither do we believe petitioners claim that the anti-graft court miserably failed to give equal effect or
treatment to all the allegations found therein (Counter-Affidavit) choosing deliberately and without
reasonable basis the parts which are incriminating in character, and ignoring without sufficient legal
basis the exculpatory assertions of the accused.38cräläwvirtualibräry

The unsubstantiated and uncorroborated statements of petitioner in his Counter-Affidavit are utterly
insufficient to discharge his burden of proving that the act of killing was justified. It is hornbook doctrine
that self-defense must be proved with certainty by sufficient, satisfactory and convincing evidence that
excludes any vestige of criminal aggression on the part of the person invoking it.39 It cannot be
entertained if it is uncorroborated by any separate and competent evidence, and it is also
doubtful.40 The question whether the accused acted in self-defense is essentially a question of fact
properly evaluated by the lower court; in this case, the Sandiganbayan.41cräläwvirtualibräry

By itself, the Counter-Affidavit miserably fails to establish the requisites of self-defense enumerated in
the law.42 Had petitioner been more vigilant in protecting his rights, he could have presented clear and
cogent evidence to prove those elements. But, as found by the court a quo, he not only failed to
discharge the burden of proving the existence of the justifying circumstance of self-defense; he did not
even bother to present any evidence at all.43 So, we do not see how the Sandiganbayan could have been
selective in its treatment of his Counter-Affidavit.

Verily, if the accused fails to discharge the burden of proving the existence of self-defense or of any
other circumstance that eliminates criminal liability, his conviction shall of necessity follow, on the basis
of his admission of the killing.44 Upholding this principle does not in any way violate his right to be
presumed innocent until proven guilty. When he admitted to having killed the victim, the burden of
proving his innocence fell on him. It became his duty to establish by clear and convincing evidence the
lawful justification for the killing.

Therefore, petitioner can no longer invoke his constitutional right to be presumed innocent of the crime
charged.45 As far as he is concerned, homicide has already been established. The fact of death and its
cause were established by his admissions coupled with the other prosecution evidence including the
Certificate of Death,46 the Certificate of Post-Mortem Examination47 and the Medico-Legal
Findings.48 The intent to kill is likewise presumed from the fact of death.49

Second Issue:

782
Denial of Motion for Leave to File Demurrer

Petitioner then argues that the Sandiganbayan erred in not giving due course to his Motion for Leave to
File Demurrer to Evidence. He brands this denial as legally and constitutionally
wrong.50cräläwvirtualibräry

We disagree. Prior leave to file a demurrer to evidence is discretionary upon the trial court.51 And,
unless there is grave abuse amounting to lack or excess of jurisdiction in its denial, the trial courts
resolution may not be disturbed.52

Final Issue:

Voluntary Surrender

After vigorously arguing against his own Counter-Affidavit, Petitioner, in a surprising change of tenor,
implores this Court to consider his voluntary surrender to the police authorities as a mitigating
circumstance. He argues that two of the prosecution witnesses testified that he had surrendered to the
police authorities after the shooting incident.53 To buttress his argument, he contends that the main
reason for his voluntary surrender is that he sincerely believe[d] that he was legally justified in
defending himself as a policeman when he fought the victim after he was attacked by the latter.54 It
goes without saying that this statement only reaffirms the admissions contained in his Counter-Affidavit,
which he so vehemently tried to discredit.

For voluntary surrender to mitigate criminal liability, the following elements must concur: 1) the
offender has not been actually arrested, 2) the offender surrenders himself to a person in authority or to
the latters agent, and 3) the surrender is voluntary.55 To be sufficient, the surrender must be
spontaneous and made in a manner clearly indicating the intent of the accused to surrender
unconditionally, either because they acknowledge their guilt or wish to save the authorities the trouble
and the expense that will necessarily be incurred in searching for and capturing
them.56cräläwvirtualibräry

The only pieces of evidence in support of the plea of voluntary surrender made by petitioner are
statements made by two (2) prosecution witnesses that they were allegedly told by other people that he
had already gone to the police station. There is no showing that he was not actually arrested; or that
when he went to the police station, he surrendered himself to a person in authority. Neither is there any
finding that he has evinced a desire to own to any complicity in the killing.

We have ruled in the past that the accused who had gone to the police headquarters merely to report
the shooting incident did not evince any desire to admit responsibility for the killing. Thus, he could not
be deemed to have voluntarily surrendered.57 In the absence of sufficient and convincing proof showing
the existence of indispensable circumstances, we cannot appreciate voluntary surrender to mitigate
petitioners penalty.

WHEREFORE, the Petition is DENIED and the assailed Decision and Resolution AFFIRMED. Costs against
petitioner.

SO ORDERE

[G.R. Nos. 100225-26. May 11, 1993.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAUL SANTOS y NARCISO, MARIO MORALES y

BACANI, PETER DOE and RICHARD DOE, Accused, RAUL SANTOS y NARCISO, Accused-Appellant.

The Solicitor General for Plaintiff-Appellee.

Valmonte Law Offices for Accused-Appellant.

783
SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY; FINDINGS OF FACT OF THE TRIAL COURT, UPHELD ON
APPEAL; CASE AT BAR. — The trial court concluded that Bohol had ample opportunity actually to
observe the events on which he testified, and we find no basis for overturning this conclusion of the trial
court. Once more, the trial court was led by circumstances to conclude that Bautista had adequate
opportunity to see appellant Santos and to retain his face in his memory. We find no basis for rejecting
this factual conclusion of the trial court.

2. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO COUNSEL; MAY NOT BE INVOKED IN A POLICE LINE-
UP. — In Gamboa v. Cruz, (162 SCRA 643 [1988]) the Court said that there is "no real need to afford a
suspect the service of counsel at police line-up," a declaration reiterated in People v. Loveria.

3. REMEDIAL LAW; EVIDENCE; CREDIBILITY; IDENTIFICATION IN A POLICE LINE-UP; PHRASE "IYAN PO,"
NOT AN IMPROPER SUGGESTION. — We are not convinced that the phrase "iyan po" constituted an
"improper suggestion," certainly not in the context of a situation where, as here, appellant Santos was
identified successively by Bautista and Bohol from a group of persons. We consider that the phrase "iyan
po" is too cryptic. What this Court warned against in People v. Acosta, i.e., against an identification
process that was "pointedly suggestive, or generated confidence when there was none, activated visual
imagination, and all told, subverted [a person’s] reliability as [an] eye-witness [..]," has not been
successfully shown in the case at bar.

4. ID.; ID.; ID.; MINOR INCONSISTENCIES TEND TO STRENGTHEN RATHER THAN WEAKEN CREDIBILITY. —
Minor inconsistencies in the testimony of a witness tend to strengthen rather than to weaken the
credibility of the witness as they erase any suspicion of rehearsed testimony.

5. ID.; ID.; HEARSAY EVIDENCE; WAIVED BY FAILURE TO SEASONABLY OBJECT TO ADMISSION OF THE
AFFIDAVIT. — Appellant Santos now complaints that the affidavit of Ronaldo Guerrero was hearsay
evidence, considering that the prosecution did not present Ronaldo Guerrero as a witness during the
trial. We consider that the trial court did not commit reversible error in admitting the Guerrero affidavit
for the limited purpose for proving knowledge or plan or scheme, and more specifically, that appellant
knew that the particular corner of two (2) particular streets in Malabon was a good place to ambush a
vehicle and its passengers. Appellant also had waived the hearsay character of this evidence by failure
seasonably to object to the admission of the affidavit; it is too late in that day to raise the hearsay rule in
the appellant’s memorandum after prosecution and defense had presented their respective cases and
had made their respective offers of evidence.

6. ID.; ID.; CREDIBILITY; ALIBI; WILL NOT PREVAIL OVER POSITIVE IDENTIFICATION. — A defense of alibi,
the Court has, times beyond numbering, ruled that such defense is weak most especially when
established exclusively or mainly by the accused himself and his relatives and not by independent and
credible persons, and that such a defense will not prevail over the positive identification made by
credible witnesses, especially where the witness is the victim-complainant himself.

7. CIVIL LAW; DAMAGES FOR DEATH RAISED TO P50,000.00. — The civil indemnity payable to the heirs
of Glicerio Cupcupin shall be INCREASED to P50,000.00.

DECISION

FELICIANO, J.:

Raul N. Santos appeals from a judgment of the trial court convicting him of murder and frustrated
murder.

On 26 October 1989, appellant Santos was charged with the crimes of murder with the use of unlicensed

784
firearms and frustrated murder, under the following informations:jgc:chanrobles.com.ph

"In Crim. Case No. 8517-MN: 1

That on or about the 26th day of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating together and mutually helping
with one another, without any justifiable cause, with deliberate intent to kill, treachery and evident
premeditation, did then and there willfully, unlawfully and feloniously shoot GLICERIO CUPCUPIN y
REYES with the use of unlicensed firearms of unknown caliber, thereby inflicting upon the latter serious
physical injuries which caused his death at the Tondo Medical Center, Manila.

Contrary to Law."cralaw virtua1aw library

"In Crim. Case No. 8518-MN: 2

That on or about the 26th of May, 1989 in Navotas, Metro Manila and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together and mutually helping with one another,
without any justifiable cause, with deliberate intent to kill, treachery and evident premeditation did,
then and there, willfully, unlawfully and feloniously shoot ALBERTO BAUTISTA Y CAYETANO, with the use
of firearms of unknown caliber, thereby inflicting upon the latter serious physical injuries, thus
performing all the acts of execution which would have produced the crime of MURDER as a
consequence but which nevertheless did not produce it by reason of causes independent of the will of
the herein accused, that is due to the timely, able and efficient medical attendance rendered to the
victim at the Tondo Medical Center, Manila.

Contrary to Law."cralaw virtua1aw library

Three (3) other persons were charged in the same informations. Upon request of the City Prosecutor
who had conducted a re-investigation of the cases, the trial court ordered the amendment of the
informations on 4 April 1990 so as to insert the name of one Mario Morales, in lieu of John Doe, as a co-
accused. Morales for whom a warrant of arrest was issued, is, however, still at large. The identities of
the two (2) other accused remain unknown.

At arraignment, Raul Santos entered a plea of not guilty. A joint trial of the two (2) criminal cases ensued,
culminating in a judgment of conviction. The dispositive portion of this judgment reads as
follows:chanrobles law library

"WHEREFORE, premises considered, judgment is hereby rendered finding accused Raul Santos guilty
beyond reasonable doubt of the offenses charged against him in these cases. He is accordingly
sentenced to two (2) prison terms as follows:chanrob1es virtual 1aw library

1) In Crim. Case No. 8517-MN for Murder, to life imprisonment, the death penalty which should have
been imposed in this case having been abolished under the present Constitution;

2) In Crim. Case No. 8518-MN for Frustrated Murder, to a prison term ranging from SIX (6) YEARS of
prision correccional, as minimum to TWELVE (12) YEARS of prision mayor as maximum.

Accused Santos is also ordered to proportionately pay the heirs of Glicerio Cupcupin the sum of
P30,000.00 for the loss of the latter’s life and to pay said heirs, proportionately also, P100,000.00 by way
of indemnification for the expenses incurred in connection with Cupcupin’s death.

Costs against accused in both cases.

SO ORDERED." 3

The relevant facts as found by the trial court are the following:jgc:chanrobles.com.ph

"Glicerio Cupcupin and Alberto Bautista were riding on a jeep driven by the former on May 26, 1989. At

785
around 11:45 o’clock in the morning of said date, the jeep was at a stop at the corner of Estrella and
Yangco Streets in Navotas, Metro Manila and was about to make a right turn when two (2) persons
armed with short guns approached the jeep and fired at Cupcupin and Bautista. Cupcupin was hit
several times in different parts of his body and he died as a result of the multiple gunshot wounds he
sustained (Exh. V). Bautista sustained gunshot wounds, one at the left thigh, one in the lower abdomen,
one at the back of the right foot and another at the back of the body. Bautista was able to run away
even as he was being fired upon. He took cover in a store. The one firing the gun at him was a man he
later identified to be accused Raul Santos. The other one which he saw similarly firing his gun was
aiming at Cupcupin. He identified the man to be one Mario Morales. He added that he saw Cupcupin hit
by gunshots at the left side of the body near the waist which made Cupcupin fall-off the steering wheel.
After running away, Bautista could not remember anymore what else happened. He could not say if
there were other persons who shot at him and Cupcupin. After hearing a shout that the ambushers
were no longer around, he learned that a woman bystander was hit and was boarded on a jeep to be
brought to the hospital. He was boarded on said jeep too but later transferred to a tricycle somewhere
at Bayanbayanan. Bautista was brought to the Martinez General Hospital and to the Mary Johnston
Hospital where he was treated. Bautista was operated on (Exhs. B, B-1, C, D and E). Upon the
apprehension of accused Santos, Bautista went to the police headquarters where he picked out from a
line-up accused Raul Santos. In another line-up, he also picked out accused Morales. Bautista also gave a
sworn statement narrating the shooting incident (Exh. F).

Police Aide Victorino Bohol was on duty and directing traffic at the corner of Plaza Rizal and Estrella
Streets when he heard gunshots. When he looked around he saw two (2) persons who were holding Cal.
45 pistols firing at persons on board a stainless steel owner jeep. Bohol was not able to approach the
men firing their guns because he was not provided with a gun. What he did was to run to headquarters
to call for policemen and when he returned to the scene of the shooting he learned that one of the
passengers of the jeep was killed. He learned also that the slain man was Glicerio Cupcupin and that his
companion was Alberto Bautista alias "Tiwa." Bohol also added that there were two (2) other persons
who were also firing at the passengers of the jeep although he did not recognize these two (2) other
persons. After the arrest of accused Santos, Bohol was called to the police station and through a one-
way mirror he was able to identify accused Santos as one of the persons who shot Cupcupin and
Bautista. Bohol also gave a sworn statement to the police (Exh. A).

On cross-examination, Bohol admitted that at the time of the shooting he was at the Jim Bread Store
talking to someone. When he heard gunshots he stood up at once and saw four (4) men firing their guns
at the same time at the jeep. He added that the accused was arrested some months later in connection
with another shooting incident wherein Santos was suspected of involvement. He confirmed that
Bautista was being shot at while running away from the place.chanrobles lawlibrary : rednad

Cpl. Sabino Patood of the Navotas Police declared that he was investigating a shooting incident which
resulted in the death of one Abdul Rosas wherein the suspect was accused Santos when he was tipped
by police intelligence operatives that Santos was involved in the ambush of Cupcupin. This made him
conduct further investigation by calling for Bautista and Bohol. Patood also interviewed Santos who
admitted his participation in the ambush to him. He did not take any written statement from accused
Santos because there was no counsel available at that time and because Santos was not willing to give
any written statement.

Dr. Maximo Reyes of the NBI Medico Legal Division performed an autopsy on the cadaver of victim
Cupcupin and found out that the latter sustained nineteen (19) gunshot wounds in different parts of his
body. The cause of death was severe hemorrhage secondary to multiple gunshot wounds. Dr. Reyes
added that the assailants were probably at the left side of the victim as they were shooting at the latter
with the victim possibly seated at the time he was shot and hit.

The victim’s wife Lucia Cupcupin declared that P100,000.00 was spent in connection with the death of
her husband who was earning P5,000.00 a month as a businessman dealing in junk materials and marble.
4

The trial court found that the accused Raul Santos had been identified positively by the surviving victim
of the shooting incident — Alberto Bautista, and by the Traffic Aide who had witnessed the execution of

786
the crime — Victorino Bohol. The defense of alibi offered by the accused and supported by the
testimonies of a friend and a sister, was rejected as weak and unavailing. As noted, a judgment of
conviction followed.

In his appeal, Raul Santos assigns the following as errors committed by the trial
court:jgc:chanrobles.com.ph

"i The lower court erred in holding that accused’s identification by prosecution’s witnesses was ‘positive’
and, therefore it erred when it rejected accused’s defense of alibi.

"ii The lower court erred in considering one of the two cases (not the instant ones) filed against the
accused in holding also for his guilt.

"iii The lower court erred in convicting the accused." 5

In respect of the first assigned error, appellant Santos contends that the testimonies of the principal
prosecution witnesses do not conform with the "knowledge and common experience of mankind."
Appellant argues that the two (2) prosecution witnesses, the victim Bautista and Police Aide Bohol,
testified that they saw the accused for the first time in their lives when the crime was committed and
yet identified him as one of the gunmen five (5) months later in the Police Headquarters in Navotas. The
ambuscade and the slaying of Glicerio Cupcupin happened on 26 May 1989; appellant Santos was
identified at the police station on 25 October 1989. Appellant argues that this lapse of time was
unreasonable, which, when coupled with the brief, limited and obstructed view which the prosecution
witnesses had of the gunmen at the time of the shooting, casts serious doubt on the accuracy and
reliability of the identification by the witnesses.

Appellant’s argument does not persuade.

Police Aide Bohol was only about twelve (12) arm-lengths away from the ambush vehicle. The ambush
slaying occurred under conditions of high visibility: the victim Cupcupin was shot to death at 11:45
o’clock in the morning, in good weather, when the sun was almost at its zenith. On cross-examination,
Bohol stated that there were no passing vehicles that blocked his view of the slaying of the victim as the
vehicles stopped some distance away from the jeep when the shooting began. In addition, Bohol
testified that he saw one of the gunmen take a wrist watch and a gun from Cupcupin’s lifeless body.
Clearly, Bohol had the opportunity to observe the extraordinary and startling events which unfolded on
the corner of two (2) busy streets almost at high noon, events which may be expected to leave a strong
impression upon the minds of an eye-witness who, like Police Aide Bohol, had a duty to maintain law
and order. Alberto Bautista who had been riding on a jeep and who escaped death (but not gunshot
wounds) by reason of his quick reflexes, had every reason to remember the faces of those whom he saw
firing at the jeep and at himself. This has been recognized a number of times in our case law. In People v.
Jacolo, Et Al., 6 the Court said:jgc:chanrobles.com.ph

" [W]hile evidence as to the identity of the accused as the person who committed the crime should be
carefully analyzed, . . .’where the conditions of visibility are favorable and the witness does not appear
to be biased against the man on the dock, his or her assertions as to the identity of the malefactor
should normally be accepted. And this is more so where the witness is the victim or his near-relative, as
in this case, because these (people) usually strive to remember the faces of the assailants.’" 7 (Emphasis
supplied).

Appellant Santos also contended that Police Aide Bohol could not have had a clear view of the
ambuscade and the shooting of Cupcupin since he (Bohol) was situated on the left side of the gunmen.
As observed by the Solicitor General, however, the trial court had pointed out that "if he [Bohol] was to
the front right of the jeep" then he must [have been] a little by the left side of the persons firing at the
jeep . . ." 8 "Bohol’s view, therefore," the Solicitor General continued, "was not limited to the left side of
the assailants, especially since he was able to see them [the gunmen] move around the site of the
ambush after they [had] stopped firing, specifically when one of them stripped victim Cupcupin of his
gun and jewelry and they all walked away from that place." 9 The trial court obviously concluded that
Bohol had ample opportunity actually to observe the events on which he testified, and we find no basis

787
for overturning this conclusion of the trial court.chanrobles.com.ph : virtual law library

In respect of the identification by Bautista, Accused also suggests that Bautista had no real opportunity
to see and impress upon his memory the faces of the assailants. In his testimony, Bautista stated that
two (2) men armed with handguns suddenly approached the jeep in which he and Cupcupin were riding.
He agreed that his attention had been "focused" (defense counsel’s own language) on vehicles passing
along Estrella Street as Cupcupin maneuvered the jeep to turn right at the corner and to head towards
Navotas. When the assailants started shooting, Bautista jumped from the jeep, was hit on the left thigh
and other parts of the body, but managed to run for cover from repeated shots or bursts of gunfire.
Bautista testified further that he was shot by appellant Raul Santos while Morales pumped bullets into
Cupcupin; that the gunmen fired at Cupcupin and Bautista from close range, Morales being a mere half
an arm-length to the left of Cupcupin while appellant Santos was about two (2) arm-lengths away from
the ambushed jeep; and that Bautista saw his companion, Cupcupin, slump on the steering wheel as the
bullets crashed into him. Once more, the trial court was led by the above circumstances to conclude that
Bautista had adequate opportunity to see appellant Santos and to retain his face in his memory. We find
no basis for rejecting this factual conclusion of the trial court.

Appellant Santos makes two (2) additional arguments. Firstly, he complains that he was not afforded his
right to counsel in the course of the police line-up, at the police station where he was identified by the
prosecution witnesses. This argument, of course, assumes that during the police line-up, Accused was
under custodial investigation, a stage which, per the appellant, began the instant the police suspected
him of involvement in the ambuscade. Since appellant Santos then had no lawyer present nor was one
provided, his counsel argues, Santos’s identification was "tainted" and inadmissible. The argument is
creative, but has no legal basis. In Gamboa v. Cruz, 10 the Court said that there is "no real need to afford
a suspect the service of counsel at police line-up," 11 a declaration reiterated in People v. Loveria. 12
The customary practice is, of course, that it is the witness who is investigated or interrogated in the
course of a police line-up and who gives a statement to the police, rather than the accused who is not
questioned at all at that stage. The Court is aware of the caveat in Gamboa. 13 But there is nothing in
the record of this case which shows that in the course of the line-up, the police investigators sought to
extract any admission or confession from appellant Santos. The investigators did not in fact interrogate
appellant Santos during the line-up and he remained silent after he had been identified by Bautista and
Bohol.

Appellant Santos’s second contention is that there had been "improper suggestiveness" in the course of
the police line-up amounting to an uncounselled confession. In effect, defense counsel claims that
Bautista and Bohol were induced by the police investigators to point to appellant Santos as one of the
gunmen. The record does not show that the police investigators had coached Bautista. Appellant
Santos’s counsel directed the attention of this Court to a portion of Bohol’s testimony during cross-
examination, to wit:jgc:chanrobles.com.ph

"Atty. Valmonte:chanrob1es virtual 1aw library

Alright, that somebody who told you to go to the office of Capt. Puzon you were informed that on the
other side of the office of Capt. Puzon there was already the person whom they would like to identify?

Victorino Bohol:chanrob1es virtual 1aw library

Yes, sir.

Atty. Valmonte:chanrob1es virtual 1aw library

And was there somebody who asked you who among those in the investigation room the person whom
you saw?

Victorino Bohol:chanrob1es virtual 1aw library

No, sir. Somebody approached me and said, iyan po. But before answering, I made a very careful look at
the person." 14

788
We are not convinced, however, that the phrase "iyan po" constituted an "improper suggestion,"
certainly not in the context of a situation where, as here, appellant Santos was identified successively by
Bautista and Bohol from a group of persons. We consider that the phrase "iyan po" is too cryptic. What
this Court warned against in People v. Acosta, 15 i.e., against an identification process that was
"pointedly suggestive, or generated confidence when there was none, activated visual imagination, and
all told, subverted [a person’s] reliability as [an] eye-witness[..]," has not been successfully shown in the
case at bar.

Appellant Santos next seeks to assail the credibility of Bautista and Bohol by citing supposed
inconsistencies between statements made in their affidavits before trial and their testimony given in the
course of the trial. Appellant’s counsel complains 16 that while witness Bohol could recall the gunmen’s
general appearance, he could not remember the kind of shoes that appellant Santos was wearing nor
the color of their guns; that he had stated in his sworn statement that he had picked out appellant
Santos from a line-up consisting of seven (7) persons, while he testified in open court that he had
identified appellant when the latter was together with only one (1) detainee in the investigation room of
the police station; that Bohol had initially stated that Bautista was driving the jeep but on direct
examination, he stated that it was Cupcupin instead who had been driving the jeep; that in his sworn
statement, Bohol had claimed that he was directing traffic when he first heard gunshots, but on cross-
examination, stated that at that point he was engaged in taking his merienda.chanrobles law library :
red

Close examination of the record will, however, show that the supposed inconsistencies adduced by
appellant Santos are either non-existent or clearly minor and inconsequential in character. The fact that
witness Bohol might not have remembered the kind of shoes appellant Santos was wearing on that
violent occasion nor the color of the gunmen’s weapons, is clearly inconsequential. Close scrutiny of the
sworn statement of Bohol (Exhibit "A") does not reveal any statement that he (Bohol) had picked out
appellant Santos from a seven (7)-person line-up nor does the transcript show that witness Bohol had
identified appellant Santos when appellant was alone with only one detainee in the investigation room
at the police station. 17 Appellant’s counsel did not document his averments. Moreover, as pointed out
by the Solicitor General, 18 whether a police line-up consisted of two (2) or seven (7) persons is actually
immaterial since a police line-up is not essential to a proper and positive identification. 19 Whether it
was Bautista or Cupcupin who had been driving the jeep and whether Bohol was directing traffic or
enjoying his merienda when the first gun shots rang out, cannot be regarded as critical in nature; such
questions do not detract from the basic facts that Bohol was in a position to see and did see the ambush
and the shooting of Cupcupin and Bautista and saw both assailants and the victims. The entrenched
principle is that minor inconsistencies in the testimony of a witness tend to strengthen rather than to
weaken the credibility of the witness as they erase any suspicion of rehearsed testimony. 20

In his second assignment of error, appellant Santos in effect questions the trial court for admitting a
sworn statement by one Ronaldo Guerrero (Exhibit "EE"), a witness in another criminal case (Criminal
Case No. 8117) where appellant Santos was also charged with the murder of one Daniel Nuguera which
had taken place in the very same site where Bautista and Cupcupin were ambushed, i.e., at the corner of
Yangco Street and Estrella Street, Malabon, Metro Manila. When the prosecution first presented the
sworn statement of Guerrero in order to show criminal propensity on the part of appellant Santos, the
defense objected to admission of such sworn statement; the trial court sustained the objection and
rejected the evidence for the purpose it was initially offered. However, the trial court admitted the same
as falling within one or more of the exceptions set out in Section 34, Rule 130 of the Rules of Court,
which reads:jgc:chanrobles.com.ph

"Sec. 34. Similar Acts as Evidence. — Evidence that one did or did not do a certain thing at one time is
not admissible to prove that he did or did not do the same or a similar thing at another time; but it may
be received to prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or
usage and the like." (Emphasis supplied).

Appellant Santos now complains that the affidavit of Ronaldo Guerrero was hearsay evidence,
considering that the prosecution did not present Ronaldo Guerrero as a witness during the trial. We
consider that the trial court did not commit reversible error in admitting the Guerrero affidavit for the

789
limited purpose for proving knowledge or plan or scheme, and more specifically, that appellant knew
that the particular corner of two (2) particular streets in Malabon was a good place to ambush a vehicle
and its passengers. Appellant also had waived the hearsay character of this evidence by failure
seasonably to object to the admission of the affidavit; it is too late in that day to raise the hearsay rule in
the appellant’s memorandum after prosecution and defense had presented their respective cases and
had made their respective offers of evidence. 21 Finally, and in any case, as pointed out by the Solicitor
General, the exclusion of the Guerrero affidavit would not result in any change in the result reached by
the trial court. For that result is essentially and adequately based upon the positive identification of
appellant Santos as one of the gunmen by Bautista and Bohol.

That it took the police authorities five (5) months to locate and apprehend appellant Santos who, it
turned out, resided close by the very locale of the ambush-slaying, did not in any way weaken the
evidence of the prosecution or detract from the conclusions reached by the trial court. The length of
that period of time shows only that police procedures are not always as efficient as they could be and
that witnesses are frequently reluctant to volunteer information to the police authorities in criminal
cases, a point noted so frequently as to have become a matter of judicial notice. 22

Finally, we come to the defense of alibi which appellant Santos raised before the trial court and which
was recounted by the trial court in the following manner:jgc:chanrobles.com.ph

"Accused Raul Santos, after denying the accusations against him, insisted that he was on the date and
time that Cupcupin and Bautista were ambushed somewhere in Ibaan, Batangas to which place he went
on May 20, 1989, because his sister Teresita received a subpoena in a case involving one Apolonio
Nuguera and which subpoena was given to him by another sister named Isabel. Accused Santos claimed
that he was surprised and confused by said subpoena (Exh. 2) and had to go to Batangas while his sisters
are verifying the complaint against him. Accused Santos also maintained that from the time he left the
place on June 12, 1989, he remained continuously in said place.cralawnad

x x x

The testimony of accused Santos regarding his stay in Batangas was corroborated by Melinda David in
whose house he stayed and by his sister Isabel Santos." 23

In respect of the weight properly given to a defense of alibi, the Court has, times beyond numbering,
ruled that such defense is weak most especially when established exclusively or mainly by the accused
himself and his relatives and not by independent and credible persons, 24 and that such a defense will
not prevail over the positive identification made by credible witnesses, 25 especially where the witness
is the victim-complainant himself.

WHEREFORE, for all the foregoing, we hold that the judgment of conviction rendered by the trial court
must be, and it is hereby, AFFIRMED with the following modifications: the civil indemnity payable to the
heirs of Glicerio Cupcupin shall be INCREASED to P50,000.00; the penalty of life imprisonment in
Criminal Case No. 8517-MN shall be CHANGED to reclusion perpetua, which is the proper imposable
penalty under the Revised Penal Code. Costs against Appellant.

SO ORDERED.

Bidin, Davide, Jr., Romero and Melo, JJ., concur.

G.R. No. 118620-21 September 1, 1997

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
NARITO @ "NARING" DADLES, accused-appellant.

790
FRANCISCO, J.:

This case involves the alleged kidnapping of two farmers, Alipio Tehidor and Salvador Alipan and their
respective sons, Dionisio and Antonio from their homes in Barangay Amontay, Binalbagan, Negros
Occidental on May 24, 1989. For the said kidnapping, appellant Narito alias "Naring" Dadles was
charged in two separate informations, to wit:

That on or about the 24th day of May, 1989, in the Municipality of Binalbagan, Province of
Negros Occidental, Philippines, and within the jurisdiction of this Honorable Court, the first
above-named accused, in company of his five (5) other co-accused, whose true names are still
unknown and herein designated only as "Ka Morito", "Ka Willy", "Ka Dindo", "Ka Mike" and
"Ka Juanito", who are all still at large, armed with assorted firearms of unknown calibers,
conspiring, confederating and mutually helping one another, by means of force, violence and
intimidation, did then and there, wilfully, unlawfully and feloniously take, kidnap, detain, and
keep ALIPIO TEHIDOR and DIONISIO TEHIDOR under guard, from their residence at Brgy.
Amontay of the above-named municipality, and bring them somewhere in the hinterlands of
said municipality, under restraint and against their will, without proper authority thereof,
thereby depriving said victims of their civil liberties since then up to the present.1

and

That on or about the 24th day of May, 1989, in the Municipality of Binalbagan, Province of
Negros Occidental, Philippines and within the jurisdiction of this Honorable Court, the first
abovenamed accused, in company of his nine (9) other co-accused, whose true names are still
unknown and herein designated only as "Ka Dindo", "Ka Morito", "Ka Tiwi", "Ka Amay", "Ka
Bobby", "Ka Pedro", "Ka Juanito", "Ka Bernardo" and "Ka Mike" who are all still at large, armed
with assorted firearms of unknown caliber, conspiring, confederating and mutually helping one
another, by means of force, violence and intimidation, did then and there, wilfully, unlawfully
and feloniously take, kidnap, detain, and keep Salvador Alipan alias "Bado" and Antonio Alipan
under guard, from their residence at Barangay Amontay of the above-named municipality, and
bring them somewhere in the hinterlands of said municipality, under restraint and against their
will, without proper authority thereof, thereby depriving said victims of their civil liberties since
then up to the present.2

Of the several accused named in the aforequoted informations, only appellant was arraigned while the
cases against the other accused who remain at large up to the present have been temporarily archived
until their apprehension. At the arraignment, the appellant pleaded not guilty to both counts of
kidnapping. Upon joint manifestation of the Public Prosecutor and the defense counsel, both cases were
ordered consolidated and were jointly tried.3

On the abduction of victims Alipio and Dionisio Tehidor, prosecution witnesses Francisca Tehidor and
Danilo Tehidor testified as follows:

On May 24, 1989 at around 11:00 o'clock in the evening, the appellant Narito alias "Naring" Dadles
together with five (5) others, namely Dindo, Mike, Willy, Morito, and Juanito arrived at the residence of
one of the victims, Alipio Tehidor, in Barangay Amontay, Binalbagan, Negros Occidental. Alipio, his wife,
Francisca, and their two sons Dionisio and Danilo were awakened from their sleep when the appellant
and his companions called Alipio from downstairs. The group which was known to the Tehidor family
because they used to visit the latter's house to ask for rice was allowed to enter by Francisca. Once
inside, they told Francisca that they wanted to talk to Alipio downstairs. Francisca asked them not to
bring Alipio outside and to just talk to him upstairs but her request went unheeded. Then Morito,
assisted by the appellant, tied the hands of Alipio and Dionisio. When Francisca protested, the
appellant's group told her that they would free Alipio and Dionisio if they surrender the firearms of their
two other sons, Logenio and Jenny, both of whom were members of the Civilian Armed Forces
Geographical Units (CAFGU). Unable to surrender the said firearms which were not in the possession of
the spouses Tehidor, the appellant's group forced Alipio and Dionisio to walk with them to an unknown
place. Since then and up to the present, Francisca has not heard from either her husband or her son.4

791
On the other hand, prosecution witnesses Luzviminda Alipan and Vicente Alipan narrated the alleged
kidnapping of Salvador and Antonio Alipan in this wise:

On May 24, 1989 at around 11:30 in the evening while Salvador, his wife, Luzviminda and their sons,
Vicente and Antonio were in their house in Barangay Amontay, Binalbagan, Negros Occidental, they
heard somebody calling them from outside. Luzviminda lighted a lamp and opened the door. She saw
the appellant and his nine (9) companions namely, Dindo, Morito, Amay, Pedro, Juanito, Bernardo, Tiwi,
Mike and Bobby who were all armed. The appellant and Dindo went upstairs and told Salvador to go
with them downstairs as they have something to talk about. Salvador who was apparently acquainted
with the group acceded and followed the appellant and Dindo downstairs. Then the appellant told
Luzviminda, "Nay, we will borrow Tatay, we will return him tomorrow". When Luzviminda refused, the
appellant assured her saying, "Nay, don't worry, just let Tatay go with us together with your son because
they will be returned tomorrow." Thereafter, Salvador and Antonio left with the group to an unknown
destination. And like Francisca, Luzviminda never saw her husband and son again after that night.5

Appellant denied the charges against him and interposed an alibi. The defense attempted to prove that
on the said date and time of the alleged kidnapping of the victims, the appellant was in the house of
defense witness Rogelio Ariola sleeping soundly after a round of beer with the latter and his other
guests.

The appellant who was engaged in the business of selling fruits claimed that he delivered fruits to one of
his usual customers, Rogelio, on May 23, 1989 in Barangay San Pedro, Binalbagan, Negros Occidental. As
Rogelio was not able to pay appellant on the said date, the former allowed the appellant to sleep over in
his house until the following morning. However, Rogelio was able to pay the appellant only at around
6:00 o'clock in the evening of the next day. Thus, upon the advice of Rogelio, the appellant decided to
stay and sleep in the former's house for another night. He went home to Barangay Amontay at around
7:00 o'clock the following morning.6

Rogelio Ariola who is a Minister of the Apostolic Church and a resident of Barangay San Pedro,
Binalbagan, Negros Occidental testified that on May 24, 1989, there was an occasion in their church and
he went home at around 6:00 o'clock in the evening to attend to his guests, some of whom were
members of his church. The appellant was also in his house as he had delivered fruits to Rogelio the
previous day and was waiting to be paid therefor. It was customary for the appellant to sleep in
Rogelio's house whenever the latter could not immediately pay him for the fruits delivered. Since
Rogelio paid the appellant only at around 6:00 o'clock in the evening of May 24, the latter was no longer
able to go home to Barangay Amontay. Rogelio invited the appellant to sleep in his house again that
night and the latter accepted.7

In the meantime, Rogelio entertained his guests by buying Gold Eagle Beer for them to drink. Their
drinking session lasted until 10:00 o'clock in the evening, after which, his visitors went home leaving
behind the appellant who then slept in one of the rooms in Rogelio's house.8

Finding the alibi of the appellant insufficient to controvert his positive identification by the prosecution
witnesses, Branch 55 of the Regional Trial Court (RTC) of Himamaylan, Negros Occidental rendered a
decision convicting the appellant of two (2) courts of kidnapping and serious illegal detention. He was
sentenced to suffer the penalty of "double life imprisonment" and to indemnify the families of the
victims in the amount of one hundred thousand pesos (P100,000.00) each without subsidiary
imprisonment in case of insolvency.9

Hence the present appeal before this Court where the appellant raises the following assignment of
errors:

THE TRIAL COURT ERRED IN GIVING MUCH WEIGHT AND CREDENCE ON (sic) THE EVIDENCE FOR
THE PROSECUTION AND IN DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II

792
 THE TRIAL COURT GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT NARITO DADLES OF
TWO (2) COUNTS OF KIDNAPPING AND SERIOUS ILLEGAL DETENTION.10

In assailing the credibility of the prosecution witnesses, the appellant asseverates that their failure to
confront him about the disappearance of the victims despite several opportunities to do so after the
alleged incident casts a doubt on the truthfulness of their accusation. The appellant brands as
incredulous the testimonies of the prosecution witnesses that although they would see the appellant
during Sundays which is the market day in Barangay Amontay, they did not ask him about their missing
relatives.11 According to the appellant, likewise puzzling is the failure of the prosecution witnesses to
report the incident to the authorities immediately when their respective husbands and sons failed to
return the following morning as promised by the appellant and his companions.12

This court finds neither of the aforementioned circumstances sufficient to detract from the credibility of
the prosecution witnesses. It has been held in a large number of cases that the lapse of a considerable
length of time before a witness comes forward to reveal the identity of the perpetrators of the crime
does not taint the credibility of the witness and his testimony where such delay is satisfactorily
explained.13 Also, this court has had occasion to observe that delay in reporting the occurrence of a
crime or other unusual events in rural areas is well known and should thus, not be taken against the
witness.14

In the instant case, the testimonies of the prosecution witnesses reveal that it was their overriding fear
of reprisal from the appellant's group that prevented them from seeking the aid of the authorities. Thus,
Vicente Alipan testified as follows:

QUESTION:

Now, after the alleged incident, did you ever report this matter to the police
authority or any military personnel in your area, if any?

ANSWER:

I was not able to report this matter to the authorities.

xxx xxx xxx

QUESTION:

And you did not likewise report the incident to any of the military personnel
who were patrolling at your area, is that correct?

ANSWER:

We were not able to report the matter to the military authority because we were
warned by these people not to report because if we will report they will kill us
all.15 (Emphasis supplied.)

Danilo Tehidor likewise testified that the appellant and his companions threatened their family with
execution should they report the matter to the authorities:

QUESTION:

Immediately after that incident when your father and your brother were forcibly
taken by Naring and his group, why did you not immediately report the matter
to the police?

ANSWER:

Because at that time we were warned not to report, they were guarding us.

793
QUESTION:

Who were guarding you?

ANSWER:

The companions of the accused.

QUESTION:

Why after the incident were there occasions that this Narito Dadles and his
companions visited you in your house or have seen you elsewhere, were there
instances?

ANSWER:

Yes, sir.

QUESTION:

Do (sic) they visit your house after that incident?

ANSWER:

Not in the house, only in a certain market place.

QUESTION:

Who among your (sic) members of the family being (sic) warned by Narito
Dadles or his group not to report the matter to the police.

ATTY. LABIS:

No basis. There was no answer that this witness was warned not to report to
the police.

COURT:

Guarded only.

PROSECUTOR AREVALO:

QUESTION:

How do (sic) you know that you and any members (sic) of your family is (sic)
being guarded from the moment you tried to go out from your place?

ANSWER:

They sent us a letter warning us that if ever we report the matter to the
authorities they will kill all of us.

QUESTION:

Who sent the letter to your family?

ANSWER:

794
 Dindo.

QUESTION:

Whom (sic) did Dindo send the letter?

ANSWER:

The letter was sent to my mother through a child courier.16 (Emphasis supplied.)

It is evident that the prosecution witnesses were overcome by fear that the appellant and his
companions would make good their threat the moment they report the incident to the police. This is
undoubtedly the same fear which deterred them from confronting the appellant despite their many
opportunities to do so. The prosecution witnesses were well aware that the appellant did not act alone
but was aided by several other men and that they all possessed firearms. Furthermore, the appellant
lived in the same barangay as the witnesses and had easy access to them. Under the circumstances, the
witnesses could not be blamed for reporting the incident only after they were already able to transfer
residence to another barangay. Contrary to appellant's allegation, such a reaction is natural,
spontaneous and logical in view of the witnesses' first impulse for self-preservation. It is of common
human experience that people overcome by great fear, not only for their lives but also of those of their
loved ones, will choose to remain tight-lipped about an incident and suffer in silence rather than expose
to risk their own safety and of those for whom they care.17

Anent the appellant's defense, suffice it to state that his alibi even if supported by the testimonies of his
friends, deserves the barest consideration.18 This court has held time and again that the defense of alibi
cannot prevail over the positive identification of the accused by the prosecution witnesses who had no
untoward motive to falsely testify against him.19 Relevant is the fact that there appears to be no motive
on the part of the prosecution witnesses to fabricate a criminal charge against the appellant who is
admittedly an acquaintance and whom they have welcomed in their respective households several
times in the past. It must be noted that the prosecution witnesses in this case are immediate relatives of
the victims whose natural interest in obtaining justice and redress by securing the conviction of the
parties responsible for the crime would deter them from implicating persons other than the real
culprits.20

Just as oft-repeated is the rule that for alibi to offset the evidence of the prosecution demonstrating the
guilt of the accused, he must establish not only that he was somewhere else when the crime was
committed but also that it was physically impossible for him to have been at the scene of the crime at
the time that it was committed.21 The defense has failed to meet the requisites of time and place.
Nowhere from the testimonies of the defense witnesses nor from the circumstances of the case may we
infer that it was physically impossible for the appellant to be at the scene of the crime at the alleged
time of its commission.

Rogelio's testimony succeeds only in establishing that the appellant slept in his house on the night of
May 24, 1989. Rogelio who slept in another room could not have known if appellant left his house
sometime during the night after everyone else had fallen asleep. Furthermore, from the appellant's own
admission, Barangay Amontay is only 30 kilometers away from Barangay San Pedro.22 The defense's
theory that as there was no longer any public transportation available after six o'clock in the evening, it
was impossible for the appellant to have been able to reach Barangay Amontay fails to persuade. The
absence of public transportation does not negate the possibility that the appellant availed of other
modes of transportation present at that hour. Thus, it was not totally improbable for the appellant to
have hitched a ride in one of the many trucks plying that route.

As the core issue in the appellant's first assignment of error is ultimately the credibility of the
prosecution vis-a-vis the defense witnesses, it may not be amiss to state herein the well-settled doctrine
that the opinion of the trial court as to who of them should be believed is entitled to great respect, the
latter having had the unequalled opportunity to directly observe the witnesses and to determine by
their demeanor on the stand the probative value of their testimonies. And none of the recognized
exceptions to the rule, that is, where the record circumstances of weight and influence have been

795
overlooked, misunderstood or misapplied by the trial court which, if considered, would have affected
the result of the case, and when such findings are arbitrary, exist in the case of bench.23

We now go to the appellant's second assignment of error where he posits that the testimonies of the
prosecution witnesses fail to make out a case of kidnapping. It is argued that the prosecution was
unable to indubitably prove that the purpose of the appellant and his companions in taking the victims
was to deprive them of their liberty.24 We disagree.

Nothing else is clearer from the testimony of Francisca than that her husband, Alipio and son, Dionisio
were taken by the appellant's group by force and against their will. Thus:

QUESTION:

After that what happened?

ANSWER:

My husband was hogtied downstairs.

QUESTION:

Personally, who hogtied your husband?

ANSWER:

Morito.

QUESTION:

Was he assisted by any of his companions?

ANSWER:

Yes, sir.

QUESTION:

Who among his companions?

ANSWER:

Narito and Mike, only the two of them.

QUESTION:

While these persons you mentioned were hogtying your husband, what did you
do:

ANSWER:

I did not do anything. I asked them why they hogtied their "tatay". They
answered, "we will free "tatay" if he will surrender the firearm because we
knew (sic) that the firearm of your son is with you.

QUESTION:

796
 In spite of your plea, these persons, who tied your husband, did not hear (sic) to
your request?

ANSWER:

No, sir, they did not.

QUESTION:

While hogtying your husband, what happened?

ANSWER:

They said that if my husband will surrender to them the firearm, they will free
my husband and my son.

QUESTION:

Why, you said awhile ago that it was only your husband Alipio Tehidor, why
what happened to your son?

ANSWER:

They were two, my husband and my son were hogtied.

QUESTION:

The two of them were hogtied?

ANSWER:

Yes, sir. 25 (Emphasis supplied.)

The foregoing was corroborated by another eyewitness to the crime, Danilo who testified as follows:

QUESTION:

At around that time on that date, May 24, 1989 at around 11:00 o'clock in the
evening, could you recall if there was any untoward incident that happened?

ANSWER:

Yes, sir.

QUESTION:

What was that unusual incident that happened?

ANSWER:

My father and brother were taken by them on that evening.

QUESTION:

When you said, "taken by them", whom (sic) are you referring, who took your
brother and father?

797
 ANSWER:

Narito Dadles.

QUESTION:

When you said they took your brother and father was Narito Dadles
accompanied by other members of his group?

ATTY. LABIS:

The question is leading.

PROSECUTOR AREVALO:

I was just confronting the witness. That was the statement of the witness.

COURT:

Witness may answer.

ANSWER:

Yes, sir, his companions were Dindo, Mike, Narito (sic), Willy and Juanito.

PROSECUTOR AREVALO:

QUESTION:

There were five of them?

ANSWER:

Yes, sir.

QUESTION:

How did they take your brother and father?

ANSWER:

Their hands were tied at the back.

QUESTION:

The two of them, your father and your brother?

ANSWER:

Yes, sir.26 (Emphasis supplied.)

As regards the victims Salvador and Antonio Alipan, the appellant points out that the testimony of
Luzviminda who witnessed the alleged kidnapping demonstrate that the victims were not deprived of
their liberty because they went with the appellant and his companions peacefully without being
subjected to threats and coercion.27 The court is not convinced. That the victims' hands were not tied
nor guns poked at their sides when they were taken by the appellant's do not conclusively preclude the
deprivation of their liberty. The circumstances surrounding the taking of Salvador and Antonio,

798
particularly the appellant and his companions' previous conduct in kidnapping victims Alipio and
Dionisio, plainly demonstrate their intent to likewise deprive Salvador and Antonio of their liberty.

True it is that "evidence that one did or did not do a certain thing at one time is not admissible to prove
that he did or did not do the same or similar thing at another time."28 However, "it may be received to
prove a specific intent or knowledge, identity, plan, system, scheme, habit, custom or usage, and the
like."29 Thus we have held that:

The general rule is that evidence is not admissible which shows or tends to show, that the
accused in a criminal case has committed a crime wholly independent of the offense for which
he is on trial. It is not competent to prove that he committed other crimes of a like nature for
the purpose of showing that he would be likely to commit the crime charged in the indictment.
A man may be a notorious criminal, but this fact may not be shown to influence a jury in passing
upon the question of his guilt or innocence of the particular offense for which he is on trial. A
man may have committed many crimes and still be innocent of the crime charged in the case on
trial. To permit proof of other crimes would naturally predispose the minds of the jurors against
the defendant. One who commits one crime may be more likely to commit another; yet logically,
one crime does not prove another, nor tend to prove another, unless there is such a relation
between them that proof of one tends to prove the other.30

In the early case of United States v. Evangelista,31 the accused was convicted of arson after the trial
court admitted evidence that he had earlier attempted to set fire to the same premises. Ruling on the
admissibility of the said evidence, we said that:

. . . While it was not the fire charged in the information, and does not by any means amount to
direct evidence against the accused, it was competent to prove the intent of the accused in
setting the fire which was charged in the information.

xxx xxx xxx

. . . "Where a person is charged with the commission of a specific crime, testimony may be
received of other similar acts, committed about the same time, for the purpose only of
establishing the criminal intent of the accused."32 (Emphasis supplied.)

In this case we find that there is such a relation between both incidents of kidnapping charged in the
two informations that "proof of one tends to prove the other", and evidence of similar acts committed
about the same time establishes the criminal intent of the appellant to deprive Salvador and Alipan of
their liberty. First of all, both incidents happened almost simultaneously. The kidnapping of Alipio and
Dionisio occurred only some thirty (30) minutes before Salvador and Antonio were taken from their
home. The appellant and his companions were apparently well acquainted with the Tehidors and the
Alipans who readily allowed them entrance into their respective houses on the fateful night of May 24,
1989. Alipio and Dionisio were taken by the appellant's group on the pretext that they wanted to talk to
Alipio. Similarly, the appellant claims that they took Salvador and Antonio only because they wanted to
talk to the former. Alipio's wife was warned not to tell the authorities about the incident. The same
warning was given to Salvador's wife.

Moreover, as correctly pointed out by the Office of the Solicitor General (OSG), circumstances exist to
further warrant the conclusion that it was the appellant's criminal intent to deprive the victims of liberty,
to wit:

First. If appellant's group merely wanted to talk to Salvador Alipan, they could just have talked
to him then and there at the house of the latter without necessarily taking him together with his
son.

Second. Appellant's group could have elicited the required information from Salvador in just a
matter of hours. Hence, they should have returned Salvador and his son the following day as
promised. To this date, however, no trace of the two (2) can be found.

799
 Third. If they did not have any ill-motive against the duo, why did they warn the family of the
victims not to report the incident to anybody or they will be killed? Clearly, this behavior betrays
the falsity of their alleged intention.33

The court therefore finds the appellant guilty beyond reasonable doubt of kidnapping the victims,
Salvador Alipan, Antonio Alipan, Alipio Tehidor and Dionisio Tehidor. However, "since none of the
circumstances mentioned in Article 267 of the Revised Penal Code (kidnapping with serious illegal
detention) was proved and only the fact of kidnapping . . . was established, we find that the crime
committed is slight illegal detention under Article 268 of the Revised Penal Code. . . . ."34 Moreover, in
the execution of the crime against the first two (2) victims, Salvador and Antonio Alipan, more than
three (3) armed malefactors acted together in its commission.35 Thus, since the generic aggravating
circumstance of band36 attended the commission of the crime and there being no mitigating
circumstance present, the penalty is reclusion temporal in its maximum period. For the slight illegal
detention of the latter two (2) victims, Alipio and Dionisio Tehidor, the aggravating circumstance that
the crime was committed by a band as alleged in the information finds no sufficient factual basis since
the testimonies of the prosecution witnesses do not disclose that at least four (4) of the malefactors
were armed.37 Hence there being no aggravating nor mitigating circumstance attendant in the
commission of the crime, the penalty of reclusion temporal should be imposed in its medium period.

WHEREFORE, the judgment appealed from is hereby MODIFIED. Appellant Narito Dadles is found guilty
of two counts of slight illegal detention and is sentenced to suffer the indeterminate penalty of ten (10)
years of prision mayor as minimum to twenty (20) years of reclusion temporal maximum as maximum
for the slight illegal detention of Salvador and Antonio Alipan, and the indeterminate penalty of ten (10)
years of prision mayor as minimum to seventeen (17) years and four (4) months of reclusion
temporal medium as maximum for the slight illegal detention of Alipio and Dionisio Tehidor, both
penalties to be served successively according to Article 70 of the Revised Penal Code on successive
service of sentences. Appellant is likewise ordered to indemnify the families of the victims in the amount
of ONE HUNDRED THOUSAND PESOS (P100,000.00) each without subsidiary imprisonment in case of
insolvency.

SO ORDERED.

Narvasa, C.J., Davide, Jr., Melo and Panganiban, JJ., concur.

[G.R. No. 133888. March 1, 2001.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ALFREDO NARDO y ROSALES, Accused-Appellant.

DECISION

PER CURIAM:

This case is before this Court on automatic review from the Regional Trial Court of Legazpi City, Albay,
Branch III, which imposed on accused-appellant the death penalty for rape in Criminal Case No.
7170.chanrob1es virtua1 1aw 1ibrary

The victim, Lorielyn R. Nardo, is the eldest daughter of accused- appellant. She was born on September
11, 1981 and, at the time of the incident, was fourteen (14) years old. 1

On February 24, 1996, around noon, Lorielyn was in their house located in Barangay 3, Camalig, Albay,
together with her father, Accused-appellant Alfredo Nardo, two younger brothers, Leonel and Louie, and
maternal grandfather, Vicente Remot. At 1:30 o’clock in the afternoon, after they had lunch, Vicente left
for work. Alfredo told his sons, Leonel and Louie, to go out. He then ordered Lorielyn to get his
cigarettes in his bedroom. When Lorielyn went inside the bedroom, her father followed her. He
embraced Lorielyn from behind and began mashing her breasts. Lorielyn pleaded, "Papa, please stop it.
Have mercy." Her father ignored her. Instead, he undressed her and pushed her to the bed. Lorielyn

800
started to cry, while Alfredo took off his clothes. Then, he lay on top of her and had sexual intercourse
with her. He kissed her from the neck down. She tried to free herself but Alfredo took hold of a knife
from a nearby cabinet and pointed it at her right ear. He threatened to kill their whole family if Lorielyn
told anyone what he did. When he was finished, Alfredo left the house. During all this time, Lorielyn’s
mother, Elizabeth Nardo, was washing clothes about five houses away. 2

Elizabeth returned home at about 3:00 o’clock p.m. She saw Lorielyn crying while washing the dishes.
She asked Lorielyn why she was crying, but her daughter said nothing. 3

On March 19, 1996, Lorielyn was washing clothes when her father approached her and whispered, "We
will play tonight near the river." Lorielyn understood this to mean that her father wanted to have sexual
intercourse with her again. She finished the laundry and left the house. She took a passenger jeepney to
Barangay Libod, Camalig, Albay and proceeded to the house of her aunt, Carol Navera. She stayed there
until her aunt arrived at around 5:00 o’clock in the afternoon. When it became late, Carol told Lorielyn
to go home, but she decided to spend the night at her aunt’s house because she was afraid to undergo
the ordeal from her father again. 4

The next day, Lorielyn’s brother, Leonel, was sent by her father to fetch her, but she refused to go with
him. Her aunt asked her again why she did not want to go home. She merely said she had a problem.
She slept at her aunt’s house again that night. The following day, her mother came to fetch her. Lorielyn
told her mother she did not want to go home. She said "Mama, do you want me to become pregnant in
that house?" Her mother asked, "Who will impregnate you there?" Lorielyn replied, "Your husband." Her
mother retorted that Alfredo could not do that to her, then left. 5

Lorielyn stayed at her aunt’s house until March 22, 1996. On that date, Carol again asked Lorielyn what
her problem was. Finally, she told her aunt that her father raped her. Immediately, Carol went to report
the matter to the police. She later returned home with two policemen, and together they brought
Lorielyn to the Camalig Police Station. The rape was entered in the police blotter. 6 The policemen then
brought Lorielyn to the Municipal Health Office of Camalig, Albay, where she was examined by Dr.
Melvyn F. Orbe, the Municipal Health Officer. 7 From there Lorielyn was brought to the Municipal Trial
Court of Camalig-Albay to file a formal complaint for rape against her father, Alfredo Nardo. 8

On May 29, 1996, an Information for rape was filed against Alfredo Nardo, charging as
follows:chanrob1es virtual 1aw library

That on or about the 24th day of February 1996, at more or less 1:30 o’clock in the afternoon, at Brgy.
No. 3, Municipality of Camalig, Province of Albay, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, being the father of the herein victim, with lewd and
unchaste design, by means of violence, force and intimidation, armed with a knife, did then and there
wilfully, unlawfully and feloniously have carnal knowledge with her (sic) own daughter, LORIELYN R.
NARDO, a 14 year old girl, against her will and consent, to her damage and prejudice.

ACTS CONTRARY TO LAW. 9

At the arraignment on August 8, 1996, Accused-appellant pleaded not guilty. 10

The prosecution presented Dr. Melvyn Orbe, who testified on the following findings as a result of his
examination of the victim, Lorielyn Nardo:chanrob1es virtual 1aw library

Pelvic Examination:chanrob1es virtual 1aw library

• whitish to yellowish discharge

• irritation lateral aspect of the posterior vulva at 3 o’clock

• healed laceration hymenal in origin posterior aspect of the fourchette 11

Dr. Orbe stated that based on these findings, it is possible that Lorielyn had sexual intercourse. 12

801
Carolina Navera, testifying for the prosecution, corroborated Lorielyn’s statement that the latter went to
her house on March 20, 1996. Lorielyn cried and told her that she did not want to go home because she
had a problem. Elizabeth, Lorielyn’s mother, came to fetch her but she refused to go home, saying that
she was raped by her father. Upon hearing this, Elizabeth left and told Carolina not to let Lorielyn leave
her house. After Elizabeth was gone, Carolina went to the police station. She returned later with two
policemen, who then brought Lorielyn to the police headquarters. 13

Ma. Francia Aguilar, the social welfare officer of the Department of Social Welfare and Development,
also testified that in the evening of March 22, 1996, she responded to a report of a rape incident. She
met the victim, Lorielyn Nardo, at the house of Cely Bantog, a social worker, at Camalig, Albay. She
interviewed Lorielyn and her mother, Elizabeth, for the purpose of preparing a Social Case Study Report.
14 Thereafter, she endorsed Lorielyn to the DSWD Center for Girls in Sorsogon, Sorsogon to undergo
therapeutics. 15

SPO3 Jose Nuylan, a member of the Camalig police force, testified that he investigated the rape incident
and took the statement of Lorielyn Nardo. 16

Elizabeth Nardo, the victim’s mother, was called to the witness stand. She testified that she and Alfredo
are not married, but they have been living together. They have seven children, the eldest of whom is
Lorielyn. She stated that Lorielyn was born on September 11, 1981 at Anei, Claveria, Misamis Oriental;
that Lorielyn’s birth certificate was burned in the Municipal Building of Misamis Oriental. 17 However,
Elizabeth presented and identified Lorielyn’s baptismal certificate showing that she was born on
September 11, 1981. 18

The defense, on the other hand, presented lawyer Santer G. Gonzales, the employer of Accused-
Appellant. He testified that accused-appellant worked as a helper at his farm in Quirangay, Camalig,
Albay. On February 24, 1996, Accused-appellant arrived at his farm before 8:00 o’clock in the morning.
He was followed by his father-in-law, Vicente Remot, who lived with him in the same house. It started to
rain hard, so they decided not to work that day. Vicente Remot went home at around 8:30 or 9:00
o’clock in the morning. Accused-appellant stayed behind. After a while, Paterno Ramas, a neighbor of
Atty. Gonzales, arrived. They started to drink. None of them left the farmhouse since Atty. Gonzales kept
bottles of gin and cigarettes in stock. They were joined later in the afternoon by Didjo Mujar, another
friend of Atty. Gonzales. They drank about five bottles of gin and sang while Atty. Gonzales played the
guitar. The rain subsided at around 3:30 o’clock in the afternoon, so they stopped drinking. At 4:00
o’clock in the afternoon, Accused-appellant left. 19 The farm is located around 400 to 500 meters away
from Barangay 3, where accused-appellant and the victim reside, and can be reached in 15 minutes. 20

When asked to comment on the victim, Lorielyn Nardo, Atty. Gonzales described her as one capable of
telling a lie. He narrated that once, she went to his farm to collect the amount of P50.00 as daily wage of
her grandfather, Vicente Remot, but she gave only P35.00 to her mother. Elizabeth thus went to Atty.
Gonzales’ to ask about the deficiency. They later learned from Lorielyn’s younger sister that she spent
the missing P15.00 on snacks. 21

Vicente Remot, Accused-appellant’s father-in-law, corroborated Atty. Gonzales’ testimony that he

reported for work at the latter’s farm in the morning of February 24, 1996, but he was unable to work
because of the rain, so he went home instead, leaving accused-appellant in the farm. At 1:00 o’clock in
the afternoon of that day, he was at home watching television with Elizabeth and his grandchildren,
including Lorielyn. He refuted Lorielyn’s claim that he left after lunch to work, saying that he stayed in
the house the whole afternoon since it was raining. 22

Elizabeth also testified that on February 24, 1996, she was at home watching television with her father
and children, namely, Lorielyn, Lewcherd, Lailani, Leonel, Louie Boy and Leo Boy. All her children were at
home because it was a Saturday. She claimed that Lorielyn filed the complaint for rape against her
father because he was very strict with her. She learned from Lorielyn’s best friend that she had a
problem with her boyfriend, a certain Erwin Loreno. At one time, Lorielyn asked permission to attend a
holy retreat, but Elizabeth found out from the school that there was no such retreat. Lorielyn lied on
another occasion, when she told Mrs. Bonifacia "Paz" Nieva that her grandfather was sick so she can

802
borrow money. 23

Mrs. Bonifacia Nieva testified that her daughter was a classmate of Lorielyn. Once, Lorielyn visited her
saying that she was sent by Elizabeth to borrow money because her grandfather was sick. Mrs. Nieva
gave Lorielyn P200.00. Later, when she went to see Elizabeth to collect payment, she found out that
Lorielyn’s grandfather did not get sick. Lorielyn admitted to her that she lied about it to be able to
borrow money. 24

The prosecution recalled Lorielyn to the witness stand by way of rebuttal evidence. She refuted Atty.
Gonzales’ statement that she did not turn over in full the salary of her grandfather in the amount of
P50.00. She denied that she lied to her mother about a holy retreat held by her school. Anent the
amount of P200.00 she borrowed from Mrs. Nieva, she asserted that it was her father who ordered her
to do that, and that she gave the whole sum of P200.00 to him.25cralaw:red

On clarificatory questioning by the presiding judge, Lorielyn maintained that her grandfather, Vicente
Remot, indeed came home in the morning of February 24, 1996, but he left again to go to Atty. Gonzales’
farm after lunch. That afternoon, her mother was at the public faucet located far away from their house
washing clothes. The judge wondered aloud why she was doing the laundry in the afternoon when this is
usually done in the morning. Lorielyn replied that her mother had started doing the laundry in the
morning but that she was not able to finish it, so she returned in the afternoon to continue her chore.
She denied having any male friends, saying all her friends are girls. When asked once more by the judge,
Lorielyn reiterated that her father had sexual intercourse with her. 26

Carolina Nieva and Elizabeth Nardo were presented as sur-rebuttal witnesses. They testified in sum that
Lorielyn had a boyfriend. 27

Accused-appellant was presented as the last witness. He denied that he raped his daughter on February
24, 1997, saying that he was at the farm of Atty. Gonzales. He scolded Lorielyn when he learned from
her sister and brother that she was always going around with a boy. He also stated that Lorielyn got mad
at him because he did not permit her to leave the house whenever she wanted to. 28

On March 3, 1998, the trial court rendered judgment as follows:chanrob1es virtual 1aw library

WHEREFORE, IN VIEW OF ALL THE FOREGOING CONSIDERATIONS, this court finds the accused ALFREDO
NARDO Y ROSALES GUILTY BEYOND REASONABLE DOUBT of the crime of RAPE and sentences him to
suffer the penalty of DEATH. The said accused in likewise ordered to pay Lorielyn Nardo the amount of
Fifty Thousand Pesos (P50,000.00) for moral damages.chanrob1es virtua1 1aw 1ibrary

For humanitarian reasons, however, it is recommended that the DEATH penalty be commuted to
RECLUSION PERPETUA.

SO ORDERED. 29

Accused-appellant raises the following assignment of errors:chanrob1es virtual 1aw library

THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF THE VICTIM LORIELYN AND
DISREGARDING THE EVIDENCE FOR THE DEFENSE.

II

THE TRIAL COURT ERRED IN REFUSING TO RECITE THE REASONS WHY IT WAS RECOMMENDING
EXECUTIVE CLEMENCY FOR THE ACCUSED. 30

Accused-appellant assails the trial court’s finding that Atty. Gonzales was his employer and therefore
was likely to testify in his favor; and that he could not have noticed accused-appellant leave the farm in

803
the afternoon of February 24, 1996 because he had one drink too many. Accused-appellant contends
that the court should not have been too quick to condemn him when his witness was a lawyer.
Furthermore, he argues that Lorielyn’s conduct after the alleged rape, specifically from February 25 to
March 19, 1996, during which she stayed in the house with her father and continued to do her daily
chores, creates a doubt on the veracity of the charge.

In the Reply Brief for accused-appellant, 31 defense counsel reveals that Lorielyn wrote her the
following letter:chanrob1es virtual 1aw library

7-13-99

Dear Atty. De Guzman:chanrob1es virtual 1aw library

Ako nga po pala si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinbin pa sa ngayon sa Maximum
Security Compound NBP I-D Muntinlupa City. Sumulat po ako sa inyo upang humingi ng tulong na gawin
po sana ang lahat, wala po talagang kasalanan ang aking ama ako na po mismong nag-akusa ang
nagsasabi na walang katotohanan ang lahat ng mga sinabi ko na pinagsamantalahan niya ako. Nagawa
ko lang po ‘yon dahil masyado po kasi siyang mahigpit sa aming magkakapatid. Atty. tulungan ninyo sana
ako, nalaman ko nga po pala ang inyong address dahil dumalaw po ang mama ko noon sa papa ko at
hiningi ko naman po para masulatan ko po kayo.

Umaasa po akong lubos na ako’y inyong matutulungan.

Lubos na umaasa

LORIELYN NARDO 32

On May 4, 2000, counsel for accused-appellant filed a Supplemental Reply Brief, 33 alleging that she
received another letter from Lorielyn Nardo which states:chanrob1es virtual 1aw library

04-17-2000

Dear Atty. Teresita de Guzman,

Unung-una po sa lahat ay nagpapasalamat po ako sa pag-response mo sa letter. Ako nga po pala si

Lorielyn Nardo na anak ni Mr. Alfredo Nardo na nakapiit ngayon sa DORM 1-D ng Muntinlupa, ako po
yung nagpadala ng liham sa inyo. Attorney, lagi ko pong ipinagdarasal na nawa’y matapos na ang
paghihirap at pagdurusa ng aking ama sa loob ng piitan, nawa’y matapos na ang lahat ng problema
upang manumbalik muli ang sigla ng aming pamilya. Nagpapasalamat nga rin po pala ako sa ginagawa
mong pagtulong sa amin, attorney nawa po ay makamit nyo ang tagumpay.

Hanggang na lamang po ang aking liham, umaasa po ako sa inyong pang-unawa at tagumpay.

Nagpapasalamat at umaasa,

Lorielyn Nardo 34

In compliance with the Court’s Resolution dated November 14 2000, 35 the Office of the Solicitor
General filed its comment on the letters of Lorielyn Nardo, 36 contending that there is no mention of
her father’s innocence in her letter dated April 17, 2000. Rather, she merely expressed therein her deep
sympathy for her father’s situation in prison. The Solicitor General argues that a recantation is not
sufficient to warrant the exoneration of accused-appellant after he has been proven guilty beyond
reasonable doubt based on Lorielyn’s candid, categorical and straightforward testimony before the trial
court.

In the meantime, counsel for accused-appellant, by way of a Manifestation and Motion, 37 submitted
two more letters from Lorielyn Nardo which are hereunder reproduced, viz:chanrob1es virtual 1aw
library

804
August 10, 2000

Dear Attorney,

Unang-una po sa lahat ay ang taos-puso kong pasasalamat, sa dahilang pagpapaunlak niyo sa kahilingan
kong maipasa sa korte ang isang liham ng katotohanan, at kahit wala pa po ang isang desisyon mula sa
korte ay lubos po akong umaasa at nagtitiwala sa inyong kakayahan. Attorney, kung alam niyo lang po
ng matanggap at mabasa ang isang letter na nagmula sa’yo ay punung-puno po ng kaligayahan ang aking
puso dahil kahit papaano ay nabawasan na ang pag-aalinlangan sa aking isipan. Sa ngayon po ay patuloy
na lang akong umaasa na sana isang araw ay makita kong muling masaya ang aking pamilya. Attorney,
isang pabor po ang nais kong hilingin, na sana bago magpasko ay muli ko ng makasama ang aking ama,
at gusto ko pong maging ninyo ‘to sa akin sa darating na pasko.chanrob1es virtua1 1aw 1ibrary

Hanggang dito na lamang po ang aking liham, at lubos po akong nagtitiwala sa inyong kakayahan na
mapapawalang sala ang aking ama.

Truly yours,

Lorielyn Nardo 38

January 17, 2001 - Dear Atty. Teresita De Guzman,

Ako po muli si Lorielyn Nardo na anak ni Alfredo Nardo na nakabinhin sa NBP Dorm-1-D Muntinlupa.
Kahit hindi po natupad ang hinihiling kong sana’y makalaya ang aking ama noong nakaraang Disyembre
ay patuloy ko pa rin pong inaasahan at hinihiling ang inyong tulong na sana po ay makalaya na ang aking
ama. Patuloy pong nangingibabaw ang aking konsensiya dahil sa aking ginawa, usmaasa po ako na sana
ay lalo pang mapadali ang paglabas niya sa loob ng kulungan, maniwala po kayo wala siyang kasalanan.
Attorney, alam ko po na ginagawa niyo (po) ang lahat kaya’t ngayon pa lang po ay nagpapasalamat ako
sa inyo at patuloy na umuasa ng inyong tulong at sana ‘y maunawaan niyo ako.

Patuloy na umaasa,

Lorielyn Nardo (anak) 39

Accused-appellant relies on these letters to obtain a reversal of the trial court’s judgment of his
conviction. However, the said letters were not subscribed and sworn to by Lorielyn.

Be that as it may, recantations are frowned upon by the courts. A recantation of a testimony is
exceedingly unreliable, for there is always the probability that such recantation may later on be itself
repudiated. Courts look with disfavor upon retractions, because they can easily be obtained from
witnesses through intimidation or for monetary consideration. A retraction does not necessarily negate
an earlier declaration. 40 Especially, recantations made after the conviction of the accused deserve only
scant consideration. 41

Moreover, any recantation or affidavit of desistance, by itself, even when construed as a pardon in the
so-called "private crimes," is not a ground for the dismissal of the criminal case once the action has been
instituted. 42 The pardon to justify the dismissal of the complaint should be made prior to the institution
of the criminal action. 43 Parenthetically, the crime in the case at bar was committed in 1996, i.e., prior
to the passage of the R.A. 8353, The Anti-Rape Law of 1997, which reclassified rape as a crime against
persons.

Even if it were sworn, Lorielyn’s recantation could hardly suffice to overturn the finding of guilt by the
trial court which was based on her own clear and convincing testimony, given during a full-blown trial.
An affidavit of recantation, being usually taken ex parte, would be considered inferior to the testimony
given in open court. It would be a dangerous rule to reject the testimony taken before a court of justice
simply because the witness who gave it later on changed his/her mind for one reason or another. Such a
rule would make a solemn trial a mockery, and place the proceedings at the mercy of unscrupulous

805
witnesses. 44

As stated, the trial court arrived at its finding of guilt after a careful assessment of the evidence
presented, foremost of which was the testimony of the victim in open court, where the trial judge was
able to personally evaluate her manner of testifying, and from there reach a studied opinion as to her
credibility. As a rule, we do not disturb the findings by the trial court on the credibility of witnesses, for
the trial court is in a better position to pass upon the same. 45

"The trial judge is in a better position to decide the question of credibility, since he personally heard the
witnesses and observed their deportment and manner of testifying. He had before him the essential aids
to determine whether a witness was telling the truth or lying. Truth does not always stalk boldly forth
naked; she often hides in nooks and crannies visible only to the mind’s eye of the judge who tried the
case. To him appears the furtive glance, the blush of conscious shame, the hesitation, the sincere or
flippant or sneering tone, the heat, the calmness, the yawn, the sigh, the candor or lack of it, the scant
or full realization of the solemnity of an oath, the carriage and mien." 46

We find nothing in the records which would indicate that the findings of fact of the trial court are not
supported by the evidence or were arrived at in manifest or palpable error, such as to warrant a
departure from the foregoing rule. The trial court was correct in lending credibility to the testimony of
Lorielyn. The sole testimony of Lorielyn was sufficient to establish the guilt of Accused-Appellant. It is
settled that a person accused of rape can be convicted solely on the testimony of the victim if the trial
court finds said testimony to be credible, natural, convincing, and consistent with human nature and the
course of things. 47

Indeed, a daughter, especially one in her minority, would not accuse her own father of such an
unspeakable crime as incestuous rape had she really not been aggrieved. 48 More importantly, Lorielyn
withstood all the rigors of the case, starting from the initial police interrogation, the medical
examination, the formal charge, the public trial, to the cross-examination. She went through the court
hearings, where she came face to face with her father. If it was true that she merely made up the charge,
she should have been bothered by her conscience at the sight of her father in prison garb and upon the
realization of his sorry state while in detention. The fact that she maintained her story during her
testimony-in-chief all the way up to her rebuttal testimony only serves to substantiate the veracity of
her claim.chanrob1es virtua1 1aw 1ibrary

Well settled is the rule that no woman would concoct a story of defloration, allow an examination of her
private parts and submit herself to public humiliation and scrutiny via an open trial, if her sordid tale
was not true and her sole motivation was not to have the culprit apprehended and punished. 49 A
young girl’s revelation that she has been raped, coupled with her voluntary submission to medical
examination and her willingness to undergo public trial where she could be compelled to give out the
details of an assault on her dignity by, as in this case, her own father, cannot be so easily dismissed as a
mere concoction. 50 Courts usually give credence to the testimony of a girl who is a victim of sexual
assault, particularly if it constitutes incestuous rape because, normally, no person would be willing to
undergo the humiliation of a public trial and to testify on the details of her ordeal were it not to
condemn an injustice. Needless to say, it is settled jurisprudence that testimonies of child-victims are
given full weight and credit, since when a woman, more so if she is a minor, says that she has been
raped, she says in effect all that is necessary to show that rape was committed. Youth and immaturity
are generally badges of truth and sincerity. 51

During the trial, the defense endeavored to portray Lorielyn as an incorrigible liar. Occasions were cited
wherein Lorielyn supposedly lied in order to obtain money or her parents’ permission to leave the house.
However, Rule 130, Section 34, of the Rules of Court provides that: "Evidence that one did or did not do
a certain thing at one time is not admissible to prove that he did nor did not do the same or a similar
thing at another time; but it may be received to prove a specific intent or knowledge, identity, plan,
system, scheme, habit, custom or usage, and the like." While lying may constitute a habit, we believe
that the falsehoods committed by Lorielyn, assuming them for the moment to be true, are petty and
inconsequential. They are not as serious as charging one’s own father of the sordid crime of rape, with
all of its serious repercussions.

806
Accused-appellant argues that the trial court should have given credence to his witness, Atty. Santer G.
Gonzales, because he is a member of the bar. Atty. Gonzales, however, took the witness stand not as a
lawyer but as an ordinary person. He testified in his capacity as accused-appellant’s employer. As such,
no special privilege should be accorded him by the trial court by reason only of his being a member of
the bar. He did not appear in that case as an officer of the court but as a mere witness, and hence
should be treated as one.

Likewise, Accused-appellant insists that Lorielyn’s conduct after the rape, during which she continued to
perform her tasks and lived with her father in their house, negates the commission of rape. Accused-
appellant’s proposition is derived from Lorielyn’s perfunctory yes-or-no answers to the leading
questions propounded to her on cross-examination. Rather than sustain this argument, we rely instead
on the observations of the Social Welfare Officer, whom we find to be an impartial witness, in this
wise:chanrob1es virtual 1aw library

Per observation, Lorielyn is a shy and silent type person. She talked in a very small voice and during the
interview she only talks when being asked. She also appears to be very sad and have been staring
blankly (sic). 52

Accused-appellant assigns as error the trial court’s failure to give the reasons for recommending the
commutation of his sentence from death to reclusion perpetua. As correctly observed by the Solicitor
General, the trial court was impelled by humanitarian reason. 53 Moreover, the commutation of
sentence is a prerogative of the Chief Executive.

As against the positive and categorical testimony of Lorielyn, Accused-appellant can only proffer the
defense of alibi. However, in order to overcome the evidence of the prosecution with the defense of
alibi, he must establish not only that he was somewhere else when the crime was committed but also
that it was physically impossible for him to have been at the scene of the crime at the time it was
committed. 54 In the instant case, the testimonies for the defense sought to establish that accused-
appellant was 400 to 500 meters, or 15 minutes, away from the scene of the crime. This hardly qualifies
as proof that it was physically impossible for him to be at the scene of the crime when it was committed.
Accused-appellant’s defense of alibi must, therefore, necessarily fail.

Carefully sifting through the entire body of evidence presented in this case, we find nothing which
would destroy the moral certainty of accused- appellant’s guilt. While there may be some
inconsistencies in the testimony of Lorielyn, these to our mind are minor inconsistencies which serve to
strengthen her credibility as they are badges of truth rather than indicia of falsehood. 55 Minor
inconsistencies do not affect the credibility of witnesses, as they may even tend to strengthen rather
than weaken their credibility. Inconsistencies in the testimony of prosecution witnesses with respect to
minor details and collateral matters do not affect either the substance of their declaration, their veracity,
or the weight of their testimony. Such minor flaws may even enhance the worth of a testimony, for they
guard against memorized falsities. 56 Besides, a rape victim can not be expected to recall vividly all the
sordid details of the violation committed against her virtue.chanrob1es virtua1 1aw 1ibrary

Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, provides:chanrob1es
virtual 1aw library

The death penalty shall also be imposed if the crime of rape is committed with any of the following
attendant circumstances:chanrob1es virtual 1aw library

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant,
stepparent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-
law-spouse of the parent of the victim. . . .. 57

The concurrence of the two special qualifying circumstances, namely the victim’s minority and the
relationship between the victim and the culprit, increases the penalty of rape to one (1) degree, thus
resulting in the imposition of the death penalty. In order to be appreciated as qualifying circumstances,
however, these must be properly pleaded in the indictment. 58 In addition, the qualifying circumstances
should be duly proved during the trial. 59

807
These requirements are met in this case. The Information sufficiently alleges that accused-appellant is
the father of the victim, and that the latter was fourteen (14) years old at the time of commission of the
rape. These elements, furthermore, were categorically affirmed by Elizabeth Nardo, the victim’s mother
and the most competent witness. She testified that accused-appellant is Lorielyn’s father, and that
Lorielyn was born on September 11, 1981, 60 thus placing her age at the time of the rape at fourteen
(14) years. Moreover, the Lorielyn’s birth date and her relationship to accused-appellant are shown by
her Certificate of Baptism. 61 This was presented by her mother, Elizabeth, in lieu of her Certificate of
Live Birth, which was destroyed by fire. 62 The baptismal certificate, coupled by her mother’s testimony,
is sufficient to establish Lorielyn’s age. 63

We therefore affirm the trial court’s imposition of the death penalty.

Four justices of the Court have continued to maintain the unconstitutionality of Republic Act No. 7659
insofar as it prescribes the death penalty; nevertheless they submit to the ruling of the majority to the
effect that this law is constitutional and that the death penalty can be lawfully imposed in the case at
bar.

We likewise affirm the award of P50,000.00 for moral damages which is consistent with prevailing
jurisprudence. 64 No proof is required to substantiate the award of moral damages in rape cases. In
People v. Prades, 65 we held:chanrob1es virtual 1aw library

. . . The Court has also resolved that in crimes of rape, such as that under consideration, moral damages
may additionally be awarded to the victim in the criminal proceeding, in such amount as the Court
deems just, without the need for pleading or proof of the basis thereof as has heretofore been the
practice. Indeed, the conventional requirement of allegata et probata in civil procedure and for
essentially civil cases should be dispensed with in criminal prosecutions for rape with the civil aspect
included therein, since no appropriate pleadings are filed wherein such allegations can be made.

Corollarily, the fact that complainant has suffered the trauma of mental, physical and psychological
sufferings which constitute the bases for moral damages are too obvious to still require the recital
thereof at the trial by the victim, since the Court itself even assumes and acknowledges such agony on
her part as a gauge of her credibility. What exists by necessary implication as being ineludibly present in
the case need not go through the superfluity of still being proved through a testimonial charade.

In addition to moral damages, the amount of P75,000.00, is awarded to the victim as

indemnity.chanrob1es virtua1 1aw 1ibrary

. . . Indictments for rape continue unabated and the legislative response has been in the form of higher
penalties. The Court believes that, on like considerations, the jurisprudential path on the civil aspect
should follow the same direction. Hence, starting with the case at bar, if the crime of rape is committed
or effectively qualified by any of the circumstances under which the death penalty is authorized by the
present amended law, the indemnity for the victim shall be in the increased amount of not less than
P75,000.00. This is not only a reaction to the apathetic societal perception of the penal law and the
financial fluctuations over time, but also an expression of the displeasure of the Court over the incidence
of heinous crimes against chastity. 66

WHEREFORE, the judgment of the Regional Trial Court of Legaspi City, Albay, Branch III, convicting
accused-appellant Alfredo Nardo y Rosales of the crime of rape, sentencing him to death, and ordering
him to pay the victim, Lorielyn Nardo moral damages in the amount of P50,000.00, is AFFIRMED with
the MODIFICATION that accused-appellant is, further, ordered to pay the victim civil indemnity in the
amount of P75,000.00.

In accordance with Section 25 of Republic Act No. 7659, amending Article 83 of the Revised Penal Code,
upon finality of this decision, let certified true copies thereof, as well as the records of this case, be
forwarded without delay to the Office of the President for possible exercise of the clemency or
pardoning power.

808
SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo,
Buena, Gonzaga-Reyes, Ynares-Santiago, De Leon, Jr. and Sandoval-Gutierrez, JJ., concur.

G.R. No. 138471. October 10, 2002]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL PRUNA y RAMIREZ or ERMAN PRUNA y
RAMIREZ, accused-appellant.

DECISION

DAVIDE, JR., C.J.:

A rosebud that had been snuffed out of its fragrance long before it could even blossom into a flower.
Such is the case of Lizette Arabelle Gonzales (hereafter LIZETTE), who had been defiled at a very tender
age. She was at the time voiding her body waste at their neighbors backyard, but that did not deter
herein appellant from imposing his lechery on her. Indeed, lust is no respecter of time and
place.1cräläwvirtualibräry

On 27 January 1995, an information2 for rape was filed against accused-appellant Manuel Pruna y
Ramirez or Erman Pruna y Ramirez (hereafter PRUNA), the accusatory portion of which reads:

That on or about January 3, 1995 at Sitio Tabing-ilog, Brgy. Panilao, Pilar, Bataan, Philippines, and within
the jurisdiction of this Honorable Court, the said accused thru force and intimidation, did then and there
willfully, unlawfully and feloniously lie and succeed to have sexual intercourse with the offended party,
Lizette Arabelle Gonzales, a 3-year-old minor girl, against the will and consent of the latter, to her
damage and prejudice.

Upon motion of PRUNAs counsel, the Public Attorneys Office (PAO), the Information was amended
changing the name of the accused from Manuel Pruna y Ramirez to Erman Pruna y Ramirez, which was
the name reflected in his birth certificate.3 However, when he testified in court, he stated that his name
was Manuel Pruna; and in the minutes of the court proceedings, he signed the name Manuel Pruna.

On 27 November 1995, upon the Motion to Put the Accused Under Psychiatric or Mental
Examination4 filed by PRUNAs counsel on the ground that he could not secure from PRUNA a coherent
answer to even simple questions, the trial court ordered that the accused be brought to the National
Mental Hospital in Mandaluyong City for psychiatric or mental examination.5 Accordingly, the trial was
suspended, and PRUNA was sent to the National Center for Mental Health (NCMH), Mandaluyong City.

On 28 June 1996, the trial court received a telegram6 from the NCMH stating that PRUNA was in fair
condition. The NCMH later submitted to the trial court a report7 on the psychiatric evaluation of PRUNA
with a recommendation to put him back to jail for the resumption of court proceedings. The report also
stated that PRUNA narrated that while he and his friends were under the bridge sniffing rugby and
drinking alcohol, they saw a 3-year-old girl defecating in the river bank; that they called her; and, upon
the order of his friends he placed her on his lap and attempted to caress her sensitive parts. Said report
was not, however, offered in evidence by the prosecution or the defense.

The prosecution presented five witnesses, whose testimonies can be summed up as follows:

Jacqueline Gonzales, the mother of LIZETTE, testified that on 3 January 1995, at 9:30 a.m., she was
fetching water from the artesian well located ten meters away from her house, while LIZETTE was
defecating at the back of the house of their neighbor Gloria Tolentino. Jacqueline then carried her pail of
water and went back to her house. Since LIZETTE was not home yet, Jacqueline headed toward the place
where the former was moving her bowel. She looked for LIZETTE but did not find her. It was when
Jacqueline was already returning to her house that she saw LIZETTE from behind -- red-faced, crying, and
appeared to be very frightened. When asked where she came from, LIZETTE answered that she was
brought by a certain Boy to the grassy area at the back of Glorias house where she was sexually

809
molested (or kinantot in the Tagalog dialect). LIZETTE then pulled her mother and led her to the house
of PRUNA, which was about eight meters away from their house. PRUNA, the only one known in their
community as Boy, was not there. Jacqueline forthwith requested her mother-in-law to report the
matter to the police, while Jacqueline and LIZETTE went to the Bataan Provincial
Hospital.8cräläwvirtualibräry

Jacqueline further declared that at the time of the alleged rape, LIZETTE was 3 years old, but at the time
Jacqueline testified on 17 October 1995, LIZETTE was 4 years old. LIZETTEs last birthday was on 19 April
1995.9cräläwvirtualibräry

LIZETTE testified that she knew PRUNA whom he called Boy. She pointed to him inside the courtroom.
According to her, PRUNA laid her down in a grassy area and inserted his penis into her vagina. When the
presiding judge asked her whether she knew that it is a sin to tell a lie, she answered in the
affirmative.10cräläwvirtualibräry

Dr. Emelita Quiroz, an obstetrician and gynecologist at the Bataan Provincial Hospital, testified that on 3
January 1995, she conducted a complete physical examination on LIZETTE and took wet smear specimen
from her vaginal wall through scraping. The specimen was sent to the laboratory for analysis by a
medical technologist. Further, she requested a urinalysis for LIZETTE.11 The Medico-Legal
Report12 prepared by Dr. Quiroz reveals the following findings:

Essentially normal PE-Findings

Infantile areola & nipples

Flat breasts (-) hematoma

(-) pubic hair

Labia minora and majora well coaptated

Hymenal ring intact (+) hyperemia (-) laceration

(Vaginal Opening)

LABORATORY RESULT:

WET SMEAR: KOH - Negative for T-Vaginalis

NSS- Negative for fungi

SPERM ANALYSIS -POSITIVE for sperm cells

Gram staining-few, epithelial cells seen, no other microorganism

URINALYSIS: RBC-3-7-/hpf epithelial cells few.

WBC-0-2

Although not stated in the Medico-Legal Report of Dr. Quiroz, the urinalysis report13 includes a positive
finding for sperm cells. Dr. Quiroz explained that the presence of sperm cells in the vaginal canal
signified that sexual intercourse and ejaculation had occurred on the person of the patient. There was
no laceration; but there was hyperemia, which means reddening of the tissue around the vaginal
opening. Among the causes of hyperemia is the insertion of a hard object like penis and
finger.14cräläwvirtualibräry

810
Teresita Magtagnob, the medical technologist who conducted the laboratory examinations and
prepared the corresponding reports,15 testified that sperm cells were found in the wet smear specimen
and urine taken from LIZETTE.16cräläwvirtualibräry

SPO2 Romeo D. Bunsoy, a member of the Philippine National Police assigned at the Pilar Municipal
Station, testified that on 3 January 1995 the parent of the minor rape victim filed a complaint against
PRUNA. He referred the matter to the desk officer to have it blottered. Upon his advise, the minor was
brought to the hospital for examination. When they returned from the hospital, he took their
statements. Later, he conducted an ocular inspection and investigation at the alleged place of the
incident and caused the place to be photographed, which showed that the grasses were flattened. He
inquired from the people in the neighborhood, and one of them answered that he saw the minor being
brought by PRUNA to the place where the minor was found. When PRUNA was brought to their station
by four barangay tanods of Panilao, Pilar, Bataan, SPO2 Bunsoy tried to converse with him, but the
former did not give any reply.17cräläwvirtualibräry

On the part of the defense, Carlito Bondoc and PRUNA took the witness stand.

Carlito testified that on 3 January 1995, he fetched water at the public artesian well together with
Jacqueline. After having drawn water from the well, Jacqueline called her daughter, who was then
defecating on the road near the river; and they both went home. After a while, the parents of LIZETTE
shouted that their daughter was raped, and then they proceeded to the house of PRUNA and accused
him of having raped the child. Carlito asserted that PRUNA could not have raped LIZETTE because he
(PRUNA) was in his house from the time that LIZETTE was moving her bowel up to the time that her
mother went to the house of PRUNA. Carlito knew that PRUNA was at home because the former was
also in the latters house to have coffee. Carlito and the Sulit family thereafter brought PRUNA to the
barangay hall. Since the barangay captain was not around, they brought PRUNA to the municipal
building to prove that he was innocent.18cräläwvirtualibräry

PRUNA denied having raped LIZETTE. He claimed that in the morning of 3 January 1995, he was in his
house preparing coffee for Carlito. After Carlito left, several men arrived and boxed him for reasons not
known to him. Carlito and the latters friend then brought him to the barangay hall. There, LIZETTEs
father boxed him. He was thereafter brought to the Pilar Municipal Jail. There, the mother of the child
threw at him the lid cover of a kettle. He was also asked by the police to take off his clothes and lie flat;
then he was mauled. Thereafter, he was told to put his feet between the grills, and he was made to
masturbate. Worse, his testes were burned with cigarette butts. Every night, he was asked to kneel on a
chair and was hit with a 2x 2 piece of wood.19cräläwvirtualibräry

After trial, PRUNA was convicted by the trial court of the crime of rape in its qualified form and
sentenced to suffer the supreme penalty of death and to indemnify the victim in the sum of P50,000,
plus costs.20 Hence, this automatic review.

In his Appellants Brief,21 PRUNA attributed to the trial court the following errors:

IN RELYING ON THE TESTIMONY OF JACQUELINE S. GONZALES, THE MOTHER OF THE CHILD, THAT THE
LATTER WAS THREE (3) YEARS OLD WHEN THE ALLEGED RAPE OCCURRED WHEN THE BEST EVIDENCE
THEREFOR IS THE BIRTH CERTIFICATE OF THE CHILD.

II

IN RELYING ON THE HEARSAY TESTIMONY OF JACQUELINE S. GONZALES AS TO THE ALLEGED RAPE OF

HER CHILD.

III

811
IN ADMITTING AND RELYING ON THE TESTIMONY OF COMPLAINANT[ ] CHILD WHO WAS ONLY THREE (3)
YEARS OLD WHEN THE ALLEGED RAPE OCCURRED EVEN AS SHE WAS ONLY FIVE (5) YEARS OLD WHEN
SHE TESTIFIED.

IV

IN CONVICTING THE ACCUSED ON DUBIOUS EVIDENCE.

The Office of the Solicitor General (hereafter OSG) seeks the affirmation of the trial courts decision with
the modification that an additional award of P50,000 as moral damages be granted in favor of the
offended party.

As culled from the arguments of the parties, the issues to be resolved in this case are as follows:

(1) Whether LIZETTE was a competent and credible witness considering that she was allegedly only 3
years old when the alleged rape occurred and 5 years old when she testified;

(2) Whether Jacquelines testimony as to the declarations of LIZETTE is hearsay;

(3) Whether the failure of the prosecution to present Gloria Tolentino as a witness is fatal;

(4) Whether appellants guilt has been proved beyond reasonable doubt;

(5) Whether the qualifying circumstance of minority has been duly proved as to justify the imposition of
the death penalty.

We shall resolve these issues in seriatim.

I. LIZETTEs Competency and Credibility as a Witness

Appellant disputes the competency of LIZETTE to testify by reason of her tender age. When LIZETTE was
called to testify, his counsel interposed a vigorous objection to the admission of her testimony because
of her tender age. The trial court noted the objection and allowed her to testify; thus:

DIRECT EXAMINATION BY

PROS. LUMABAS:

Do you know Manuel Pruna?

A Yes, sir.

Q How do you call Manuel Pruna?

A Boy, sir.

Q Where is he?

A There, sir. (Witness pointing to a person wearing blue T-shirt, who when asked, gave his name as
Manuel Pruna)

PROS. LUMABAS:

What did Manuel Pruna or Boy do to you?

A Inihiga niya ako and inserted his penis to my vagina, sir.

812
Q And in what place did he do this to you?

A In the grassy area, sir.

Q After he inserted his penis to your vagina, what happened next?

ATTY. BALUYOT:

The witness for quite sometime could not answer the question.

PROS. LUMABAS:

I think that will be all for the witness.22cräläwvirtualibräry

After which, the defense counsel manifested that he would not cross-examine her and that he intended
to file a motion for her disqualification as a witness.23 The court then proceeded to ask her a few
questions, thus:

COURT :

Do you know what will happen to a child if she is not telling the truth?

A Sa lupa.

Q Do you know that it is a sin to tell a lie?

A Yes, sir.

Q The witness is excused considering the manifestation of Atty. Baluyot that he will be filing a written
motion for the striking out of the testimony of the witness considering her tender
age.24cräläwvirtualibräry

No such motion is extant on the records. At the next hearing, the defense counsel cross-examined
LIZETTE, as follows:

ATTY. BALUYOT:

On January 3, 1995, in the morning where were you?

A I was in the grassy area, sir.

Q In that grassy area there were other children with you playing?

A None, sir.

Q You were then removing[sic] your bowel, is it not?

A Yes, sir.

Q Then while removing your bowel you saw your mother pass[ ] by, is it not?

A Yes, sir.

Q She was then carrying a pail to fetch some water, is it not?

A Yes, sir.

813
Q The water from where she will fetch is [sic] a few meter[s] away from you, is it not?

A Near, sir.

ATTY. BALUYOT:

Considering that the grassy place where you were then discharging your bowel is beside a street?

A Yes, sir.

Q And you saw your mother bringing a pail of water towards your house after her pumping from the
well, is it not?

A Yes, sir.

Q When she passed by she likewise saw you, is it not?

A Yes, sir.

Q Then how far were you from your house when you were discharging your bowel? Please demonstrate
the distance?

A Up to that door, sir.

Q From that position you were at the grass you could see your house, is it not?

A Yes, sir.

Q Could you tell the Honorable Court how long did it take you to discharge your bowel?

A For a short period of time, sir.

(Sandali lang po.)25cräläwvirtualibräry

As a general rule, when a witness takes the witness stand, the law, on ground of public policy, presumes
that he is competent. The court cannot reject the witness in the absence of proof of his incompetency.
The burden is, therefore, upon the party objecting to the competency of a witness to establish the
ground of incompetency.26cräläwvirtualibräry

Section 21 of Rule 130 of the Rules on Evidence enumerates the persons who are disqualified to be
witnesses. Among those disqualified are [c]hildren whose mental maturity is such as to render them
incapable of perceiving the facts respecting which they are examined and relating them truthfully.

No precise minimum age can be fixed at which children shall be excluded from testifying. The
intelligence, not the age, of a young child is the test of the competency as a witness.27 It is settled that a
child, regardless of age, can be a competent witness if he can perceive and, in perceiving, can make
known his perception to others and that he is capable of relating truthfully the facts for which he is
examined.28cräläwvirtualibräry

In determining the competency of a child witness, the court must consider his capacity (a) at the time
the fact to be testified to occurred such that he could receive correct impressions thereof; (b) to
comprehend the obligation of an oath; and (c) to relate those facts truly to the court at the time he is
offered as a witness.29 The examination should show that the child has some understanding of the
punishment which may result from false swearing. The requisite appreciation of consequences is
disclosed where the child states that he knows that it is wrong to tell a lie, and that he would be
punished if he does so, or that he uses language which is equivalent to saying that he would be sent to
hell for false swearing.30 A child can be disqualified only if it can be shown that his mental maturity

814
renders him incapable of perceiving facts respecting which he is being examined and of relating them
truthfully.31cräläwvirtualibräry

The question of competency of a child-witness rests primarily in the sound discretion of the trial court.
This is so because the trial judge sees the proposed witness and observes his manner of testifying, his
apparent possession or lack of intelligence, as well as his understanding of the obligation of an
oath.32 Since many of the witness manners cannot be photographed into the record, the finding of the
trial judge will not be disturbed or reversed unless from what is preserved it is clear that such finding
was erroneous.33cräläwvirtualibräry

In this case, appellant questions the competency of LIZETTE as a witness solely on the ground of her age.
He failed to discharge the burden of showing her mental immaturity. From the above-quoted testimony,
it can be gleaned that LIZETTE had the capacity of observation, recollection, and communication34 and
that she could discern the consequence of telling a lie. We, therefore, sustain the trial court in admitting
her testimony and according it great weight.

We are not persuaded by appellants assertion that LIZETTE should not be allowed to testify two years
after the alleged rape when the interplay of frail memory combines with the imagination of earlier years.
It must be noted that it is a most natural reaction for victims of criminal violence to have a lasting
impression of the manner in which the crime was committed and the identity of the person responsible
therefor.35cräläwvirtualibräry

In a string of cases, we have said that the testimony of a rape victim who is of young or tender age is
credible and deserves full credit,36 especially where no motive is attributed to the victim that would
make her testify falsely against the accused.37 Indeed, a girl of such age as LIZETTE would not concoct a
story of defloration; allow the examination of her private parts; and undergo the expense, trouble,
inconvenience, and the trauma of a public trial unless she was in fact raped.38

II. The Alleged Hearsay Testimony of Jacqueline Gonzales

Contrary to appellants contention, Jacquelines testimony that LIZETTE told her that appellant laid her in
the grassy area and inserted his penis into her vagina is not covered by the hearsay evidence rule, which
finds application when the declarant does not testify. This rule, as enunciated under Section 36, Rule
130 of the Rules on Evidence, provides that a witness can testify only to those facts which he knows of
his personal knowledge except as otherwise provided in the Rules of Court.

The term hearsay as used in the law on evidence, signifies evidence which is not founded upon the
personal knowledge of the witness from whom it is elicited and which consequently does not depend
wholly for its credibility and weight upon the confidence which the court may have in him; its value, if
any, is measured by the credit to be given to some third person not sworn as a witness to that fact, and
consequently not subject to cross-examination.39 If one therefore testifies to facts which he learned
from a third person not sworn as a witness to those facts, his testimony is inadmissible as hearsay
evidence.40cräläwvirtualibräry

The reason for the exclusion of hearsay evidence is that the party against whom the hearsay testimony
is presented is deprived of the right or opportunity to cross-examine the person to whom the
statements are attributed.41 Moreover, the court is without opportunity to test the credibility of hearsay
statements by observing the demeanor of the person who made them.42cräläwvirtualibräry

In the instant case, the declarant (LIZETTE) herself was sworn as a witness to the fact testified to by
Jacqueline. The appellant even cross-examined her (LIZETTE). Moreover, the trial court had the
opportunity to observe her manner of testifying. Hence, Jacquelines testimony on the incident related
to her by her daughter cannot be disregarded as hearsay evidence.

Even assuming that the aforementioned testimony of Jacqueline is hearsay, its non-admission would not
save the day for the appellant. Such testimony is not indispensable, as it merely serves to corroborate
LIZETTEs testimony that PRUNA laid her down in the grass and inserted his private organ into hers. As

815
discussed earlier, LIZETTEs testimony, which was found to be credible by the trial court, is sufficient
basis for conviction.

At any rate, Jacquelines testimony is proof of the victims conduct immediately after the rape. It shows
that LIZETTE immediately revealed to her mother the rape incident and the identity of her defiler. As will
be discussed later, such conduct is one of the earmarks of the truth of the charge of rape.

III Non-Presentation of Gloria Tolentino as a Witness

Appellant harps on the prosecutions failure to put on the witness stand Gloria Tolentino, who was listed
as a witness and executed an affidavit on 4 January 1995 that she saw the appellant carrying and
bringing LIZETTE to a grassy area at the back of her house.

It is undisputed that at the time the case was called for trial, Gloria had already moved out of her
residence in Panilao, Pilar, Bataan, and could not be found anymore. In any event, as opined by the OSG,
her intended testimony could be dispensed with, as it would only be corroborative of LIZETTEs
testimony that Pruna brought her to a grassy area.

IV. Sufficiency of the Prosecutions Evidence Against Appellant

When LIZETTE was put in the witness stand, she unhesitatingly identified PRUNA, their neighbor, as the
one who defiled her. A rape victim can easily identify her assailant especially if he is known to her
because during the rape, she is physically close to her assailant that enables her to have a good look at
the latters physical features.43cräläwvirtualibräry

LIZETTE testified that on 3 January 1995 PRUNA, whom she called Boy, laid her in a grassy area and
inserted his penis into her genitalia. When a girl or a woman says that she has been raped she says in
effect all that is necessary to show that rape was truly committed.44 She is not expected to remember all
the ugly details of the outrage committed against her.45 And when her testimony passes the test of
credibility, the accused can be convicted on the basis thereof, for in most cases it is the only evidence
that can be offered to establish his guilt.46cräläwvirtualibräry

Likewise, LIZETTEs mother testified that right after the incident LIZETTE disclosed what happened to her
and readily identified PRUNA as the culprit. She even led her mother to the house of
PRUNA.47 Thereafter, the two went to the police authorities to report the incident, and then to the
hospital for LIZETTEs medical examination.

By and large, the medical evidence lends credence to LIZETTEs testimony that PRUNA inserted his penis
into her vagina. The Medico-Legal Report shows that there was hyperemia or reddening of the vaginal
opening of LIZETTE. As opined by Dr. Quiroz, who was presented as an expert witness, hyperemia can be
caused by the insertion of a hard object like penis and finger.48 The presence of sperm cells in the
vaginal canal and urine of LIZETTE is also a mute testimony of the sexual contact that further
strengthens LIZETTEs claim of rape.

This Court is not oblivious of the finding that no laceration was found in LIZETTEs organ despite the fact
that she was examined immediately after she was raped. We have already ruled, however, that the
absence of fresh lacerations does not preclude the finding of rape,49 especially when the victim is of
tender age.50 Well- settled is the rule that rape is consummated by the slightest penile penetration of
the labia or pudendum of the female.51 The presence of hyperemia in LIZETTEs vaginal opening and the
existence of sperm cells in her vaginal canal and urine are clear indications that PRUNAs organ indeed
touched the labia or pudendum of LIZETTE.

In a nutshell, the following overwhelmingly establish the truth of the charge of rape: (a) the spontaneity
of the identification by LIZETTE of PRUNA as the rapist; (b) her immediate revelation to her mother of
the dastard act committed against her; (c) her act of leading her mother to appellants house right after
the incident; (d) the prompt filing of the complaint before the authorities; (e) LIZETTEs submission to
medical examination; (f) the hyperemia in her private part; and (g) the presence of sperm cells in her
vaginal canal and urine.

816
The trial court correctly disregarded the defense of alibi raised by the accused. We have consistently
held that for alibi to prosper, it must be proved that during the commission of the crime, the accused
was in another place and that it was physically impossible for him to be at the crime scene. Just like
denial, alibi is an inherently weak defense; and unless supported by clear and convincing evidence, the
same cannot prevail over the positive declaration of the victim.52 We have also held that when alibi is
established only by the accused, his relatives, or close friends, the same should be treated with strictest
scrutiny.53cräläwvirtualibräry

Carlito, who was admittedly a close friend of appellants parents, corroborated PRUNAs testimony that
he (PRUNA) was in his house during the time that LIZETTE was raped. It is, however, an established fact
that the place where the rape occurred was just a few meters away from the house of PRUNA. Thus,
there was no physical impossibility for PRUNA to be in the grassy area to consummate the crime of rape.

The defense, through Carlito, attempted to impute motive to Jacqueline in filing against PRUNA the
charge of rape. According to him, LIZETTEs grandparents, the Sulits, wanted to buy the place of the
PRUNA family, but the latter refused.54 Aside from the fact that such testimony was not corroborated,
said motive, if at all, is too flimsy to be even considered. No mother in her right mind would use her
offspring as an engine of malice. She would not subject her child to the humiliation, disgrace, and even
the stigma attendant to a prosecution for rape unless she is motivated by the desire to bring to justice
the person responsible for her childs defilement.55

V. Sufficiency of Evidence of LIZETTEs Minority and Propriety of the Imposition of the Death Penalty

The commission of the crime of rape by PRUNA having been duly established by the prosecution, we
now come to the question of the penalty to be meted upon him.

Article 335, seventh paragraph, no. 4, of the Revised Penal Code, as amended by Republic Act No. 7659,
provides that the death penalty shall be imposed if the crime of rape is committed against a child below
seven (7) years old. We have held that in such a case the minority of the victim must be proved with
equal certainty and clearness as the crime itself. The failure to sufficiently establish the victims age is
fatal and consequently bars conviction for rape in its qualified form.56cräläwvirtualibräry

A persons age is best proved by the birth certificate. But is the presentation of the victims birth
certificate a sine qua non requirement to prove her age for the appreciation of minority either as an
element of the crime or as a qualifying circumstance? Recent jurisprudence has conflicting
pronouncements.

In the following cases, no birth certificate was presented and this Court ruled that the age of the victim
was not duly proved by the prosecution:

1. In People v. Vargas,57 the testimonies of the victim and her aunt that the former was 10 years old at
the time of the rape were not considered proof of her age for being hearsay. This Court also observed
that the victim could easily be mistaken for a child below 12 years of age, and hence it was not correct
to judge the victims age by her appearance. We held: The difference of two or three years in age may
not always be readily apparent by mere physical manifestations or appearance.

2. In People v. Javier,58 the victim was alleged to be 16 years old, and the accused did not contest her
age. Ratiocinating that in this age of modernism, there is hardly any difference between a 16-year-old
girl and an 18-year-old one insofar as physical features and attributes are concerned, this Court held
that an independent proof of the actual age of a rape victim is vital and essential so as to remove an iota
of doubt that the victim is indeed under 18 years of age as to fall under the qualifying circumstances
enumerated in R.A. No. 7659.

3. In People v. Brigildo,59 aside from the failure of the prosecution to present the offended partys birth
certificate or other equally acceptable official document concerning her age, the testimonies on record
were not clear as to her exact age. The victim declared that she was 11 years old when she testified in
court a year after the incident, while her mother claimed that she was around 15 years old at the time of

817
the commission of the crime. The informations even alleged a different age. Hence, this Court refused to
appreciate the qualifying circumstance of minority because of the uncertainty regarding her age.

4. In People v. Tipay,60 the offended party was alleged in the information to be under 16 years of age. No
independent evidence was presented to prove it. This Court recognized that the minority of a victim
who may be below the age of 10 is quite manifest and may be taken judicial notice of by the court. But
when the victim is between the crucial years of 15 and 17 where minority may seem to be dubitable due
to one's physical appearance, the prosecution should prove the fact of minority with certainty. The lack
of objection on the part of the accused concerning the victims age does not excuse the prosecution from
discharging its burden.

5. In People v. Cula,61 the victim was alleged in the complaint to be 16 years old when the rape was
committed, but no evidence at all was presented to prove her age. We held that the failure of the
accused to deny such allegation cannot make up for the failure of the prosecution to prove with
certainty the victims minority. Because of the lacuna in the prosecutions evidence, coupled with the trial
courts failure to make a categorical finding of minority of the victim, we declined to consider the
qualifying circumstance of minority.

6. In People v. Veloso,62 the victim was alleged to be 9 years of age when she was raped. Citing People v.
Vargas,63 this Court refused to consider the testimonies of the victim and her father as sufficient proof
of her age.

7. In People v. Pecayo,64 the victim simply stated during the beginning of her direct examination that she
was 14 years old and that she was born on 13 January 1983. We held that the victims casual testimony
as to her age is not enough, and that the lack of denial on the part of the accused does not excuse the
prosecution from proving her age through competent evidence such as a duly certified certificate of live
birth, baptismal certificate, or some other authentic document showing her age.

8. In People v. Tundag,65 the victim testified that she was 13 years of age when she was raped, but she
did not know exactly when she was born. Unable to secure a copy of her birth certificate, the
prosecution moved that judicial notice be taken of the fact that she was below 18 years old at the time
of the rape. Despite the admission by the defense of such fact, this Court held that the age of the victim
is not a matter of judicial notice, whether mandatory or discretionary. Under Section 3, Rule 129 of the
Rules on Evidence, a hearing is required before such fact can be taken judicial notice of by courts.

9. In People v. Geraban,66 the victims testimony was categorical in declaring that she was 15, but her
mothers testimony regarding her age was not clear. We thus declared that the prosecution failed to
discharge the burden of proving minority.

10. In People v. Liban67 and People v. Llandelar,68 the only evidence adduced to prove the minority of the
victims was the victims bare testimony that they were 10 and 16 years old, respectively. This Court held
that while the declaration of a victim as to her age, being an exception to the hearsay proscription,
would be admissible under the rule on pedigree, the question on the relative weight that may be
accorded to it is another matter. The prosecution should present the victims birth certificate or, in lieu
thereof, any other documentary evidence, like a baptismal certificate, school records, and documents of
similar nature, or credible testimonial evidence that can help establish the age of the victim. Neither the
obvious minority of the victim nor the absence any contrary assertion from the defense can exonerate
the prosecution from its burden. Judicial notice of the issue of age without the requisite hearing under
Section 3 of Rule 129 of the Rules on Evidence would not be sufficient compliance with the law.

11. In People v. Alvarado,69 the victim testified that she was 14 years old at the time of the rape, and this
was confirmed by the accused, who was victims father. The victims mother, however, testified as to her
date of birth which showed that she was 13 years of age at the time of the commission of the crime. For
this doubt as to the victims age, the accused was held guilty of simple rape only and meted the penalty
of reclusion perpetua, and not death penalty.

818
On the other hand, in the following cases, we ruled that the age of the rape victim was sufficiently
established despite the failure of the prosecution to present the birth certificate of the offended party
to prove her age:

1. In People v. Rafales,70 the testimony of the victim and her mother that the former was only 10 years
old when she was raped, which was not denied by the accused, was deemed sufficient to prove her age
for the purpose of determining whether the accused could be held guilty of statutory rape, which is
carnal knowledge of a woman below 12 years of age.

2. In People v. De la Cruz,71 the testimony of the mother alone that her two daughters were both 14
years old at the time of the rape incidents was deemed sufficient because there was no reason to doubt
the testimony of the mother, who had personal knowledge of the ages of her children. Moreover, said
testimony was never challenged by the accused and stood unrebutted by any other evidence.

3. In People v. Bali-balita,72 the victims testimony as to her age, which was corroborated by her half-
sister, was deemed sufficient. We noted that the victim testified in court four months after the rape,
and hence it was not difficult for the trial court to take judicial notice that she was under 18 years of age.

4. In People v. Velasco,73 the minority of the victim was deemed established by (a) the complainant
herself, who was held to be competent to testify on her age, as it constituted family tradition; (b) the
open admission of the accused that the victim was a 12-year-old minor; and (c) the categorical finding of
the trial court that she was a minor of a little over twelve years.

5. In People v. Remudo,74 the trial court appreciated the qualifying circumstance of minority on the
strength of (a) the offended partys testimony as to the date of her birth, which showed that she was 13
years old at the time of the rape, and (b) the admission of said date of birth by the accused who was the
victims brother.

6. In People v. LLanita75 the only evidence presented by the prosecution to establish that the victim was
below 7 years old at the time of the alleged rape was the victims own testimony. Although hearsay
because she could not have personal knowledge of the date of her birth but could only acquire
knowledge thereof from her parents or relatives, said testimony was held admissible for being an
assertion of family tradition regarding pedigree. Her testimony and the accuseds admission that she was
5 years old during the commission of the crime were held sufficient to establish her age.

7. In People v. Agustin,76 the victims testimony that she was 14 years old at the time of the rape
incidents, coupled with the express admission of her age by the accused who was her father, sufficiently
proved her minority.

8. In People v. Esuela,77 the testimony of the victims mother that the victim was 13 years of age at the
time of the rape was held sufficient to establish minority for the reason that as a mother she was in the
best position to know when she delivered her child. Also considered were the victims own testimony
regarding her age, as well as the observation of the trial court that she could not have been more than
18 years old when she testified.

In order to remove any confusion that may be engendered by the foregoing cases, we hereby set the
following guidelines in appreciating age, either as an element of the crime or as a qualifying
circumstance.

1. The best evidence to prove the age of the offended party is an original or certified true copy of the
certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate
and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or
otherwise unavailable, the testimony, if clear and credible, of the victims mother or a member of the
family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such

819
as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on
Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less
than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less
than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less
than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victims
mother or relatives concerning the victims age, the complainants testimony will suffice provided that it
is expressly and clearly admitted by the accused.78cräläwvirtualibräry

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the
accused to object to the testimonial evidence regarding age shall not be taken against him.

The trial court should always make a categorical finding as to the age of the victim.

In the present case, no birth certificate or any similar authentic document, such as a baptismal
certificate of LIZETTE, was presented to prove her age. In imposing the death penalty, the trial court
ratiocinated in this wise:

In the instant case, the victim, Lizette Arabelle Gonzales, was a 3-year-old minor girl as alleged in the
information and the defense did not contest her age and as a matter of fact was questioning her
qualification to testify because of her tender age when she testified two (2) years later in Court. The
victims Medico-Legal Certificate date[d] January 3, 1995 established the fact that at the time of the
commission of the rape on January 3, 1995, the child was only 3 years old.79cräläwvirtualibräry

It thus appears that the trial courts finding that LIZETTE was 3 years old when she was raped was based
on the Medico-Legal Report prepared by Dr. Quiroz, as well as on the fact that the defense did not
contest her age and even questioned her qualification to testify because of her tender age.

However, the Medico-Legal Report relied upon by the trial court does not in any way prove the age of
LIZETTE, for there is nothing therein which even mentions her age. Only testimonial evidence was
presented to establish LIZETTEs age. Her mother, Jacqueline, testified on 17 October 1995 as follows:

Q. Now, on January 3, 1995 at about 9:30 in the morning, do you still recall where you were?

A. Yes, sir.

Q. Where were you at that particular date and time?

A. I was fetching water from an artesian well beside the house of my neighbor, sir.

Q. Where was this daughter of yours then when you were fetching water?

A. My daughter was discharging her bowel who was then at the back of the house of our neighbor, sir.

How old is your daughter Lizette Arabelle Gonzales?

A. Three years old, sir.

Q. At the time that she was discharging her bowel, how old [was] she?

A. Three years old, sir. She is four years old now.

820
Q. When was her last birthday?

A. April 19, 1995, sir.80cräläwvirtualibräry

Likewise, LIZETTE testified on 20 November 1996, or almost two years after the incident, that she was 5
years old.81 However, when the defense counsel asked her how old she was on 3 January 1995, or at the
time of the rape, she replied that she was 5 years old. Upon further question as to the date she was
born, she could not answer.82cräläwvirtualibräry

For PRUNA to be convicted of rape in its qualified form and meted the supreme penalty of death, it must
be established with certainty that LIZETTE was below 7 years old at the time of the commission of the
crime. It must be stressed that the severity of the death penalty, especially its irreversible and final
nature once carried out, makes the decision-making process in capital offenses aptly subject to the most
exacting rules of procedure and evidence.83cräläwvirtualibräry

In view of the uncertainty of LIZETTEs exact age, corroborative evidence such as her birth certificate,
baptismal certificate or any other authentic document should be introduced in evidence84 in order that
the qualifying circumstance of below seven (7) years old is appreciated against the appellant. The lack of
objection on the part of the defense as to her age did not excuse the prosecution from discharging its
burden. That the defense invoked LIZETTEs tender age for purposes of questioning her competency to
testify is not necessarily an admission that she was below 7 years of age when PRUNA raped her on 3
January 1995. Such being the case, PRUNA cannot be convicted of qualified rape, and hence the death
penalty cannot be imposed on him.

However, conformably with no. 3(b) of the foregoing guidelines, the testimony of LIZETTEs mother that
she was 3 years old at the time of the commission of the crime is sufficient for purposes of holding
PRUNA liable for statutory rape, or rape of a girl below 12 years of age. Under the second paragraph of
Article 335, as amended by R.A. No. 7659, in relation to no. 3 of the first paragraph thereof, having
carnal knowledge of a woman under 12 years of age is punishable by reclusion perpetua. Thus, the
penalty to be imposed on PRUNA should be reclusion perpetua, and not death penalty.

As regards the civil liability of PRUNA, the indemnity in the amount of P50,000 awarded by the trial
court is not sufficient. In accordance with recent jurisprudence, LIZETTE should also be awarded moral
damages in the amount of P50,000 without need of pleading or proof because the mental, physical and
psychological trauma suffered by her is too obvious.85cräläwvirtualibräry

WHEREFORE, the decision of the Regional Trial Court, Branch 1, Balanga, Bataan, in Criminal Case No.
6044 is hereby AFFIRMED with the modification that accused Manuel Pruna y Ramirez or Erman Pruna y
Ramirez is held guilty beyond reasonable doubt of statutory rape, and not qualified rape, and is
sentenced to suffer reclusion perpetua and to pay the victim Lizette Arabelle Gonzales the sum of
P50,000 as moral damages in addition to the indemnity of P50,000.

Costs de oficio.

SO ORDERED.

G.R. No. 107534 August 21, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RAUL CABINTOY y INTONG and CELSO FERNANDO y ANO, accused-appellants.

FELICIANO, J.:

821
Appellants Raul Cabintoy and Celso Fernando, together with one Fernando Garcia who is still at
large, were charged with the crime of robbery with homicide committed on the evening of 24
May 1991 against the person of Wilfredo Diaz, who was then driving a 5-J Taxi along Gen. Luna
Street, Guitnangbayan I, San Mateo, Rizal.

Both appellants pleaded not guilty to the charge during the arraignment, and the case
proceeded to trial.

The evidence for the prosecution discloses that on 24 May 1991 at around 11:50 in the evening,
P/Pfc. Richard P. Salvador, Chief of the Investigation Section of the San Mateo Police, received
information that robbery with homicide had been committed in General Luna Street in front of
the Catholic Cemetery in Barangay Guitnangbayan, San Mateo, Rizal. He was also informed that
the victim was one Wilfredo Diaz, a taxi driver, who was brought to the nearest hospital but
pronounced dead upon arrival.

Pfc. Salvador and Pfc. Año conducted an ocular inspection at the scene of the crime and saw the
5-J taxi lying on its right side. Bloodstains were scattered inside the 5-J taxi and the rear
windshield of the taxi was smashed. They recovered a knife, presumably used during the
commission of the crime, and a pair of slippers inside the taxi. The knife recovered is a kind of
knife commonly used by butchers. They also found a trail of blood from the scene of the crime
up to Resurrection St. going towards Daang-Bakal; hence, they surmised that one of the
suspects had been injured during the incident.1 Accordingly, Pat. Cariño together with Pat.
Guillermo were directed to go to different hospitals on the premise that one of the suspects
might have been wounded. This investigative effort carried out on the morning of 25 May 1991
yielded no results.2

Meanwhile, on the same morning of 26 May 1991, P/Pfc. Richard Salvador went to the San
Mateo, Rizal slaughter house located near the public market in Brgy. Guitnangbayan to inquire
about the knife found inside the taxi. Pfc. Salvador questioned the butchers therein and showed
them the knife. Three (3) butchers identified the knife as one used frequently by a person
named "Amang" or Celso Fernando, who also worked as a butcher in the same slaughter house.
Pfc. Salvador proceeded then to the residence of Celso Fernando or alias "Amang" in Tubo
NAWASA, Brgy. Guitnangbayan, and asked about "Amang's" whereabouts. The neighbors and
relatives informed him that "Amang" was at work in the slaughter house. Pfc. Salvador returned
to the station and discussed the evidence the police had gathered.

In the morning of 26 May 1991, Pfc. Salvador was informed by police informer that the suspects
were in a construction site in Dapitan, Sampaloc, Manila. He immediately formed a police team
to track down and if possible, to arrest the accused. The team proceeded to the Manila police
station which had jurisdiction over the area and coordinated with them. The police were able to
arrest accused-appellants Cabintoy and Fernando in Dapitan St., Sampaloc, Manila and brought
them to the San Mateo Police Station.3

P/Pfc. Richard Salvador testified in court that accused-appellants were informed of their
constitutional rights in the presence of counsel, Atty. Benjamin Pozon of the Public Attorney's
Office (PAO), on 26 May 1991. On the same day, each appellant executed a waiver of the right
to counsel signed in the presence of Atty. Pozon. Thereafter, appellant Raul Cabintoy executed a
sworn statement admitting his participation in the crime and implicating Celso Fernando and
one Fernando Garcia, When this written confession was executed, Atty. Pozon was present.
When Celso Fernando made his confession he was not represented by a lawyer, but Atty. Pozon
was still there because he was curious about the case. 4

Both P/Pfc. Salvador and Pat. Cariño testified at the trial that at the time of the arrest, Cabintoy
had a wound on the left thigh. When asked about his thigh wound, Cabintoy verbally admitted
that he sustained this wound during the incident.5 Even before the two (2) appellants were
formally investigated, they verbally admitted their participation in the crime. Celso Fernando
acknowledged ownership of the knife recovered at the scene of the crime. These admissions
were, however, made before appellants were informed of their rights.6

822
On the other hand, appellants deny that they had committed the crime and allege that the
extrajudicial confessions were not voluntarily nor validly executed.

Celso Fernando testified that on 24 May 1991, he reported at the slaughter house at around
10:30 in the evening. He left the place at 6:00 a. m. the next day and proceeded to the public
market. There was no untoward incident on that day of 24 May 1991. The following day, or on
25 May, he was also at the slaughter house from 10:00 in the evening until morning of the next
day. Thereafter, at around nine o'clock in the same morning (26 May), he went to Dapitan Street
in Sampaloc to visit Raul Cabintoy and there they were both arrested by Pat. Cariño and
company. They were then brought to the San Mateo Police Station. Later that same day, and
without the assistance of a lawyer, Celso Fernando signed a written confession presented to him
by the police. He had been able to read only the beginning of the confession when the police
insisted that he sign it. On cross-examination, Celso Fernando testified that he did not know
anything about the knife recovered by the police. He had reached Grade V only at elementary
school and could read a little. The police asked him if he wanted to be assisted by a lawyer only
on 27 May 1991, the same day they were brought before Atty. Pozon of the PAO.7

Raul Cabintoy, for his part, testified that on 24 May 1991, he was in the construction site of
Dapitan, Sampaloc, Manila, where he was working. There were no untoward incidents that
happened on the 24th or on the 25th of May, 1991. On 26th of May, Celso Fernando visited him
in the construction site and in the afternoon while they were sleeping, the policemen came and
arrested them. Upon arrival at the San Mateo Police Station, they were put in jail and his co-
inmates forced him to admit committing the offense with which he was charged. When he was
brought outside the cell, he was also forced by the police to admit he had committed the crime.
Cabintoy claimed that the policemen mauled him, although he exhibited no signs of injuries
upon his body. He was not assisted by counsel when he signed the extrajudicial confession. They
were asked to sign the waiver of the right to counsel in the afternoon of 26 May 1991 and then
after signing it, they were brought to the office of Atty. Pozon, where the latter signed the
document. Atty. Pozon explained the document to them and asked them if they still needed a
counsel although they (accused-appellants) "cannot do anything anymore" because they had
already signed the document. Cabintoy denied that he had a wound on his left leg at the time of
the arrest. He was reading and signing the confession at the same time, and because he was
very confused at the time, he could not fully understand the contents of the document.8

The court a quo rendered a decision9 finding both accused Raul Cabintoy and Celso Fernando
guilty of the crime of robbery with homicide.

Accused-appellants Raul Cabintoy and Celso Fernando are now before this Court, asserting that
the trial court had erred in giving credence to their extrajudicial confessions and, accordingly, in
finding them guilty beyond reasonable doubt of the special complex crime of robbery with
homicide.

The record of this case reveals that there were no eyewitnesses to the crime imputed to
Cabintoy and Fernando. The Court also notes that the trial court, in its questioned judgment of
conviction, took into account the extrajudicial confessions of accused-appellants:

As no eyewitness was presented by the prosecution but there was a [sic] written
confession[s] by both accused Raul Cabintoy and Celso Fernando, the admissibility of
such confession[s] determines [sic] the faith [sic] of both accused. . . .

This Court never doubted the voluntariness, truthfulness and exactness of the written
confessions of both accused Raul Cabintoy and Celso Fernando. The claim[s] of both
accused when they testified, that they were threatened or forced to sign the
confession[s] are the usual excuses of an [sic] accused who recanted their confessions
after realizing the gravity of their offense and the penalty that might be imposed on the
crime they have committed.

823
The main issue in this appeal, therefore, is the admissibility of the two confessions executed by
appellants during their custodial investigation by the San Mateo Police. The prosecution claims
that prior to the taking of the extrajudicial confessions, both appellants signed written waivers
of their constitutional rights to remain silent and to be assisted by counsel, in the presence of
Atty. Pozon of the PAO.

After carefully examining the record of this case, the Court finds that these waivers were signed
by Atty. Pozon on the 27th of May, 1991 as indicated by the date written by Atty. Pozon himself
beside his signature. 10 There is no dispute, on the other hand, that the confessions of appellants
were executed in the evening of the 26th of May, 1991. 11 These facts tend to confirm the
testimonies of accused-appellants that they were brought before Atty. Pozon after they had
already signed the extrajudicial confessions, and belie the assertion of the prosecution that the
waivers were signed ahead of the confessions on the same evening of the 26th of May, 1991.
The purported waivers, it should be noted, are set out in the same documents setting out the
respective confessions of the two (2) appellants.

From the foregoing, one is led to the inevitable conclusion that at the time the questioned
confessions were executed, there were no prior valid waivers of their constitutional rights by
Cabintoy and Fernando. This defect alone is sufficient to render the confessions inadmissible in
evidence against accused-appellants. Moreover, the confessions do not indicate that both
accused were represented by counsel during the investigation. The settled rule is that an
uncounselled extrajudicial confession without a valid waiver of the right to counsel — i.e., in
writing and in the presence of counsel — is inadmissible in evidence. 12

We are aware that the trial court noted that the confessions are interlocking and replete with
minor details indicating that they were voluntarily given. This Court, however, has ruled before
in a number of cases that even if the confession of the accused were "gospel truth," if it was
made without the assistance of counsel and without a valid waiver of such assistance, the
confession is inadmissible in evidence regardless of the absence of coercion or even if it had
been voluntarily given. 13

The question may be raised whether the waivers, though in fact executed on 26 May 1991 by
Cabintoy and Fernando, could be deemed to have been subsequently validated by the signature
of Atty. Pozon of the PAO the next day 27 May 1991. We must answer this question in the
negative. There is nothing in the record to indicate that Cabintoy and Fernando intended to
validate retroactively their uncounselled waiver and confession when they were brought into
the office of Atty. Pozon of the PAO at the time Atty. Pozon signed the confession document. To
the contrary, the two (2) appellants here explicitly rejected their extrajudicial confessions when
they testified before the trial court; such rejection makes it very difficult to assume any intent to
own and adopt retroactively their extrajudicial confessions. Any, suggestion that an
uncounselled confession and waiver were subsequently validated by the later signature of
counsel for the accused, must be taken with extreme care lest the constitutional right involved
be eroded into an empty formality.

We conclude, not without reluctance, that the extrajudicial confessions of Cabintoy and
Fernando must be regarded as inadmissible in evidence. It follows that the conviction of
appellants by the trial court must stand or fall on the basis of other evidence of record.

The Solicitor General avers that there exists other evidence of record to warrant the affirmance
of appellants' convictions:

Firstly, the credible testimonies of the arresting policeman in open court clearly reflect
that:

a) the ownership of the knife found at the scene of the crime inside the
5-J taxi of the victim was traced to Celso Fernando [TSN, 8/27/91, pp. 8-
12]. Three butchers who were co-workers of Fernando at the San Mateo

824
 slaughterhouse identified the knife as that owned and used by him at
said slaughterhouse.

b) Pfc. Edilberto Cariño testified that at the time of the arrest of

appellants, he personally noted the existence of a wound on the leg of
Cabintoy, confirming the policemen's earlier suspicion in the course of
their official investigation that one of the robbers sustained a wound at
the hands of the victim. Pfc. Cariño testified that Cabintoy verbally
admitted that he sustained the said wound when the victim hit him with
a screwdriver in the course of the robbery/hold-up [TSN, 8/6/91, pp. 8-
10].

c) Pfc. Cariño testified that both Fernando and Cabintoy, at the time of
their arrest, verbally admitted to the arresting policemen their
participation in the crime, and that it was Cabintoy who stabbed the
victim [Ibid.].

xxx xxx xxx

In this case, the credible testimonies of the public officers aforecited confirm the
existence of the two incriminating circumstances, i.e., the wound on the leg of appellant
Cabintoy and the ownership by appellant Fernandez of the knife recovered from the
crime scene. These, taken together, point unerringly to appellant's guilt [People vs. Agan,
181 SCRA 856]. 14

The Court is not persuaded. Contrary to the claim of the Solicitor General, the knife found at the
scene of the crime was not adequately proved to be owned by Celso Fernando. The testimony of
Pfc. Salvador that in the course of his investigation, three (3) butchers had identified the subject
knife as frequently used by appellant Fernando, is not sufficient to prove such ownership, such
evidence being merely hearsay in nature. 15 Clearly, Pfc. Salvador had no personal knowledge of
the ownership or use by appellant Fernando of the subject knife. Not one of Celso Fernando's
three (3) fellow butchers who had allegedly identified the said knife as belonging to Fernando,
testified in court. Hence, Fernando was deprive of his right to confront his fellow butchers and
to cross-examine them for their truthfulness. The hearsay character of evidence commonly
affects the intrinsic weight and credibility of such evidence. 16

The verbal admissions allegedly made by both appellants of their participation in the crime, at
the time of their arrest and even before their formal investigation, are inadmissible, both as
violative of their constitutional rights and as hearsay evidence. These oral admissions, assuming
they were in fact made, constitute uncounselled extrajudicial confessions within the meaning of
Article III, Section 12 of the Constitution.

The only circumstance left, therefore, against the appellants is the wound that Raul Cabintoy
allegedly had on his left leg at the time of his arrest, as testified to by P/Pfc. Salvador and Pat.
Cariño and as reflected in the joint affidavit of the arresting policemen. This circumstance,
however, does not measure up to proof beyond reasonable doubt. In a long line of cases, this
Court ruled that circumstantial evidence is sufficient for conviction if: (1) there is more than one
circumstance; (2) the facts from which the inferences are derived are proven; and (3) the
combination of all circumstances is such as to produce a conviction beyond reasonable
doubt. 17 In the case at bar, these requisites are not met.

Finally, the trial court in its appealed decision 18 noted that after the commission of the crime
both accused fled and left their usual residences. Appellants, however, explained in open court
that, at the time of their arrest, Raul Cabintoy was a stay-in worker in the construction site in
Dapitan Street and that Celso Fernando was there because the latter was visiting the former at
the time of their arrest. Thus, appellants cannot be regarded as conclusively shown to have fled
from their residences and thereby to have indicated their guilt.

825
 It is, of course, possible that appellants may in fact have committed the robbery with which they
were charged. It is also unfortunate that the work done by police officers and the prosecution
service leading to the arrest, trial and conviction of accused-appellants is rendered inutile for
failure to observe the constitutional rights of persons under custodial investigation. The Court,
however, has no choice on this matter; it is, just as police officers and public prosecutors are,
bound by the provisions of the constitution. More careful observance of such provisions by
policemen and prosecutors is essential if wastage of executive and judicial resources is to be
avoided.

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 77, San
Mateo, Rizal, in Criminal Case No. 1475 is hereby REVERSED and SET ASIDE and appellants are
hereby ACQUITTED of the crime charged, the evidence lawfully before the trial court not being
sufficient to establish their guilt beyond reasonable doubt. No costs.

SO ORDERED.

Romero, Melo and Vitug, JJ., concur.

[G.R. No. 77777. February 5, 1990.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. DOMINGO BAGANO Y SALI-EN, Accused-Appellant.

The Office of the Solicitor General for Plaintiff-Appellee.

Ernesto Wagang for Accused-Appellant.

DECISION

BIDIN, J.:

Before Us on appeal is a decision * of the Regional Trial Court of Baguio, Br. IV, in Criminal Case No.
2472-R, convicting the accused appellant of violation of Republic Act No. 6425, as amended, otherwise
known as the Dangerous Drugs Act, the decretal portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the court finds the accused, Domingo Bagano y Sali-en, guilty beyond reasonable doubt
of the crime charged, and hereby imposes on him the penalty of life imprisonment, as well as a fine of
Twenty Thousand Pesos (P20,000.00). The ten (10) kilos of marijuana are ordered forfeited in favor of
the government which shall be transmitted to the Dangerous Drugs Board, through NBI Sub-office
Baguio, as custodian, for proper disposition.

"SO ORDERED."cralaw virtua1aw library

The facts, as presented by the Solicitor General, are as follows:jgc:chanrobles.com.ph

"On August 1, 1985, Atty. Lolito Utitco of the National Bureau of Investigation (NBI) in Baguio City and
Steven F. Bostick, a special agent of the U.S. Air Force at Clark Air Base, arranged a "buy-bust" operation
against appellant who was a suspected narcotics dealer. The plan was for Bostick to pose as buyer. A
civilian informer named Clayton Emateo was to aid Bostick by introducing him to Appellant.

"At around 2:45 in the afternoon of the same day, Bostick and Emateo proceeded to the residence of
the latter in Baguio City to meet appellant who was there waiting. They were followed by an NBI
surveillance team. Upon reaching their destination, Emateo introduced appellant and an unnamed
friend to Bostick. Shortly thereafter, negotiations for the purchase of ten (10) kilos of marijuana began
between Bostick and appellant, with Emateo acting as interpreter. Bostick and appellant finally agreed
on P800 .00 as the price per kilo of the marijuana. The group then proceeded to appellant’s house at

826
Irisan, Benguet, where he kept the marijuana. They were all the time being trailed by the NBI team. At
Irisan, appellant left Bostick and Emateo in the car. He went back to them after about fifteen minutes,
carrying a large white nylon sack (Exhibit "B"). Bostick opened the trunk of the car and appellant placed
the sack inside. Bostick opened the sack and saw several packages containing marijuana. Bostick told
appellant that he will pay for the marijuana after it has been weighed in his hotel. Appellant agreed. On
the way back to his hotel in Baguio City, Bostick activated the beeper which signalled the NBI team
following them that the transaction had taken place. The NBI team then blocked Bostick’s car and
arrested appellant and Emateo."cralaw virtua1aw library

Based on the foregoing, an information for violation of RA 6425, otherwise known as the Dangerous
Drugs Act, was filed against appellant alleging:chanrob1es virtual 1aw library

x x x

"That on or about the 1st day of August, 1985, in the City of Baguio, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, without any authority of law, did then
and there willfully, unlawfully and feloniously attempt to sell to another ten (10) kilos, more or less, of
dried marijuana leaves, a dangerous drug, for P800.00 per kilo, in violation of the afore-cited provision
of law."cralaw virtua1aw library

Upon arraignment, appellant pleaded not guilty. His earlier motion to admit bail was deferred and later
denied. Thereafter, trial on the merits ensued. On August 9, 1986, the trial judge rendered the assailed
decision (Rollo, pp. 19-36) sentencing appellant, among others, to reclusion perpetua. Hence, this appeal.

Appellant denies any knowledge anent the ownership and sale of marijuana to Bostick and in support
thereof, he declared that:jgc:chanrobles.com.ph

"(H)e farms at Irisan, Baguio City; on August 1, 1985, at around 3:00 o’clock in the afternoon, he went to
the house of Clayton Emateo, located along Bonifacio St., to collect the amount of P4,000.00 which the
latter borrowed from him on July 1, 1985; on this latter date Clayton went to him and pleaded for the
loan, saying that he needed it to replace the money he took from his wife which he lost in gambling;
Clayton was at his residence when he saw him on August 1, 1985; Clayton told him to wait for his visitor
from whom he would get the money to pay his debt; the American visitor arrived, and he was
introduced to him in English, as Steven; after the introduction, they rode in the car of the American and
he was told by Clayton that they were proceeding to Irisan to get the bag which Clayton would give to
the American as a gift; Clayton sent him to get the bag because he did not want to get wet; he went to
get the bag and placed it in the car of the American; Clayton asked him to ride with them again; while
they were maneuvering the car towards Baguio, two cars stopped and one of the passengers (NBI agent)
came out, brought out his gun and pointed it at him;" (Decision, p. 11; Rollo, p. 29; Emphasis supplied).

In this appeal, appellant contends that the lower court erred:jgc:chanrobles.com.ph

"1. IN FINDING THAT THE APPELLANT AGREED TO SELL TEN (10) KILOS OF MARIJUANA TO STEVEN
BOSTICK WHEN IN FACT, THE APPELLANT HAS NO KNOWLEDGE OR DOES NOT KNOW ANYTHING ABOUT
THE ALLEGED MARIJUANA SALE;

"2. IN NOT HOLDING AS HEARSAY THE ALLEGED CONVERSATION BETWEEN BOSTICK AND APPELLANT
WHEN IN FACT, CLAYTON EMATEO, THE CIVILIAN INFORMANT WHO INTERPRETED THEIR
CONVERSATION WAS NEVER PRESENTED TO TESTIFY;

"3. IN APPRECIATING THE ‘BAG’ AND NOT SACK AGAINST APPELLANT THAT WHICH CLAYTON OWNED
AND DEPOSITED IN THE QUARTER OF THE APPELLANT AT IRISAN THAT 10:00 A.M. OF AUGUST 1, 1985
WHEN IN FACT, EVEN BOSTICK LIKEWISE REFERRED TO THE SACK AS ‘BAG’ MANY TIMES IN HIS
TESTIMONY;

"4. IN NOT APPRECIATING THE DEFENSE OF THE APPELLANT THAT IT WAS CLAYTON, THE CIVILIAN
INFORMER, WHO OWNS THE MARIJUANA IN QUESTION." (Appellant’s Brief, pp. 12; Rollo, pp. 49-50)

827
It is the contention of the prosecution that appellant was apprehended as a result of a "buy-bust"
operation which was conducted on the strength of an information supplied by a certain Clayton Emateo.
It is alleged that according to the informer, appellant would only sell to a foreigner, preferably an
American. Immediately, Atty. Utitco, the NBI Chief of Baguio City, sought assistance from the Clark Air
Base which in turn sent Steven Bostick for the purpose.

The "buy-bust" operation involved Bostick and Emateo to proceed to the latter’s residence and therein
meet with the suspect for the purchase of marijuana. Acting as the "poseur" buyer, Bostick testified that
he was provided counterfeit money by the NBI which was combined with his own US $200.00 converted
to pesos because appellant only accepts payment in local currency (TSN, November 7, 1985, p. 16).

Upon arrival at Emateo’s residence, Bostick was introduced by Emateo to appellant and a certain Arman
Perez. As to how the "buy-bust" transaction was initiated may be gleaned from the following testimony
of Bostick:.

FISCAL CARBONELL:jgc:chanrobles.com.ph

"Q What was the plan then?

"A The plan that I was to go with the informer to the informant’s residence and meet with the suepct
(suspect) who is supposedly waiting there for us and I was to try and arrange for the purchase of
marijuana.

x x x

"Q Who started the conversation?

"A I started through the informant translating what I was saying to Domingo.

"Q What did you say to your informant which was translated to Domingo?

"A Due to the prior arrangement or agreement that we had, I told him that I wanted to purchase ten
(10) kilos of marijuana.

"Q And this statement of yours to the effect that you wanted to buy ten (10) kilos of marijuana, to
whom was it directed?

"A It was directed to Mr. Domingo.

"Q But you said Clayton participated. What was the participation of Clayton?

"A He was speaking for me because because I wasn’t sure Domingo understood what I was saying
because of the language.

"Q Is it your testimony that your statement was translated into the dialect by Clayton to Domingo?

"A Yes, sir.

COURT:jgc:chanrobles.com.ph

"Q What dialect was that: Do you know?

"A No I have no knowledge.

x x x

FISCAL CARBONELL:jgc:chanrobles.com.ph

828
"Q Now, when your statement was translated by Clayton to Mr. Domingo to the effect that you wanted
to purchase marijuana, do you know if Domingo made any answer?

"A I was told by the informant that there will be no problem. The ten kilos was ready.

ATTY. WAGANG:chanrob1es virtual 1aw library

I object to that. That would be hearsay.

x x x

FISCAL CARBONELL:jgc:chanrobles.com.ph

"Q What again was that answer which Domingo said or uttered?

"A I was told by Clayton that ten (10) kilos would be no problem.

"Q And who said that?

"A It was told to me by Clayton because I don’t understand the language on which they talked.

x x x

"Q Now, who quoted the price?

"A I was told it will cost one thousand (P1,000.00) pesos per kilo, which I didn’t agree.

COURT:jgc:chanrobles.com.ph

"Q Did they speak in English or in another dialect?

"A They spoke in the dialect.

"Q So, it was again interpreted to you by Clayton.

"A Yes, sir.

(TSN, November 7, 1985, pp. 17-20; Emphasis supplied).

Evident from the foregoing is the fact that Bostick’s testimonies, as principal witness for the prosecution,
are mere translations and or interpretations of what the appellant supposedly said in the dialect to and
interpreted by informant Emateo. As such, they are pure hearsay.chanrobles law library

With the exception of that portion of Bostick’s testimony that he saw the accused-appellant carry the
sackful of marijuana, Bostick testified not on his personal knowledge regarding the alleged ownership
thereof and the appellant’s purported offer to sell the same. Bostick never understood the Kankanai
dialect spoken by appellant and Emateo and is therefore not qualified to testify against appellant in the
imputation of the crime charged. Thus, "where a witness is offered to testify to the statements of
another person, spoken in a language not understood by him, but translated for him by an interpreter,
such witness is not qualified, because he does not speak from personal knowledge. All that he can know
as to the testimony which is in fact given in such a case is from the interpretation thereof which is given
by another person." (F. Wharton, Evidence in Criminal Cases 697-698 [11th ed., 1935]).

Indeed, a confession cannot be received in evidence by the testimony of a witness who, although
present when it was made, learned its purport through an interpreter (US v. Chu Chio, 8 Phil. 269
[1907]).

829
The impropriety of introducing the testimony of Bostick is plainly evident. What the prosecution should
have done was to present Emateo himself to testify on what actually transpired between appellant and
Bostick and thereafter be cross-examined. Yet, the court a quo chose to ignore appellant’s constitutional
right to meet the witnesses face to face (Constitution, Art. III, Sec. 14 [2]). In an attempt to circumvent
said right, prosecution witness Atty. Utitco reasoned:chanrob1es virtual 1aw library

FISCAL CARBONELL:jgc:chanrobles.com.ph

"Q Now, Atty. Utitco, is there any possibility for you to bring before this court this Clayton who was your
informer?

"A I do not think that is possible for the following reasons; First, we do not usually expose our
informants in public, second, we do not know where he is staying and third, we do not keep in constant
contact with this informer. He only comes to the office when there is work to do As a matter of fact
since this operation was accomplished, I have never seen him again. (TSN, December 4, 1985, p. 10).

Atty. Utitco’s revelation that he knew nothing of his supposed informant’s background is rather
disturbing. Appellant’s limb and liberty at stake, Utitco discarded all what a prudent and thinking man
would have taken in order to establish the veracity of a story of one virtually unknown to him. Appellant
should have been, at the least, placed under surveillance (See People v. Periodica, Jr., Et Al., G.R. No.
73006, September 29, 1989).

The Court is not unaware of the policy behind non-disclosure of an informant’s identity and would
generally uphold the exercise of such privilege as the circumstances may warrant. In the instant case,
however, said privilege cannot be invoked given the factual setting that led to the incarceration
of Accused-Appellant. For one thing, the identity and even the address of the supposed informant are
already known to appellant. More, he was an active participant of the crime charged and is in fact the
person whom appellant insists is the owner of the prohibited merchandise. In point of fact, the informer
(Emateo) was arrested together with appellant by the NBI team after the latter had blocked Bostick’s car.
If indeed Emateo is an informer and not the owner of the prohibited drug, why was he arrested?
Nonetheless, whatever reason the prosecution may have had in shielding the informant vanished and
ceased to exist by the time his identity was made public in the course of the trial by the prosecution
witnesses themselves.

As pointed out by the appellant, the informant’s failure to take the witness stand to confirm the
correctness of his interpretations not only rendered the testimonies of Bostick as hearsay and therefore,
inadmissible in evidence, but also deprived appellant of his right to cross-examine him (Appellant’s Brief,
pp. 11-12; Rollo, pp. 59-60).chanrobles virtual lawlibrary

"The right of cross-examination ‘is a substantial right, the preservation of which is essential to a proper
administration of justice, and extends to all matters within the knowledge of the witness, the disclosure
of which is material to the controversy.’" (Crosby v. State 82 S.E. 2d 38 [1954]; citing News Publishing Co.
v. Butler, 22 S.E. 282 [1985]; Richards v. Harpe 155 S.E. 85 [1930]).

Emateo’s testimony is not merely corroborative and cumulative and hence, may be dispensed with
(People v. Extra, 72 SCRA 199 [1976]; People v. Cerelegia, 147 SCRA 538 [1987]; People v. Capulong, 160
SCRA 533 [1988]; People v. Asio, G.R. No. 84960, September 1, 1989), but is direct and material to the
defense of appellant who claims innocence of the offense imputed against him and is entitled to have
the former take the witness stand (Appellant’s Brief, pp. 11-12; Rollo, p. 60; TSN, November 8, 1985, p.
22), considering appellant’s disclaimer of ownership of the prohibited drug.

In People v. Rojo (G.R. No. 82737, July 5, 1989), the Court, in acquitting the accused-appellant, stamped
a note of disapproval on the prosecution’s refusal to present the supposed informant whose identity has
already been known, to wit:jgc:chanrobles.com.ph

"Thus, the identity of the informant was known to the appellant all the time and when immediately
thereafter the appellant was apprehended and arrested by the police officers and the informant was not

830
similarly taken into custody, the only logical conclusion is that the appellant right then and there found
out that he was the victim of an entrapment and that the informant was in collusion with the police
authorities.

"There is, therefore, no reason why the prosecution could not and did not present the informant as a
prosecution witness. He is the best witness to establish the charge against the appellant who denies the
charge" (citing Pp. v. Ale, 145 SCRA 50, [1986] where the accused was likewise acquitted). (Emphasis
supplied)

In an earlier case of People v. Caboverde (160 SCRA 550 [1988]) where the prosecution refused to
identify the informer, the Court stated:jgc:chanrobles.com.ph

"The witnesses for the prosecution refused to divulge the identity of said informer, who could have
been a very vital corroborating witness to their testimonies and thus strengthen the position of the
prosecution. Prosecution maintained that to expose the identity and to bring this informer to court as
witness would pose grave danger to the life of such informer. What danger did the prosecution fear,
when the identity of said informer and his involvement in the entrapment of appellant was already
made known to the appellant during the alleged exchange of the marijuana stuff and money." (Emphasis
supplied)

Non-presentation of an informer is a privilege that has its own inherent limitation — that of fairness in
the administration of criminal justice. Thus, where the disclosure of an informer’s identity is relevant
and helpful to the defense of the accused, or is essential to a proper disposition of the case, the privilege
must give way (Wilson v. United States, 59 F. 2d 390 [1932]).

Trial courts must always bear in mind that the right to meet the accuser and to have him examined is a
fundamental right. The constitution (Section 14 [2], Art. III) so mandates and they cannot do otherwise,
especially so in instances where the party sought to be presented and examined possesses vital
information essential to the defense in vindicating the accused’s plea of innocence. Such violation of
appellant’s fundamental right calls for the reversal of his conviction. Thus:jgc:chanrobles.com.ph

"Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and
helpfull to the defense of an accused, or is essential to a fair determination of a cause, the privilege
must give way. In these situations, the trial court may require disclosure and, if the Government
withholds the information, dismiss the action (Roviaro v. United States, 353 US 53, 1 L ed 2d 639 [1957]).

In the case at bar, while the identity of the informer is disclosed, nevertheless, the prosecution failed to
present him as a witness on the dubious assertion that his whereabouts are unknown. As no subpoena
appears to have been issued by the prosecution to the said informer, the presumption that evidence
willfully suppressed would be adverse if produced (Section 5 [e], Rule 131) arises.

Emateo’s non-production as a witness could have been excused had he merely played the part of a true
informer. An informer is one who communicates knowledge of someone having committed or about to
commit a crime to the proper authorities who by themselves, acting independently, may obtain the
evidence necessary for the prosecution of the offender. On the contrary, he did more than that. He
played a substantial part in the act complained of and is in fact claimed by the appellant as the real
owner of the subject marijuana.

The case of Sorrentino v. U.S. (163 F. 2d 627 [1947]), provides the distinction between one who played
the part of a mere informer and a decoy. There, the defendant was charged for an illegal sale of opium
in favor of a person, the identity of whom the US Government claims to be confidential. Objections as
regards questions seeking to ascertain his identity were sustained by the trial court on the ground that it
will violate the privilege of withholding the identity of informers. In reversing the trial court, it was held
that:jgc:chanrobles.com.ph

"If the person whom Grady called an informer had been an informer and nothing more, appellant would
not have been entitled to have his identity disclosed; but the person whom Grady called an informer
was something more. He was the person to whom appellant was said to have sold and dispensed the

831
opium described in the indictment. Information as to this person’s identity was therefore material to
appellant’s defense . . . ."cralaw virtua1aw library

The Solicitor General, however, contends that appellant’s disclaimer of having no knowledge about the
sale of marijuana is not worthy of credence. According to him, the best proof is the fact that appellant
delivered a sackful of marijuana to Bostick and that the sale by appellant of marijuana to Bostick is
shown by evidence independent of Clayton Emateo’s testimony. (Appellee’s Brief, p. 7; Rollo, p. 125).

We disagree. Appellant’s denial of the ownership of marijuana and his testimony that he took the sack
the contents of which turned out to be marijuana from the place where Emateo previously deposited it
because he was only requested by Emateo to do so (TSN, March 20, 1986, pp. 7-8; March 31, 1986, pp. 8
& 14), was never contradicted by the prosecution. Thus:jgc:chanrobles.com.ph

"ATTY. WAGANG:jgc:chanrobles.com.ph

"Q You made mention of a gift of bag which Clayton will give as a gift to that American; where did this
bag come from?

"A He, Clayton Emateo brought that bag earlier that morning of the same day.

x x x

"Q And what happened when you reached Irisan?

"A When we reached Irisan it was raining.

Q And were you able to get that bag left?

"A Clayton sent me to get the bag because that time it was raining and they did not want to be wet.

"Q Where did you bring that bag?

"A I went to get the bag and loaded the bag on the car of that American."cralaw virtua1aw library

(TSN, pp. 7-8, March 20, 1986).

On cross-examination:jgc:chanrobles.com.ph

"FISCAL CARBONELL:jgc:chanrobles.com.ph

"Q Is it your testimony that in the morning of August 1, 1985 Clayton Imateo came to your residence
driving his taxicab and brought the bag to your residence?

"A Yes, sir.

x x x

"Q Is it your testimony that when Clayton Imateo came (to) your residence at Irisan in the morning of
August 1, 1985 he just deposited the bag at your residence without conversing to you?

"A He told me that he has no money at that time by(u)t he had to wait for his visitor whom he will give
that bag and from whom he will get money to pay me.

(TSN, pp. 8-9, March 31, 1986).

x x x

832
"Q Now, immediately after the American parked his vehicle, you alighted from the vehicle, is that
correct?

"A Yes, I was sent by Clayton to go to our quarters to get the bag because it was raining.

"Q Now, is it your testimony Mr. Witness that Clayton just sent you to fetch the bag from a place which
is about ten minutes walk from the place where the vehicle was parked when in fact he was the one
who has a debt of gratitude to you because of the P4,000.00 you lent him?

"A Yes, sir.

"Q You readily acceded to that order for you to go and get the bag from your quarters?

"A Yes, because when I saw him (h)e was well-dressed and he was wearing leather shoes."cralaw
virtua1aw library

(TSN, pp. 14-15, March 31, 1986; Emphasis supplied).

The prosecution witnesses’ bare assertions, including that of Bostick’s, anent appellant’s delivery of the
sack/bag of marijuana cannot, by itself, indicate ownership nor even illegal possession as contemplated
by law under the circumstances in the absence of any other evidence.chanrobles.com:cralaw:red

Neither is there any reason for us to believe, as advanced by the Solicitor General, that appellant even
acknowledged ownership of the seized marijuana by identifying them and affixing his signature on the
back and on each and every parcel inside it (sic) (Appellee’s Brief, p. 8; Rollo, p. 126). Appellant testified
that he affixed his signature because he was asked and forced to do so (TSN, March 20, 1986, p. 11;
March 31, 1986, pp. 18 & 22). Nowhere in the cited testimony of Atty. Aurellado relied upon by the
prosecution (Appellee’s Brief, p. 8; Rollo, p. 126; TSN, November 8, 1985, pp. 9-15) was there any
indication that appellant did acknowledge ownership of the prohibited merchandise.

Appellant’s signature appearing on the sack and individual bundles containing marijuana do not signify,
much less evidence, guilt for they are mere procedural steps normally undertaken after effecting arrest
(People v. Sariol, G.R. No. 83809, June 22, 1989). Furthermore, it appearing that appellant was not
informed of his right to counsel at the time he affixed his signature, the same has been obtained in
violation of his right as a person under custodial investigation for the commission of an offense and is
therefore inadmissible (Constitution, Art. III, Sec. 12 [1], [3]).

And there is the question of money involved. While the prosecution took time to prepare counterfeit
money to the extent that Bostick even shelled out his own, the same turned out to be not really
necessary it appearing that appellant never even got hold of it, much less saw the same. It defies
credulity that in a carefully orchestrated "buy-bust" operation such as in the case at bar, no money
changed hands between the alleged buyer and seller. It may then be asked, was there really an attempt
to sell on the part of appellant of a merchandise he does not even own?

It is a cardinal rule in this jurisdiction that in order to merit conviction, the prosecution must rely on the
strength of its own evidence and not on the weakness of evidence presented by the defense. An
accused must always be deemed innocent until the contrary is proved beyond reasonable doubt. In the
instant case, the prosecution failed to so establish the guilt of herein Appellant.

WHEREFORE, the challenged judgment is REVERSED and appellant is hereby ACQUITTED on the ground
of reasonable doubt.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Feliciano and Cortes, JJ., concur.

833
G.R. No. 140762 September 10, 2003

PEOPLE OF THE PHILIPPINES, appellee,

vs.
PO3 ROGER ROXAS Y CABASAG, appellant.

VITUG, J.:

The Regional Trial Court of Quezon City, Branch 103, in Criminal Case No. Q-96-65242, found appellant
Roger Roxas y Cabasag guilty beyond reasonable doubt of the crime of murder and imposed on him the
penalty of death for the killing of Lorna Maceda Puno. The information under which he was arraigned,
tried and convicted, read:

"That on or about the 8th day of March, 1996, in Quezon City, Philippines, the above-named
accused did then and there willfully, unlawfully and feloniously with intent to kill, qualified by
treachery and by taking advantage of superior strength, attack, assault and employ personal
violence upon the person of LORNA PUNO nee MACEDA, by then and there shooting her with
the use of a hand gun, hitting her on her left forehead, thereby inflicting upon her serious and
grave wounds which were the direct and immediate cause of her untimely death, to the damage
and prejudice of the heirs of said Lorna Puno nee Maceda."1

Following appellant’s plea of "not guilty" to the crime charged, the prosecution and the defense
presented their respective versions of the case.

Joelyn B. Maceda, a security guard at the First Unity Textile Mills in Novaliches, Quezon City, stayed with
her sister, Lorna Maceda Puno, in San Roque, Bagong Pag-asa, Quezon City, in a one-storey structure
with the front door leading to the kitchen and with two steps leading to the sala. Joelyn shared the
house with Lorna and her husband, the couple’s five-year-old son, Jonas, and a niece. Lorna, like Joelyn,
was a security guard at the Citibank in Makati City. When on duty, the sisters were issued caliber .38
service firearms that they were not, however, allowed to bring home and, instead, had to entrust each
time to a reliever. Although the sisters were trained to handle firearms, they, upon the other hand, only
had minimal instruction on self-defense.

Between nine o’clock and nine-thirty on the evening of 8 March 1996, Joelyn was washing clothes in
front of the door of their house, lighted by a fluorescent lamp, when she saw Lorna coming home from
work in her type B uniform and carrying a brown bag. From a distance of barely four to five meters,
Joelyn could see Lorna running away from appellant. Appellant, apparently drunk, had no clothes from
waist up, was wearing shorts and carrying a gun. When Joelyn asked the pale and trembling Lorna why
she was running, the latter replied, "Lyn, Lyn, enter, close the door, a man (is) following me!" (Lyn, Lyn,
pasok, sarado ang pinto, may sumusunod sa akin lalaki). Joelyn promptly closed the door but appellant
was able to kick it open. Joelyn, her forehead hit by the door, was pushed aside. Appellant grabbed
Lorna’s bag, opened it and, apparently not finding what he could have been looking for, hurled the bag
to the floor (binalibag po niya ang bag sa sahig). Appellant asked Lorna, "Why did you run? Why did you
not mind me?" (Bakit ka tumakbo? Bakit ‘di mo ‘ko pinansin?). Lorna answered, "I did not hear you."
Joelyn tried to hold the hand of appellant but he pushed her hand away. Appellant then shot Lorna with
a caliber .45 gun with its muzzle just two feet away from Lorna’s face. Lorna fell on the floor with half of
her body outside the door and the other half inside the house. Joelyn held her sister. Lorna was still alive.
A neighbor responded to Joelyn’s cries for help. Lorna was brought to the hospital. At six o’clock the
following morning of 9 March 1996, Joelyn went to Camp Karingal to report the incident. Later, Joelyn,
accompanied by Randy who took down her statement at the camp, went to the East Avenue Hospital
where Lorna had been taken.

Melinda Taliño was fetching water from a nearby artesian well (poso) on the evening of 8 March 1996.
She proceeded to the house of Lorna from where a gunshot rang out. She saw the bloodied Lorna on the
floor just as appellant, holding a gun, was about to run out of the house (patakbo). Melinda shouted for
help. Nobody dared to immediately respond because appellant was still at the corner of an alley, a short
distance away, pointing and swaying a gun. Appellant’s wife and a certain Jun were seen trying to pacify

834
him. Jun tapped appellant’s hand that caused the gun to fall. Appellant’s wife picked up the gun and hid
it behind her. Appellant’s wife and Jun then pulled appellant away.

Lorna’s husband, Joseph Puno, a security guard at the Broadway Centrum in Quezon City, learned of the
incident at five o’clock on the morning of 9 March 1996 when he returned home from work. There were
bloodstains around the house. Appellant, who lived near the basketball court around a hundred meters
away, was Joseph’s kumpare. Joseph had known appellant, who, along with the latter’s wife, usually
managed the "BSDO" seminar that Joseph attended. Joseph Puno surrendered a caliber .45 empty shell
which he had found at his house to PO1 Florencio Escobido. The Chief of the PNP Criminal Investigation
Division in Camp Karingal forwarded the empty shell to the Director of the PNP Crime Laboratory Service
in Camp Crame. In Firearms Identification Report No. FAID-143-96, P/Inspector Reynaldo Dimalanta de
Guzman stated that the empty caliber .45 shell marked "JAP" "was fired from a caliber .45 pistol having
six (6) lands and six (6) grooves twisted to the left."2 De Guzman could only conclude that the empty
shell was fired from a .45 caliber pistol. The pistol was not recovered.

Lorna, only 27 years old, died three days after she was shot. Dr. Ma. Cristina B. Freyra, Police Senior
Inspector and Medico-Legal Officer at the PNP Central Crime Laboratory of the Northern Police District
Command in Kamuning, Quezon City, confirmed that Lorna had suffered from a gunshot wound at the
left temporal region with tattooing evident and a contusion on the left peri-orbital region and multiple
abrasions on the left arm. She opined that the tattooing around the wound would attest to the fact that
the distance between the muzzle of the gun and the "point of contact" could have barely been about
two feet.

Appellant, a member of the Special Weapons and Tactics (SWAT) team of the Philippine National Police,
did not deny his presence in the vicinity of the crime scene but he presented a different version of the
incident. On the late afternoon of 8 March 1996, about six o’clock, he was playing basketball
in Barangay Bagong Pag-asa, San Roque II, up until an hour later. Shortly thereafter, he had dinner. He
and his wife then visited their comadre, Yolanda Daraman, whose husband, a seaman, was expected to
return home. At Yolanda’s house, that evening, the couple was told that Yolanda’s husband had not yet
arrived. On their way home, appellant noticed a suspicious-looking person who was high on drugs. The
bulge on the man’s waist appeared to him to be a tucked gun. Appellant approached the man, who was
not from the place, to verify and to conduct a body search but just as he drew near, the man ran away.
Appellant chased the man and as he did so, he passed by two barangay tanods, Inocencio Datu and Rudy
Limbaga, who were asked by his wife to extend help by meeting the man at the other side of the area
(salubungin ninyo sa kabila). Appellant saw the man enter a house by kicking open its door. Appellant
fired his service .38 caliber gun. He pushed the door, already half-open, but Lorna Puno sprayed tear gas
on him, hitting both his eyes and momentarily losing his sight. Appellant soon heard a gunshot from
inside the house. Appellant dove face down to seek cover. In the process, he lost control of his firearm.
He shouted for help and heard the voices of his wife and the two barangay tanods. The barangay tanods
brought him back to his house where he was informed that Lorna Puno had been shot. His wife
administered first aid to his eyes but, because his eyes were not healed, he was brought the following
morning by his wife to the Quezon City General Hospital.

From the hospital, appellant proceeded to Camp Karingal to clear his name after having heard that he
was being implicated in the shooting incident. Appellant was disarmed by his commanding officer and
instructed to subject himself to an investigation. The next day, as so directed, he came back and
restricted himself to camp. His commanding officer later brought him to the Investigation Division to
surrender him for investigation. Asked to give a statement, appellant told the investigator that he would
wait for his lawyer. From the 10th to the 14th of March, no case was filed against appellant. On the 15th of
the same month, he was presented to the inquest fiscal.

The trial court, convinced of the "lack of probity and credibility of the defense path taken by the
accused,"3 found appellant guilty of the crime of murder. It ruled that the commission of the crime was
qualified by "abuse of superiority" because "Lorna was unarmed when shot on the head by the accused
which single shot caused her instantaneous death."4 It appreciated against appellant the aggravating
circumstance of dwelling since both the prosecution and the defense evidence showed that Lorna was
fatally shot inside her house. The trial court disposed of Criminal Case No. Q-96-65242 thusly:

835
 "ACCORDINGLY, judgment is hereby rendered finding the accused PO3 ROGER ROXAS y Cabasag
GUILTY beyond reasonable doubt as Principal of the crime of MURDER, as charged herein, as
defined and penalized in the Revised Penal Code, qualified by taking advantage of superior
strength and, with the aggravating circumstance of dwelling, he is hereby sentenced to suffer
the penalty of DEATH.

"On the civil aspect, accused Roger Roxas y Cabasag is ordered to pay the heirs of Lorna Puno y
Maceda the sum of P50,000.00 as indemnity damages and P100,000.00 as exemplary damages.

"The ARMSCOR caliber .38 revolver with serial number PO7161 (Exhibit M) shall be forwarded to
the PNP Firearms and Explosives Division, Camp Crame, Quezon City for safekeeping in
accordance with law.

"Pursuant to law and the Rules of Court, let the entire records of this case be forwarded
forthwith to the Honorable Supreme Court for automatic review."5

Appellant assails the credibility of prosecution witnesses Joelyn B. Maceda and Melinda Taliño. But, as it
has so often been stated by this Court, the issue of credibility of witnesses is a question for the trial
court basically to resolve. The rule is logical and well founded. It is the trial judge which has all the
opportunity to observe witnesses when they testify before him and for him to then draw the line
between fact and falsehood. An appellate court thus would find itself relying mostly on the assessment
of the trial court in this respect. The records of this case do not disclose any reason for this Court to now
deviate from this long-settled doctrine.

Appellant contends that the prosecution has suppressed evidence in failing to present the affidavit of
Melinda calling attention to the presumption that "evidence willfully suppressed would be adversed (sic)
if produced." The contention is a futile attempt to invoke exoneration. Ex-parte affidavits, which are
often incomplete and inaccurate, are scarcely depended on and will certainly not prevail over credible
statements of a witness on the stand,6 particularly when the defense has had the full opportunity to
cross-examine such a witness.

Appellant’s argument that the trial court disregarded "the law on ballistics" when it ignored the fact that
the slug found was that of a caliber .45 gun, not that of a .38 caliber handgun, like the service revolver of
appellant, hardly could be material. It would only show that it was not appellant’s service revolver which
was used in the commission of the crime. With the positive identification by eyewitness Joelyn of
appellant as being the perpetrator of the crime, the non-presentation by the prosecution of the weapon
used in committing the crime would not at all be fatal.7 Joelyn witnessed at close range the killing of her
sister. Her testimony, an eyewitness account, was found credible by the trial court.

The relationship of Joelyn to the victim would not be a reason to either discredit her or disbelieve her
testimony; in fact, it should be unnatural for an aggrieved relative to falsely accuse someone else other
than the actual culprit himself.8 Nothing was shown to indicate in any way that Joelyn was impelled by
improper motive in testifying against appellant that should thus add to her credibility.9

In asseverating that the qualifying circumstance of abuse of superior strength was not proven at the trial,
appellant would premise his argument on the contention that the victim used teargas to immobilize him.
There was, however, no convincing proof that the victim had indeed used teargas on appellant. The
hospital record presented in court by Pastora Barte, the records officer of the Quezon City General
Hospital, that appellant was treated for eye irritation and for abrasions on his right hand,10 was not
attested to by any supposed attending physician. All that Pastora could testify on was that a certain Dr.
Fernandez and one Dr. Osial, who allegedly attended to appellant, were no longer connected with the
hospital. Pastora admitted that she had no personal knowledge about the contents of the record;
neither could she attest to the truth and veracity of its contents. A medical certificate would be hearsay
and inadmissible in evidence without the affirmation or confirmation on the witness stand of the
physician who prepared it11 and corroborated by the testimony of the physician who had examined the
patient.12

836
The trial court described appellant as being a "big hulk of a man," 5’7" in height, and "muscularly bulky."
At the witness stand, when Joelyn stood to identify appellant, the prosecutor noted for the record that
appellant was "very much taller than the witness" who stood at 5’3" in height. According to Joelyn,
Lorna was only about 5’5" in height, a fact that the defense did not dispute. The case could bring to
mind People v. Quesada.13 In that case, the Court, noting that the appellant was a "robust, middle-aged
man" while the deceased was a woman of about 22 years of age, appreciated the aggravating
circumstance of taking advantage of superior strength when the malefactor stabbed the deceased
"while she was trying to escape from his grasp, and unable to repel the attack." In this instance, Lorna
was 27 years old trying to escape from appellant, an armed "hulk of a man," 5’7" in height, and around
33 years of age,14 when she was senselessly shot at close range. Still in another case, this Court said: "In
several cases, we have held that an attack made by a man with a deadly weapon upon an unarmed and
defenseless woman constitutes the circumstance of abuse of that superiority which his sex and the
weapon used in the act afforded him, and from which the woman was unable to defend herself. This is
the exact scenario in this case."15

In imposing the death penalty, the trial court appreciated the aggravating circumstance of dwelling that
was not alleged in the information.

The Solicitor General, supporting the stand taken by the trial court, would invite a revisit of the
Mauricio16 rule; he urges:

"We respectfully pray that this Honorable Court take a second look at its ruling in Mauricio and
other cases retroactively applying Rule 110, Section 9. The rule prevailing before the effectivity
of the new Rules of Criminal Procedure was that generic aggravating circumstances, even if not
alleged in the information, may be appreciated if proven at the trial. Prosecutors and trial judges
relied on this former rule. With all due respect, the retroactive application of the new rule is
manifestly unfair to the prosecutors and trial judges who relied in utmost good faith on the old
rule.

"On March 27, 2000, a mere nine (9) months before the new Rules of Criminal Procedure took
effect on December 1, 2000, this Honorable Court in People v. Mitra, 328 SCRA 774, 792-793
rejected the contention that generic aggravating circumstances should be alleged in the
information."17 (Emphasis supplied)

With all due respect to the Solicitor General, the Court finds it difficult to reconsider its pronouncement
in Mauricio, which has since been reiterated in several cases. Section 9, Rule 110, of the new Rules on
Criminal Procedure, provides:

"SEC. 9. Cause of the accusation. – The acts or omissions complained of as constituting the
offense and the qualifying and aggravating circumstances must be stated in ordinary and
concise language and not necessarily in the language used in the statute but in terms sufficient
to enable a person of common understanding to know what offense is being charged as well as
its qualifying and aggravating circumstances and for the court to pronounce judgment."

In Mauricio,18 the Court has explained the reason for the retroactive application of the rule.

"The use of the word `must’ indicates that the requirement is mandatory, therefore failure to comply
with Sec. 9, Rule 110, means that generic aggravating circumstances, although proven at the trial,
cannot be appreciated against the accused if such circumstances are not stated in the information. It is a
cardinal rule that rules of criminal procedure are given retroactive application insofar as they benefit the
accused." (Italics supplied.)

Even beyond that, as so expressed above, is the overriding principle that an accused has the unfettered
right "to be informed of the nature and cause of the accusation against him."19 The Court has no reason
to doubt the fact that the prosecutor and trial judge must have relied in "utmost good faith" on the old
rule (that a generic aggravating circumstance may be appreciated against the accused even if it is not
alleged in the information), but it is not enough for this Court to now take that belief into account
against appellant and to abandon a standing tenet that the law, as well as rules of procedure favorable

837
to the accused, must be given retroactive effect. The Court realizes that neither the Solicitor General
and the prosecutor nor the trial judge, are out of line; indeed, in People v. Mitra20 the Court has virtually
agreed to consider aggravating circumstances not alleged in the information but proved during the trial
and appreciated in imposing the sentence, without necessarily impinging the constitutional right of the
accused to be informed of the nature and cause of the accusation against him. Nevertheless, in
subsequent cases, starting with People v. Salalima,21 the Court, taking a hard look on the issue has
concluded that the new rules must be given retroactive effect "in the light of the well settled rule that
statutes regulating the procedure of the court will be construed as applicable to actions pending and
undetermined at the time of their passage."22

Article 248(1) of the Revised Penal Code, as amended, penalizes a person who commits the crime of
murder, attended by the qualifying circumstance of, among other circumstances, taking advantage of
superior strength, with reclusion perpetua to death. No generic aggravating penalty being attendant,
the lesser penalty of reclusion perpetua should be imposed.23

The trial court awarded "indemnity damages" of P50,000.00 and exemplary damages of P100,000.00.
Civil indemnity is automatically imposed upon the accused without need of proof other than the fact of
the commission of murder or homicide.24 The award should thus be affirmed. The award of exemplary
damages is justified considering the attendance of the aggravating circumstance of abuse of superior
strength that qualified the killing to murder but, considering prevailing jurisprudence, that amount
should be reduced to P25,000.00.25 Consistently likewise with recent decisions of the Court, an award of
only temperate damages of P25,000.00, no adequate proof of actual damages having been shown, is
warranted.26

WHEREFORE, the decision of the court a quo finding appellant PO3 Roger Roxas y Cabasag guilty beyond
reasonable doubt of the crime of murder for the killing of Lorna Maceda Puno is AFFIRMED subject to
the MODIFICATIONS that appellant shall suffer, instead of death, the penalty of reclusion perpetua and
that he shall pay the heirs of the victim civil indemnity of P50,000.00, exemplary damages of P25,000.00,
and temperate damages of P25,000.00. Costs against appellant.

SO ORDERED.

G.R. No. 136914 - January 25, 2002

COUNTRY BANKERS INSURANCE CORPORATION, Petitioner, vs. LIANGA BAY AND COMMUNITY MULTI-
PURPOSE COOPERATIVE, INC., Respondent.

DE LEON, JR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals2 dated December
29, 1998 in CA-G.R. CV Case No. 36902 affirming in toto the Decision3 dated December 26, 1991 of the
Regional Trial Court of Lianga, Surigao del Sur, Branch 28, in Civil Case No. L-518 which ordered
petitioner Country Bankers Insurance Corporation to fully pay the insurance claim of respondent Lianga
Bay and Community Multi-Purpose Cooperative, Inc., under Fire Insurance Policy No. F-1397, for loss
sustained as a result of the fire that occurred on July 1, 1989 in the amount of Two Hundred Thousand
Pesos (P200,000.00), with interest at twelve percent (12%) per annum from the date of filing of the
complaint until fully paid, as well as Fifty Thousand Pesos (P50,000.00) as actual damages, Fifty
Thousand Pesos (P50,000.00) as exemplary damages, Five Thousand Pesos (P5,000.00) as litigation
expenses, Ten Thousand Pesos (P10,000.00) as attorney's fees, and the costs of suit.

The facts are undisputed:

The petitioner is a domestic corporation principally engaged in the insurance business wherein it
undertakes, for a consideration, to indemnify another against loss, damage or liability from an unknown
or contingent event including fire while the respondent is a duly registered cooperative judicially
declared insolvent and represented by the elected assignee, Cornelio Jamero.

838
It appears that sometime in 1989, the petitioner and the respondent entered into a contract of fire
insurance. Under Fire Insurance Policy No. F-1397, the petitioner insured the respondent's stocks-in-
trade against fire loss, damage or liability during the period starting from June 20, 1989 at 4:00 p.m. to
June 20, 1990 at 4:00 p.m., for the sum of Two Hundred Thousand Pesos (P200,000.00).

On July 1, 1989, at or about 12:40 a.m., the respondent's building located at Barangay Diatagon, Lianga,
Surigao del Sur was gutted by fire and reduced to ashes, resulting in the total loss of the respondent's
stocks-in-trade, pieces of furnitures and fixtures, equipments and records.

Due to the loss, the respondent filed an insurance claim with the petitioner under its Fire Insurance
Policy No. F-1397, submitting: (a) the Spot Report of Pfc. Arturo V. Juarbal, INP Investigator, dated July 1,
1989; (b) the Sworn Statement of Jose Lomocso; and (c) the Sworn Statement of Ernesto Urbiztondo.

The petitioner, however, denied the insurance claim on the ground that, based on the submitted
documents, the building was set on fire by two (2) NPA rebels who wanted to obtain canned goods, rice
and medicines as provisions for their comrades in the forest, and that such loss was an excepted risk
under paragraph No. 6 of the policy conditions of Fire Insurance Policy No. F-1397, which provides:

This insurance does not cover any loss or damage occasioned by or through or in consequence, directly
or indirectly, of any of the following occurrences, namely:

xxx - xxx - xxx

(d) Mutiny, riot, military or popular uprising, insurrection, rebellion, revolution, military or usurped
power.

Any loss or damage happening during the existence of abnormal conditions (whether physical or
otherwise) which are occasioned by or through or in consequence, directly or indirectly, of any of said
occurrences shall be deemed to be loss or damage which is not covered by this insurance, except to the
extent that the Insured shall prove that such loss or damage happened independently of the existence
of such abnormal conditions.

Finding the denial of its claim unacceptable, the respondent then instituted in the trial court the
complaint for recovery of "loss, damage or liability" against petitioner. The petitioner answered the
complaint and reiterated the ground it earlier cited to deny the insurance claim, that is, that the loss was
due to NPA rebels, an excepted risk under the fire insurance policy.

In due time, the trial court rendered its Decision dated December 26, 1991 in favor of the respondent,
declaring that:

Based on its findings, it is therefore the considered opinion of this Court, as it so holds, that the defenses
raised by defendant-Country Bankers has utterly crumbled on account of its inherent weakness,
incredibility and unreliability, and after applying those helpful tools like common sense, logic and the
Court's honest appraisal of the real and actual situation obtaining in this area, such defenses remains
(sic) unimpressive and unconvincing, and therefore, the defendant-Country Bankers has to be
irreversibly adjudged liable, as it should be, to plaintiff-Insolvent Cooperative, represented in this action
by its Assignee, Cornelio Jamero, and thus, ordering said defendant-Country Bankers to pay the plaintiff-
Insolvent Cooperative, as follows:

1. To fully pay the insurance claim for the loss the insured-plaintiff sustained as a result of the fire under
its Fire Insurance Policy No. F-1397 in its full face value of P200,000.00 with interest of 12% per annum
from date of filing of the complaint until the same is fully paid;

2. To pay as and in the concept of actual or compensatory damages in the total sum of P50,000.00;

3. To pay as and in the concept of exemplary damages in the total sum of P50,000.00;

4. To pay in the concept of litigation expenses the sum of P5,000.00;

839
5. To pay by way of reimbursement the attorney's fees in the sum of P10,000.00; and

6. To pay the costs of the suit.

For being unsubstantiated with credible and positive evidence, the "counterclaim" is dismissed.

IT IS SO ORDERED.

Petitioner interposed an appeal to the Court of Appeals. On December 29, 1998, the appellate court
affirmed the challenged decision of the trial court in its entirety. Petitioner now comes before us via the
instant petition anchored on three (3) assigned errors,4 to wit:

1. THE HONORABLE COURT OF APPEALS FAILED TO APPRECIATE AND GIVE CREDENCE TO THE SPOT
REPORT OF PFC. ARTURO JUARBAL (EXH. 3) AND THE SWORN STATEMENT OF JOSE LOMOCSO (EXH. 4)
THAT THE RESPONDENT'S STOCK-IN-TRADE WAS BURNED BY THE NPA REBELS, HENCE AN EXCEPTED
RISK UNDER THE FIRE INSURANCE POLICY.

2. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING PETITIONER LIABLE FOR 12% INTEREST
PER ANNUM ON THE FACE VALUE OF THE POLICY FROM THE FILING OF THE COMPLAINT UNTIL FULLY
PAID.

3. THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THE PETITIONER LIABLE FOR ACTUAL AND
EXEMPLARY DAMAGES, LITIGATION EXPENSES, ATTORNEYS FEES AND COST OF SUIT.

A party is bound by his own affirmative allegations. This is a well-known postulate echoed in Section 1 of
Rule 131 of the Revised Rules of Court. Each party must prove his own affirmative allegations by the
amount of evidence required by law which in civil cases, as in this case, is preponderance of evidence, to
obtain a favorable judgment.5

In the instant case, the petitioner does not dispute that the respondent's stocks-in-trade were insured
against fire loss, damage or liability under Fire Insurance Policy No. F- 1397 and that the respondent lost
its stocks-in-trade in a fire that occurred on July 1, 1989, within the duration of said fire insurance. The
petitioner, however, posits the view that the cause of the loss was an excepted risk under the terms of
the fire insurance policy.

Where a risk is excepted by the terms of a policy which insures against other perils or hazards, loss from
such a risk constitutes a defense which the insurer may urge, since it has not assumed that risk, and
from this it follows that an insurer seeking to defeat a claim because of an exception or limitation in the
policy has the burden of proving that the loss comes within the purview of the exception or limitation
set up. If a proof is made of a loss apparently within a contract of insurance, the burden is upon the
insurer to prove that the loss arose from a cause of loss which is excepted or for which it is not liable, or
from a cause which limits its liability.6 Stated else wise, since the petitioner in this case is defending on
the ground of non-coverage and relying upon an exemption or exception clause in the fire insurance
policy, it has the burden of proving the facts upon which such excepted risk is based, by a
preponderance of evidence.7 But petitioner failed to do so.

The petitioner relies on the Sworn Statements of Jose Lomocso and Ernesto Urbiztondo as well as on the
Spot Report of Pfc. Arturo V. Juarbal dated July 1, 1989, more particularly the following statement
therein:

xxx investigation revealed by Jose Lomocso that those armed men wanted to get can goods and rice for
their consumption in the forest PD investigation further disclosed that the perpetrator are member (sic)
of the NPA PD end. x x x

A witness can testify only to those facts which he knows of his personal knowledge, which means those
facts which are derived from his perception.8 Consequently, a witness may not testify as to what he
merely learned from others either because he was told or read or heard the same. Such testimony is
considered hearsay and may not be received as proof of the truth of what he has learned. Such is the

840
hearsay rule which applies not only to oral testimony or statements but also to written evidence as
well.9

The hearsay rule is based upon serious concerns about the trustworthiness and reliability of hearsay
evidence inasmuch as such evidence are not given under oath or solemn affirmation and, more
importantly, have not been subjected to cross-examination by opposing counsel to test the perception,
memory, veracity and articulateness of the out-of-court declarant or actor upon whose reliability on
which the worth of the out-of-court statement depends.10

Thus, the Sworn Statements of Jose Lomocso and Ernesto Urbiztondo are inadmissible in evidence, for
being hearsay, inasmuch as they did not take the witness stand and could not therefore be cross-
examined.

There are exceptions to the hearsay rule, among which are entries in official records.11 To be admissible
in evidence, however, three (3) requisites must concur, to wit:

(a) that the entry was made by a public officer, or by another person specially enjoined by law to do so;

(b) that it was made by the public officer in the performance of his duties, or by such other person in the
performance of a duty specially enjoined by law; and

(c) that the public officer or other person had sufficient knowledge of the facts by him stated, which
must have been acquired by him personally or through official information.12

The third requisite was not met in this case since no investigation, independent of the statements
gathered from Jose Lomocso, was conducted by Pfc. Arturo V. Juarbal. In fact, as the petitioner itself
pointed out, citing the testimony of Pfc. Arturo Juarbal,13 the latter's Spot Report "was based on the
personal knowledge of the caretaker Jose Lomocso who witnessed every single incident surrounding the
facts and circumstances of the case." This argument undeniably weakens the petitioner's defense, for
the Spot Report of Pfc. Arturo Juarbal relative to the statement of Jose Lomocso to the effect that NPA
rebels allegedly set fire to the respondent's building is inadmissible in evidence, for the purpose of
proving the truth of the statements contained in the said report, for being hearsay.

The said Spot Report is admissible only insofar as it constitutes part of the testimony of Pfc. Arturo V.
Juarbal since he himself took the witness stand and was available for cross-examination. The portions of
his Spot Report which were of his personal knowledge or which consisted of his perceptions and
conclusions are not hearsay. The rest of the said report relative to the statement of Jose Lomocso may
be considered as independently relevant statements gathered in the course of Juarbal's investigation
and may be admitted as such but not necessarily to prove the truth thereof.14

The petitioner's evidence to prove its defense is sadly wanting and thus, gives rise to its liability to the
respondent under Fire Insurance Policy No. F-1397. Nonetheless, we do not sustain the trial court's
imposition of twelve percent (12%) interest on the insurance claim as well as the monetary award for
actual and exemplary damages, litigation expenses and attorney's fees for lack of legal and valid basis.

Concerning the application of the proper interest rates, the following guidelines were set in Eastern
Shipping Lines, Inc. v. Court of Appeals and Mercantile Insurance Co., Inc.:15

I. When an obligation, regardless of its source, i.e., law, contracts, quasi-contracts, delicts or quasi-
delicts, is breached, the contravenor can be held liable for damages. The provisions under Title XVIII on
"Damages" of the Civil Code govern in determining the measure of recoverable damages.

II. With regard particularly to an award of interest in the concept of actual and compensatory damages,
the rate of interest, as well as the accrual thereof, is imposed, as follows:

1. When the obligation is breached, and it consists in the payment of a sum of money, i.e., a loan or
forbearance of money, the interest due should be that which may have been stipulated in writing.
Furthermore, the interest due shall itself earn legal interest from the time it is judicially demanded. In

841
the absence of stipulation, the rate of interest shall be 12% per annum to be computed from default, i.e.,
from judicial or extrajudicial demand under and subject to the provisions of Article 1169 of the Civil
Code.

2. When an obligation, not constituting a loan or forbearance of money, is breached, an interest on the
amount of damages awarded may be imposed at the discretion of the court at the rate of 6% per annum.
No interest, however, shall be adjudged on unliquidated claims or damages except when or until the
demand can be established with reasonable certainty. Accordingly, where the demand is established
with reasonable certainty, the interest shall begin to run from the time the claim is made judicially or
extrajudicially (Art. 1169, Civil Code) but when such certainty cannot be so reasonably established at the
time the demand is made, the interest shall begin to run only from the date the judgment of the court is
made (at which time the quantification of damages may be deemed to have been reasonably
ascertained). The actual base for the computation of legal interest shall, in any case, be on the amount
finally adjudged.

3. When the judgment of the court awarding a sum of money becomes final and executory, the rate of
legal interest, whether the case falls under paragraph 1 or paragraph 2, above, shall be 12% per annum
from such finality until its satisfaction, this interim period being deemed to be by then an equivalent to a
forbearance of credit.

In the said case of Eastern Shipping, the Court further observed that a "forbearance" in the context of
the usury law is a "contractual obligation of lender or creditor to refrain, during a given period of time,
from requiring the borrower or debtor to repay a loan or debt then due and payable."

Considering the foregoing, the insurance claim in this case is evidently not a forbearance of money,
goods or credit, and thus the interest rate should be as it is hereby fixed at six percent (6%) computed
from the date of filing of the complaint.

We find no justification for the award of actual damages of Fifty Thousand Pesos (P50,000.00). Well-
entrenched is the doctrine that actual, compensatory and consequential damages must be proved, and
cannot be presumed.16 That part of the dispositive portion of the Decision of the trial court ordering the
petitioner to pay actual damages of Fifty Thousand Pesos (P50,000.00) has no basis at all. The
justification, if any, for such an award of actual damages does not appear in the body of the decision of
the trial court. Neither is there any testimonial and documentary evidence on the alleged actual
damages of Fifty Thousand Pesos (P50,000.00) to warrant such an award. Thus, the same must be
deleted.

Concerning the award of exemplary damages for Fifty Thousand Pesos (P50,000.00), we likewise find no
legal and valid basis for granting the same. Article 2229 of the New Civil Code provides that exemplary
damages may be imposed by way of example or correction for the public good. Exemplary damages are
imposed not to enrich one party or impoverish another but to serve as a deterrent against or as a
negative incentive to curb socially deleterious actions. They are designed to permit the courts to mould
behavior that has socially deleterious consequences, and its imposition is required by public policy to
suppress the wanton acts of an offender. However, it cannot be recovered as a matter of right. It is
based entirely on the discretion of the court. We find no cogent and valid reason to award the same in
the case at bar.

With respect to the award of litigation expenses and attorney's fees, Article 2208 of the New Civil
Code17 enumerates the instances where such may be awarded and, in all cases, it must be reasonable,
just and equitable if the same were to be granted. Attorney's fees as part of damages are not meant to
enrich the winning party at the expense of the losing litigant. They are not awarded every time a party
prevails in a suit because of the policy that no premium should be placed on the right to litigate. 18 The
award of attorney's fees is the exception rather than the general rule. As such, it is necessary for the
court to make findings of facts and law that would bring the case within the exception and justify the
grant of such award. We find none in this case to warrant the award by the trial court of litigation
expenses and attorney's fees in the amounts of Five Thousand Pesos (P5,000.00) and Ten Thousand
Pesos (P10,000.00), respectively, and therefore, the same must also be deleted.

842
WHEREFORE, the appealed Decision is MODIFIED. The rate of interest on the adjudged principal amount
of Two Hundred Thousand Pesos (P200,000.00) shall be six percent (6%) per annum computed from the
date of filing of the Complaint in the trial court. The awards in the amounts of Fifty Thousand Pesos
(P50,000.00) as actual damages, Fifty Thousand Pesos (P50,000.00) as exemplary damages, Five
Thousand Pesos (P5,000.00) as litigation expenses, and Ten Thousand Pesos (P10,000.00) as attorney's
fees are hereby DELETED. Costs against the petitioner.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

G.R. No. L-87584 June 16, 1992

GOTESCO INVESTMENT CORPORATION, petitioner,

vs.
GLORIA E. CHATTO and LINA DELZA CHATTO, respondents.

DAVIDE. JR., J.:

Assailed in this petition for review under Rule 45 of the Rules of Court are both the
Decision 1 promulgated on 27 July 1988 and the Resolution dated 14 March 1989 2 of the respondent
Court of Appeals in CA-G.R. CV No. 09699 which, respectively affirmed in toto the decision of Branch XXI
of the Regional Trial Court of Cebu in Civil Case No. R-22567 entitled "Gloria Chatto, et al. versus
Gotesco Investment Corporation", and denied petitioner's motion to reconsider the same.

The trial court ordered the defendant, herein petitioners to pay the plaintiff Lina Delza E. Chatto the
sum of P10,000.00 as moral damages and the plaintiff Gloria E. Chatto the sum of P49,050.00 as actual
and consequential damages, P75,000.00 as moral damages and P20,000.00 as attorney's fees, plus the
cost of the suit. These awards, except for the attorney's fees, were to earn interest at the rate of twelve
per cent (12%) per annum beginning from the date the complaint was filed, 16 November 1982, until
the amounts were fully paid.

The antecedent facts, as found by the trial court and affirmed by the respondent Court, are summarized
by the latter in the challenged decision as follows:

The evidence shows that in the afternoon of June 4, 1982 plaintiff Gloria E. Chatto, and
her 15-year old daughter, plaintiff Lina Delza E. Chatto went to see the movie "Mother
Dear" at Superama I theater, owned by defendant Gotesco Investment Corporation.
They bought balcony tickets but even then were unable to find seats considering the
number of people patronizing the movie. Hardly ten (10) minutes after entering the
theater, the ceiling of its balcony collapsed. The theater was plunged into darkness and
pandemonium ensued. Shocked and hurt, plaintiffs managed to crawl under the fallen
ceiling. As soon as they were able to get out to the street they walked the nearby FEU
Hospital where they were confined and treated for one (1) day.

The next day, they transferred to the UST hospital. Plaintiff Gloria Chatto was treated in
said hospital from June 5 to June 19 and plaintiff Lina Delza Chatto from June 5 to 11.
Per Medico Legal Certificate (Exh, "C") issued by Dr. Ernesto G. Brion, plaintiff Lina Delza
Chatto suffered the following injuries:

Physical injuries:

Contusions:

forehead and drental region, scalp left with hematoma;

chest anterior upper bilateral; back right, scapular

843
 region; back, mid-portion, thoraco-lumbar regions,
bilateral

Abrasions:

back lumbar region, horizontal, across midline, from left

to right; hand right, palm, near wrist; hand left, index
finger, dorsum, proximal phalanx.

Conclusion, cerebral.

X-Ray — Skull; Thoraco-lumbar

region — All negative.

CONCLUSIONS

1. Physical injuries rioted on the subject.

2. That under normal condition in the

absence of complication, said physical
injuries will require medical attendance
and/or incapacitate the subject for a
period of from two to four weeks.

On the other hand, the findings on plaintiff Gloria Chatto per Medico Legal Certificate
(Exh. "D") of Dr. Brion are as follows:

xxx xxx xxx

Physical injuries:

Lacerated wounds:

scalp vertex, running across suggittal line, from left to

right, 3.0 cm sutured;

Contusion, forearm right, anterior aspect, upper third.

Abrasions:

Shoulder and upper third, arm right, posterior aspect,

linear; backright, scapular region, two in number, linear;
elbow right, posterior aspect; forearm right, anterior
aspect, middle third.

Concusion (sic), cerebral.

X-Ray — Skull — Negative.

Cervical spines Straightening of cervical spine, probably to muscular
spasm.

CONCLUSIONS:

1. Physical injuries noted on subject.

2. That under normal condition, in the absence of complication, said

physical injuries will require medical attendance and/or incapacitate the
subject for a period of from two to four weeks.

844
 Due to continuing pain in the neck, headache and dizziness, plaintiff went to Illinois, USA
in July 1982 for further treatment (Exh "E"). She was treated at the Cook County
Hospital in Chicago, Illinois. She stayed in the U.S. for about three (3) months during
which time she had to return to the Cook County Hospital five (5) or, six (6) times.

Defendant tried to avoid liability by alleging that the collapse of the ceiling of its theater
was done due to force majeure. It maintained that its theater did not suffer from any
structural or construction defect. (Exh. 1, 2, 3, 4, & 5)3

In justifying its award of actual or compensatory and moral damages and attorney's fees, the trial court
said:

It has been established thru the uncontradicted testimony of Mrs. Chatto that during
the chaos and confusion at the theater she lost a pair of earrings worth P2,500 and the
sum of P1,000.00 in cash contained in her wallet which was lost; and that she incurred
the following expenses: P500.00 as transportation fare from Cebu City to Manila on the
first leg of her trip to the United States; P350.00 for her passport; and P46,978.00 for
her expense relative to her treatment in the United States, including the cost of a round-
trip ticket (P11,798.00) hospital and medical bills and other attendant expenses. The
total is P51,328.00, which is more than the sum of P49,050.00 claimed in the complaint,
hence should be reduced accordingly.

The same testimony has also established that Mrs. Chatto contracted to pay her counsel
the sum of P20,000.00, which this court considers reasonable considering, among other
things, the professional standing of work (sic) involved in the prosecution of this case.
Such award of attorney's fees is proper because the defendant's omission to provide the
plaintiffs proper and adequate safeguard to life and limb which they deserved as
patrons to (sic) its theater had compelled the plaintiffs to hire the services of a counsel,
file this case and prosecute it, thus incurring expenses to protect their interest.

The plaintiffs are entitled to moral damages, which are the direct and proximate result
of the defendants gross negligence and omission. Such moral damages include the
plaintiffs' physical suffering, mental anguish, fright and serious anxiety. On the part of
Mrs. Chatto, who obviously suffered much more pain, anguish, fright and anxiety than
her daughter Lina Delza, such damages are compounded by the presence of permanent
deformities on her body consisting of a 6-inch scar on the head and a 2-inch scar on one
arm. The court believes that the sum of P75,000.00 for plaintiff Gloria E. Chatto and the
sum of P10,000.00 for plaintiff Lina Delza E. Chatto would be reasonable. 4

Petitioner submitted before the respondent Court the following assignment of errors:

I. THE LOWER COURT ERRED IN ADMITTING PATENTLY — INADMISSIBLE EVIDENCE

PRESENTED BY PLAINTIFF-APPELLEES AND IN GIVING LESS PROBATIVE VALUE TO PUBLIC
DOCUMENTS AND CERTIFICATIONS OF THE CONDITION OF THE BUILDING,
PARTICULARLY THE CERTIFICATE OF OCCUPANCY ISSUED BY THE CITY ENGINEER'S
OFFICE OF MANILA.

II. THE LOWER COURT ERRED IN FINDING THAT "THE CEILING OF THE BALCONY
COLLAPSED DUE TO SOME STRUCTURAL CONSTRUCTION OR ARCHITECTURAL DEFECT,"
AND NOT DUE TO AN ACT OF GOD OR FORCE MAJEURE.

III. THE LOWER COURT ERRED IN FINDING THAT THE APPELLANT WAS GROSSLY
NEGLIGENT IN FAILING "TO CAUSE PROPER AND ADEQUATE INSPECTION MAINTENANCE
AND UPKEEP OF THE BUILDING." 5

In its decision, respondent Court found the appeal to be without merit. As to the first assigned error, it
ruled that the trial court did not err in admitting the exhibits in question in the light of the ruling
in Abrenica vs. Gonda 6 on waiver of objections arising out of failure to object at the proper time Thus:

845
 Exh. "A", the letter dated June 9, 1982 of Tina Mojica of defendant-appellant to the
Administrator of UST Hospital expressing their willingness to guaranty the payment of
the hospital bills of the plaintiffs-appellees was not objected to in trial court for lack of
authentication. It is too late to raise that objection on appeal.

Exhibits "B", "C", "D", "F" to "F-13" are the hospital records at FEU, UST and Cook
County Hospital. It may be true that the doctors who prepared them were not
presented as witnesses. Nonetheless, the records will show that counsel for defendant-
appellant cross examined plaintiff-appellee Gloria Chatto on the matter especially the
content of Exhibits "F" to F-13", Consequently, defendant-appellant is estopped from
claiming lack of opportunity to verify their textual truth. Moreover, the record is full of
the testimony of plaintiffs-appellees on the injuries they sustained from the collapse of
the ceiling of defendant-appellant's theater. Their existence is crystal clear.

Exh. "E" is the flight coupon and passenger ticket (Northwest Orient) of plaintiff-
appellee Gloria Chatto from the Philippines to the U.S. (Manila-Chicago-Manila).
Certainly, this is relevant evidence on whether or not she actually travelled (sic) to the
U.S. for further medical treatment. Defendant-appellant's contention that the best
evidence on the issue is her passport is off the mark. The best evidence rule applies only
if the contents of the writing are directly in issue. In any event, her passport is not the
only evidence on the matter.

Exh. "G" is the summary of plaintiff-appellee Gloria Chatto's expenses in the U.S in her
own handwriting. Defendant-appellant's objection that it is self serving goes to the
weight of the evidence. The truth of Exh. "G" could be and should have been tested by
cross examination. It cannot be denied however that such expenses are within the
personal knowledge of the witness.

Exh. "H" is the surgical neckwear worn by the plaintiff-appellee Gloria Chatto as part of
her treatment in the U.S. Defendant-appellant objects to its admission because it is self-
serving. The objection is without merit in view of the evidence on record that plaintiff-
appellee Gloria Chatto sustained head injuries from the collapse of the ceiling of
defendant-appellant's theater. In fact, counsel for defendant-appellant cross examined
the said witness on the medical finding of Cook County Hospital that she was suffering
from neck muscle spasm. (TSN, April 17, 1984, p. 11) The wearing of a surgical neckwear
has proper basis.

Exh. "I" is the photograph of plaintiff-appellee Gloria Chatto in the U.S. showing the use
of her surgical neckwear. Defendant-appellant objects to this exhibit its hearsay because
the photographer was not presented as a witness. The objection is incorrect. In order
that photographs or pictures may be given in evidence, they must be shown to be a true
and faithful representation of the place or objects to which they refer. The photographs
may be verified either by the photographer who took it or by any person who is
acquainted with the object represented and testify (sic) that the photograph faithfully
represents the object. (Moran, Comments in the Rules of Court, Vol. V, 1980 ed., p. 80
citing New York Co vs. Moore, 105 Fed. 725) In the case at bar, Exh. "I" was identified by
plaintiff appellee Gloria Chatto. 7

As to the, other assigned errors, the respondent Court ruled:

The lower court did not also err in its finding that the collapse of the ceiling of the
theater's balcony was due to construction defects and not to force majeure. It was the
burden defendant-appellant to prove that its theater did not suffer from any structural
defect when it was built and that it has been well maintained when the incident
occurred. This is its Special and Affirmative Defense and it is incumbent on defendant-
appellant to prove it. Considering the collapse of the ceiling of its theater's balcony
barely four (4) years after its construction, it behooved defendant-appellant to conduct

846
an exhaustive study of the reason for the tragic incident. On this score, the effort of
defendant-appellant borders criminal nonchalance. Its witness Jesus Lim Ong testified:

Atty. Barcelona:

Q By the way, you made mention a while ago that your staff of engineer
and architect used to make round inspection of the building under your
construction the of these buildings is Gotesco Cinema 1 and 2, subject
matter of this case, and you also made a regular round up or inspection
of the theater. Is that right?

A Yes, sir.

Q And do you personally inspect these buildings under your

construction?

A Yes, whenever I can.

Q In the case of Gotesco Cinema 1 and 2, had you any chance to inspect
this building?

A Yes, sir.

Q Particularly in the months of May and June of 1982?

A Yes, in that (sic) months.

Q Now, you said also that sometime in June 1982 you remember that
one of these theaters.

Atty. Barcelona: continuing

particularly Superama 1 the ceiling had collapsed?

A Yes, sir.

Q Did you conduct an investigation?

A Yes, sir.

Q What was your finding?

A There was really nothing, I cannot explain. I could not give any reason
why the ceiling collapsed.

Q Could it not be due to any defect of the plant?

Atty. Florido:

Already answered, Your Honor, he could not give any reason.

COURT:

Objection sustained.

Atty. Barcelona:

847
 Q When that incident happened, did the owner Gotesco Investment
Corporation went (sic) to you to call your attention?

A Yes, sir.

Atty. Florido:

Your Honor, we noticed (sic) series of leading questions, but this time
we object.

COURT:

Sustained.

Atty. Barcelona;

Q What did the owner of Gotesco do when the ceiling collapsed, upon
knowing that one of the cinemas you maintained collopsed?

A He asked for a thorough investigation.

Q And as a matter of fact as asked you to investigate?

A Yes, sir.

Q Did you come out with any investigation report.

A There was nothing to report.

Clearly, there was no authoritative investigation conducted by impartial civil and

structural engineers on the cause of the collapse of the theater's ceiling, Jesus Lim Ong
is not an engineer, He is a graduate of architecture from the St. Louie (sic) University in
Baguio City. It does not appear he has passed the government examination for
architects. (TSN, June 14, 1985 p. 4) In fine, the ignorance of Mr. Ong about the cause of
the collapse of the ceiling of their theater cannot be equated, as an act, of God. To
sustain that proposition is to introduce sacrilege in our jurisprudence. 8

Its motion for reconsideration of the decision having been denied by the respondent Court, petitioner
filed this petition assailing therein the challenged decision on the following grounds:

1. The basis of the award for damages stems from medical reports issued by private
physicians of local hospitals without benefit of cross-examination and more seriously,
xerox copies of medical findings issued by American doctors in the United States
without the production of originals, without the required consular authentication for
foreign documents, and without the opportunity for cross-examination.

2. The damage award in favor of respondents is principally, made depend on such

unreliable, hearsay and incompetent evidence for which an award of more than
P150,000.00 in alleged actual, moral and I "consequential" damages are awarded to the
prejudice of the right of petitioner to due process. . . .

3. Unfortunately, petitioners evidence of due diligence in the care and maintenance of

the building was not seriously considered by the Court of Appeals, considering that
frequent inspections and maintenance precautions had to be observed by hired
engineers of petitioner, which enjoys an unsullied reputation in the business of
exhibiting movies in a chain of movie houses in Metro Manila. 9

848
After the private respondents filed their Comment as required in the Resolution of 17 May 1989, this
Court resolved to give due course to the petition and required the parties to file their respective
Memoranda. Subsequently, private respondents, in a motion, prayed for leave to adopt their Comment
as their Memorandum, which this Court granted on 6 December 1989. Petitioner filed its Memorandum
on 10 January 1990.

The petition presents both factual and legal issues. The first relates to the cause of the collapse of the
ceiling while the latter involves the correctness of the admission of the exhibits in question.

We find no merit in the petition.

The rule is well-settled that the jurisdiction of this Court in cases brought to it from the Court of Appeals
is limited to reviewing and revising the errors of law imputed to it, its findings of fact being
conclusive, 10 except only where a case is shown as coming under the accepted exception. 11 None of the
exceptions which this Court has painstakingly summarized in several cases 12 has been shown to exist in
this petition. Petitioner's claim that the collapse of the ceiling of the theater's balcony was due to force
majeure is not even founded on facts because its own witness, Mr. Jesus Lim Ong, admitted that "he
could not give any reason why the ceiling collapsed." Having interposed it as a defense, it had the
burden to prove that the collapse was indeed caused by force majeure. It could not have collapsed
without a cause. That Mr. Ong could not offer any explanation does not imply force majeure. As early as
eighty-five (85) years ago, this Court had the occasion to define force majeure. In Pons y Compañia vs. La
Compañia Maritima 13 this Court held:

An examination of the Spanish and American authorities concerning the meaning

of force majeure shows that the jurisprudence of these two countries practically agree
upon the meaning of this phrase.

Blackstone, in his Commentaries on English Law, defines it as —

Inevitable accident or casualty; an accident produced by any physical

cause which is irresistible; such as lightning. tempest, perils of the sea,
inundation, or earthquake; the sudden illness or death of a person. (2
Blackstone's Commentaries, 122; Story in Bailments, sec. 25.)

Escriche, in his Diccionario de Legislacion y Jurisprudencia, defines fuerza mayor as

follows.

The event which we could neither foresee nor resist; as for example, the
lightning stroke, hail, inundation, hurricane, public enemy, attack by
robbers; Vis major est, says Cayo, ea quae consilio humano neque
provideri neque vitari potest. Accident and mitigating circumstances.

Bouvier defines the same as —

Any accident due to natural cause, directly exclusively without human

intervention, such as could not have been prevented by any kind of
oversight, pains and care reasonably to have been expected. (Law
Reports, 1 Common Pleas Division, 423; Law Reports, 10 Exchequer,
255.)

Corkburn, chief justice, in a well considered English case (1 Common Pleas Division, 34,
432), said that were a captain —

Uses all the known means to which prudent and experienced captains
ordinarily have recourse, he does all that can be reasonably required of
him; and if, under such circumtances, he is overpowered by storm or
other natural agency, he is within the rule which gives immunity from
the effects of such vis major.

849
 The term generally applies, broadly speaking, to natural accidents, such as those caused
by lightning, earthquake, tempests, public enemy ,etc.

Petitioner could have easily discovered the cause of the collapse if indeed it were due to force
majeure. To Our mind, the real reason why Mr. Ong could not explain the cause or reason is that either
he did not actually conduct the investigation or that he is, as the respondent Court impliedly held,
incompetent. He is not an engineer, but an architect who had not even passed the government's
examination. Verily, post-incident investigation cannot be considered as material to the present
proceedings. What is significant is the finding of the trial court, affirmed by the respondent Court, that
the collapse was due to construction defects. There was no evidence offered to overturn this finding.
The building was constructed barely four (4) years prior to the accident in question. It was not shown
that any of the causes denominates as force majeure obtained immediately before or at the time of the
collapse of the ceiling. Such defects could have been easily discovered if only petitioner exercised due
diligence and care in keeping and maintaining the premises. But as disclosed by the testimony of Mr.
Ong, there was no adequate inspection of the premises before the date of the accident. His answers to
the leading questions on inspection disclosed neither the exact dates of said. inspection nor the nature
and extent of the same. That the structural designs and plans of the building were duly approved by the
City Engineer and the building permits and certificate of occupancy were issued do not at all prove that
there were no defects in the construction, especially as regards the ceiling, considering that no
testimony was offered to prove that it was ever inspected at all.

It is settled that:

The owner or proprietor of a place of public amusement impliedly warrants that the
premises, appliances and amusement devices are safe for the purpose for which they
are designed, the doctrine being subject to no other exception or qualification than that
he does not contract against unknown defects not discoverable by ordinary or
reasonable means. 14

This implied warranty has given rise to the rule that:

Where a patron of a theater or other place of public amusement is injured, and the
thing that caused the injury is wholly and exclusively under the control and
management of the defendant, and the accident is such as in the ordinary course of
events would not have happened if proper care had been exercised, its occurrence
raises a presumption or permits of an inference of negligence on the part of the
defendant. 15

That presumption or inference was not overcome by the petitioner.

Besides, even assuming for the sake of argument that, as petitioner vigorously insists, the cause of the
collapse was due to force majeure, petitioner would still be liable because it was guilty of negligence,
which the trial court denominated as gross. As gleaned from Bouvier's definition of and Cockburn's
elucidation on force majeure for one to be exempt from any liability because of it, he must have
exercised care, i.e., he should not have been guilty of negligence.

Turning now to the legal issue posed in this petition, the error lies not in the disquisitions of the
respondent Court, but in the sweeping conclusion of petitioner. We agree with the respondent Court
that petitioner offered no reasonable objection to the exhibits. More than this, however, We note that
the exhibits were admitted not as independent evidence, but, primarily, as part of the testimony of Mrs.
Gloria Chatto. Neither were the exhibits made the main basis for the award of damages. As to the latter,
including the award for attorney's fees, the testimonial evidence presented is sufficient to support the
same; moreover, petitioner was not deprived of its right to test the, truth or falsity of private
respondents' testimony through cross-examination or refute their claim by its own evidence. It could
not then be successfully argued by petitioner that the admission of the exhibits violated the hearsay rule.
As this Court sees it, the trial court admitted such merely as independently relevant statements, which
was not objectionable, for:

850
 Where, regardless of the truth or the falsity of a statement, the fact that it has been
made is relevant, the hearsay rule does not apply, but the statement may be shown.
Evidence as to the making of such statement is not secondary but primary, for the
statement itself may constitute a fact; in issue, or be circumstantially relevant as to the
existence of such a fact. 16

Furthermore, and with particular reference to the documents issued in the United States of America
(Exhibits "F", "F-1" to "F-13", inclusive), the main objection thereto was not that they are hearsay. In its
written comment and/or opposition to documentary exhibits, petitioner objected to their admission on
the following grounds only:

. . . for being incompetent evidence considering that the same were not duly
authenticated by the responsible consular and/or embassy officials authorized to
authenticate the said documents. 17

All told, the instant petition is without merit.

WHEREFORE, judgment is hereby rendered DENYING the instant petition with costs against petitioner.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Romero, JJ., concur.

[G.R. No. 122954. February 15, 2000.]

NORBERTO FERIA Y PACQUING, Petitioner, v. THE COURT OF APPEALS, THE DIRECTOR OF THE BUREAU
OF CORRECTIONS, MUNTINLUPA, METRO MANILA (IN PLACE OF THE JAIL WARDEN OF THE MANILA
CITY JAIL), THE PRESIDING JUDGE OF BRANCH II, REGIONAL TRIAL COURT OF MANILA, and THE CITY
PROSECUTOR, CITY OF MANILA, Respondents.

DECISION

QUISUMBING, J.:

The mere loss or destruction of the records of a criminal case subsequent to conviction of the accused
will not render the judgment of conviction void, nor will it warrant the release of the convict by virtue of
a writ of habeas corpus. The proper remedy is the reconstitution of judicial records which is as much a
duty of the prosecution as of the defense.chanrobles.com : virtuallawlibrary

Subject of this petition for review on certiorari are (1) the Decision dated April 28, 1995, of the Eighth
Division of the Court of Appeals, which affirmed the dismissal of the petition for habeas corpus filed by
petitioner, and (2) the Resolution of the Court of Appeals dated December 1, 1995, which denied the
Motion for Reconsideration. As hereafter elucidated, we sustain the judgment of respondent appellate
court.

Based on the available records and the admissions of the parties, the antecedents of the present
petition are as follows:chanrob1es virtual 1aw library

Petitioner Norberto Feria y Pacquing has been under detention since May 21, 1981, up to present 1 by
reason of his conviction of the crime of Robbery with Homicide, in Criminal Case No. 60677, by the
Regional Trial Court of Manila, Branch 2, for the jeepney hold-up and killing of United States Peace Corps
Volunteer Margaret Viviene Carmona.

Some twelve (12) years later, or on June 9, 1993, petitioner sought to be transferred from the Manila
City Jail to the Bureau of Corrections in Muntinlupa City, 2 but the Jail Warden of the Manila City Jail
informed the Presiding Judge of the RTC-Manila, Branch 2, that the transfer cannot be effected without

851
the submission of the requirements, namely, the Commitment Order or Mittimus, Decision, and
Information. 3 It was then discovered that the entire records of the case, including the copy of the
judgment, were missing. In response to the inquiries made by counsel of petitioner, both the Office of
the City Prosecutor of Manila and the Clerk of Court of Regional Trial Court of Manila, Branch 2 attested
to the fact that the records of Criminal Case No. 60677 could not be found in their respective offices.
Upon further inquiries, the entire records appear to have been lost or destroyed in the fire which
occurred at the second and third floor of the Manila City Hall on November 3, 1986. 4

On October 3, 1994, petitioner filed a Petition for the Issuance of a Writ of Habeas Corpus 5 with the
Supreme Court against the Jail Warden of the Manila City Jail, the Presiding Judge of Branch 2, Regional
Trial Court of Manila, and the City Prosecutor of Manila, praying for his discharge from confinement on
the ground that his continued detention without any valid judgment is illegal and violative of his
constitutional right to due process.

In its Resolution dated October 10, 1994, 6 the Second Division of this Court resolved —

". . . (a) to ISSUE the Writ of Habeas Corpus; (b) to ORDER the Executive Judge of the Regional Trial Court
of Manila to conduct an immediate RAFFLE of this case among the incumbent judges thereof; and (c) to
REQUIRE [1] the Judge to whom this case is raffled to SET the case for HEARING on Thursday, October 13,
1994 at 8:30 A.M., try and decide the same on the merits and thereafter FURNISH this Court with a copy
of his decision thereon; [2] the respondents to make a RETURN of the Writ on or before the close of
office hours on Wednesday, October 12, 1994 and APPEAR PERSONALLY and PRODUCE the person of
Norberto Feria y Pa[c]quing on the aforesaid date and time of hearing to the Judge to whom this case is
raffled, and [3] the Director General, Philippine National Police, through his duly authorized
representative(s) to SERVE the Writ and Petition, and make a RETURN thereof as provided by law and,
specifically, his duly authorized representative(s) to APPEAR PERSONALLY and ESCORT the person of
Norberto Feria y Pa[c]quing at the aforesaid date and time of hearing." chanrobles virtual lawlibrary

The case was then raffled to Branch 9 of the Regional Trial Court of Manila, which on November 15,
1994, after hearing, issued an Order 7 dismissing the case on the ground that the mere loss of the
records of the case does not invalidate the judgment or commitment nor authorize the release of the
petitioner, and that the proper remedy would be reconstitution of the records of the case which should
be filed with the court which rendered the decision.

Petitioner duly appealed said Order to the Court of Appeals, which on April 28, 1995, rendered the
assailed Decision 8 affirming the decision of the trial court with the modification that "in the interest of
orderly administration of justice" and "under the peculiar facts of the case" petitioner may be
transferred to the Bureau of Corrections in Muntinlupa City without submission of the requirements
(Mittimus, Decision and Information) but without prejudice to the reconstitution of the original records.

The Motion for Reconsideration of the aforesaid Order having been denied for lack of merit, 9 petitioner
is now before us on certiorari, assigning the following errors of law: 10

I WHETHER OR NOT, UNDER THE PECULIAR CIRCUMSTANCES OF THIS CASE, WHERE THE RECORDS OF
CONVICTION WERE LOST, THE PETITIONER’S CONTINUED INCARCERATION IS JUSTIFIED UNDER THE LAW.

COROLLARY TO THIS, WHETHER OR NOT THE COURT OF APPEALS’ RESOLUTION, AFFIRMING THE DENIAL
OF HEREIN APPELLANT’S PETITION FOR HABEAS CORPUS IS, IN CONTEMPLATION OF LAW, A JUDGMENT
OR A SUBSTITUTE JUDGMENT, WHICH CAN BE UTILIZED AS A SUFFICIENT BASIS FOR HIS INCARCERATION.

II. WHETHER OR NOT THE RECONSTITUTION OF OFFICIAL RECORDS LOST/DESTROYED SHOULD BE

INITIATED BY THE GOVERNMENT AND ITS ORGANS, WHO ARE IN CUSTODY OF SUCH, OR BY THE
PRISONER, WHOSE LIBERTY IS RESTRAINED.

Petitioner argues that his detention is illegal because there exists no copy of a valid judgment as
required by Sections 1 and 2 of Rule 120 of the Rules of Court, 11 and that the evidence considered by
the trial court and Court of Appeals in the habeas corpus proceedings did not establish the contents of
such judgment. Petitioner further contends that our ruling in Gunabe v. Director of Prisons, 77 Phil. 993,

852
995 (1947), that "reconstitution is as much the duty of the prosecution as of the defense" has been
modified or abandoned in the subsequent case of Ordoñez v. Director of Prisons, 235 SCRA 152, 155
(1994), wherein we held that" [i]t is not the fault of the prisoners that the records cannot now be found.
If anyone is to be blamed, it surely cannot be the prisoners, who were not the custodians of those
records."cralaw virtua1aw library

In its Comment, 12 the Office of the Solicitor General contends that the sole inquiry in this habeas
corpus proceeding is whether or not there is legal basis to detain petitioner. The OSG maintains that
public respondents have more than sufficiently shown the existence of a legal ground for petitioner’s
continued incarceration, viz., his conviction by final judgment, and under Section 4 of Rule 102 of the
Rules of Court, the discharge of a person suffering imprisonment under lawful judgment is not
authorized. Petitioner’s remedy, therefore, is not a petition for habeas corpus but a proceeding for the
reconstitution of judicial records.chanroblesvirtuallawlibrary

The high prerogative writ of habeas corpus, whose origin is traced to antiquity, was devised and exists as
a speedy and effectual remedy to relieve persons from unlawful restraint, and as the best and only
sufficient defense of personal freedom. 13 It secures to a prisoner the right to have the cause of his
detention examined and determined by a court of justice, and to have the issue ascertained as to
whether he is held under lawful authority. 14 Consequently, the writ may also be availed of where, as a
consequence of a judicial proceeding, (a) there has been a deprivation of a constitutional right resulting
in the restraint of a person, (b) the court had no jurisdiction to impose the sentence, or (c) an excessive
penalty has been imposed, as such sentence is void as to such excess. 15 Petitioner’s claim is anchored
on the first ground considering, as he claims, that his continued detention, notwithstanding the lack of a
copy of a valid judgment of conviction, is violative of his constitutional right to due process.

Based on the records and the hearing conducted by the trial court, there is sufficient evidence on record
to establish the fact of conviction of petitioner which serves as the legal basis for his detention.
Petitioner made judicial admissions, both verbal and written, that he was charged with and convicted of
the crime of Robbery with Homicide, and sentenced to suffer imprisonment "habang buhay" .

In its Order dated October 17, 1994, the RTC-Manila, Branch 9, made the finding that —16

"During the trial and on manifestation and arguments made by the accused, his learned counsel and
Solicitor Alexander G. Gesmundo who appeared for the respondents, it appears clear and indubitable
that:chanrob1es virtual 1aw library

(A) Petitioner had been charged with Robbery with Homicide in Criminal Case No. 60677, Illegal
Possession of Firearm in Criminal Case No. 60678 and Robbery in Band in Criminal Case No. 60867. . . . In
Criminal Case No. 60677 (Robbery with Homicide) the accused admitted in open Court that a decision
was read to him in open Court by a personnel of the respondent Court (RTC Branch II) sentencing him to
Life Imprisonment (Habang buhay) . . ." (Emphasis supplied)chanrobles virtuallawlibrary

Further, in the Urgent Motion for the Issuance of Commitment Order of the Above Entitled Criminal
Case dated June 8, 1993, 17 petitioner himself stated that —

"COMES NOW, the undersigned accused in the above entitled criminal case and unto this Honorable
Court most respectfully move:chanrob1es virtual 1aw library

1. That in 1981 the accused was charge of (sic) Robbery with Homicide;

2. That after four years of trial, the court found the accused guilty and given a Life Sentence in a
promulgation handed down in 1985; (Emphasis supplied)

3. That after the sentence was promulgated, the Presiding Judge told the councel (sic) that accused has
the right to appeal the decision;

4. That whether the de officio counsel appealed the decision is beyond the accused comprehension (sic)
because the last time he saw the counsel was when the decision was promulgated.

853
5. That everytime there is change of Warden at the Manila City Jail attempts were made to get the
Commitment Order so that transfer of the accused to the Bureau of Corrections can be affected, but all
in vain;"

Petitioner’s declarations as to a relevant fact may be given in evidence against him under Section 23 of
Rule 130 of the Rules of Court. This rule is based upon the presumption that no man would declare
anything against himself, unless such declaration were true, 18 particularly with respect to such grave
matter as his conviction for the crime of Robbery with Homicide. Further, under Section 4 of Rule 129,"
[a]n admission, verbal or written, made by a party in the course of the proceedings in the same case,
does not require proof. The admission may be contradicted only by a showing that it was made through
palpable mistake or that no such admission was made." Petitioner does not claim any mistake nor does
he deny making such admissions.

The records also contain a certified true copy of the Monthly Report dated January 1985 19 of then
Judge Rosalio A. De Leon, attesting to the fact that petitioner was convicted of the crime of Robbery
with Homicide on January 11, 1985. Such Monthly Report constitutes an entry in official records under
Section 44 of Rule 130 of the Revised Rules on Evidence, which is prima facie evidence of facts therein
stated.chanrobles virtual lawlibrary

Public respondents likewise presented a certified true copy of People’s Journal dated January 18, 1985,
page 2, 20 issued by the National Library, containing a short news article that petitioner was convicted
of the crime of Robbery with Homicide and was sentenced to "life imprisonment." However, newspaper
articles amount to "hearsay evidence, twice removed" 21 and are therefore not only inadmissible but
without any probative value at all whether objected to or not, 22 unless offered for a purpose other
than proving the truth of the matter asserted. In this case, the news article is admissible only as
evidence that such publication does exist with the tenor of the news therein stated.

As a general rule, the burden of proving illegal restraint by the respondent rests on the petitioner who
attacks such restraint. In other words, where the return is not subject to exception, that is, where it sets
forth process which on its face shows good ground for the detention of the prisoner, it is incumbent on
petitioner to allege and prove new matter that tends to invalidate the apparent effect of such process.
23 If the detention of the prisoner is by reason of lawful public authority, the return is considered prima
facie evidence of the validity of the restraint and the petitioner has the burden of proof to show that the
restraint is illegal. Thus, Section 13 of Rule 102 of the Rules of Court provides:jgc:chanrobles.com.ph

"SECTION 13. When the return evidence, and when only a plea. — If it appears that the prisoner is in
custody under a warrant of commitment in pursuance of law, the return shall be considered prima facie
evidence of the cause of restraint, but if he is restrained of his liberty by any alleged private authority,
the return shall be considered only as a plea of the facts therein set forth, and the party claiming the
custody must prove such facts."cralaw virtua1aw library

Public respondents having sufficiently shown good ground for the detention, petitioner’ s release from
confinement is not warranted under Section 4 of Rule 102 of the Rules of Court which provides that —

"SECTION 4. When writ not allowed or discharge authorized. — If it appears that the person alleged to
be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by
virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue
the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction
appears after the writ is allowed, the person shall not be discharged by reason of any informality or
defect in the process, judgment, or order. Nor shall anything in this rule be held to authorize the
discharge of a person charged with or convicted of an offense in the Philippines, or of a person suffering
imprisonment under lawful judgment."cralaw virtua1aw library

In the case of Gomez v. Director of Prisons, 77 Phil. 458 (1946), Accused was convicted by the trial court
of the crime of rape, and was committed to the New Bilibid Prison. Pending appeal with the Court of
Appeals, the records of the case were, for reasons undisclosed, completely destroyed or lost. Accused
then filed a petition for the issuance of the writ of habeas corpus with the Supreme Court. The Court

854
denied the petition, ruling thus:jgc:chanrobles.com.ph

"The petition does not make out a case. The Director of Prisons is holding the prisoner under process
issued by a competent court in pursuance of a lawful, subsisting judgment. The prisoner himself admits
the legality of his detention. The mere loss or destruction of the record of the case does not invalidate
the judgment or the commitment, or authorize the prisoner’s release." chanrobles virtuallawlibrary

Note further that, in the present case, there is also no showing that petitioner duly appealed his
conviction of the crime of Robbery with Homicide, hence for all intents and purposes, such judgment
has already become final and executory. When a court has jurisdiction of the offense charged and of the
party who is so charged, its judgment, order, or decree is not subject to collateral attack by habeas
corpus. 24 Put another way, in order that a judgment may be subject to collateral attack by habeas
corpus, it must be void for lack of jurisdiction. 25 Thus, petitioner’s invocation of our ruling in Reyes v.
Director of Prisons, supra, is misplaced. In the Reyes case, we granted the writ and ordered the release
of the prisoner on the ground that" [i]t does not appear that the prisoner has been sentenced by any
tribunal duly established by a competent authority during the enemy occupation" and not because there
were no copies of the decision and information. Here, a copy of the mittimus is available. And, indeed,
petitioner does not raise any jurisdictional issue.

The proper remedy in this case is for either petitioner or public respondents to initiate the
reconstitution of the judgment of the case under either Act No. 3110, 26 the general law governing
reconstitution of judicial records, or under the inherent power of courts to reconstitute at any time the
records of their finished cases in accordance with Section 5 (h) of Rule 135 of the Rules of Court. 27
Judicial records are subject to reconstitution without exception, whether they refer to pending cases or
finished cases. 28 There is no sense in limiting reconstitution to pending cases; finished cases are just as
important as pending ones, as evidence of rights and obligations finally adjudicated. 29

Petitioner belabors the fact that no initiative was taken by the Government to reconstitute the missing
records of the trial court. We reiterate, however, that "reconstitution is as much the duty of the
prosecution as of the defense." 30 Petitioner’s invocation of Ordoñez v. Director of Prisons, 235 SCRA
152 (1994), is misplaced since the grant of the petition for habeas corpus therein was premised on the
loss of records prior to the filing of Informations against the prisoners, and therefore" [t]he government
has failed to show that their continued detention is supported by a valid conviction or by the pendency
of charges against them or by any legitimate cause whatsoever." In this case, the records were lost after
petitioner, by his own admission, was already convicted by the trial court of the offense charged.
Further, the same incident which gave rise to the filing of the Information for Robbery with Homicide
also gave rise to another case for Illegal Possession of Firearm, 31 the records of which could be of
assistance in the reconstitution of the present case.

WHEREFORE, the petition is DENIED for lack of merit, and the decision of the Court of Appeals is
AFFIRMED.chanrobles virtuallawlibrary

SO ORDERED.

Estrada v. Desierto, 356 SCRA 8 (supra)

[G.R. No. 96697. March 26, 1992.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JAIME COMPETENTE AND JESUS

COMPETENTE, Accused-Appellants.

The Solicitor General for Plaintiff-Appellee.

Felipe V. Berces for Accused-Appellants.

SYLLABUS

855
1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; NOT AFFECTED BY THEIR INITIAL
RELUCTANCE AND UNWILLINGNESS TO BE INVOLVED IN CRIMINAL INVESTIGATION. — Eyewitness Rosita
Galan’s failure to report the incident until 18 May 1986 because she did not want to be involved is not a
sufficient basis for rejecting her testimony. The initial reluctance of witnesses and their unwillingness to
be involved in criminal investigations, are common and have been judicially declared not to affect
credibility (People v. Pacia. No. 89543, 14 June 1990, 186 SCRA 529).

2. ID.; ID.; ID.; NOT AFFECTED BY FAILURE TO IMMEDIATELY REVEAL THE IDENTITY OF ASSAILANTS; CASE
AT BAR. — Pursuing their attack on the credibility of prosecution witnesses, Accused-appellants further
aver that the testimony of the Victim’s eight (8)-year-old son, Sonny Dacir, is unreliable because of his
failure to immediately reveal to his mother the identity of his father’s assailants, which is allegedly
contrary to human conduct. The fact remains, however, that he knew that his mother had witnessed the
incident herself. And if he did not tell the police or the barangay authorities, it was because they did not
ask him any questions.

3. ID.; ID.; HEARSAY EVIDENCE; FAILURE TO OBJECT THERETO CONSTITUTE A WAIVER OF THE RIGHT TO
CROSS-EXAMINE THE ACTUAL WITNESS; CASE AT BAR. — Accused-appellants also attack as hearsay
Rosita’s testimony that when the victim was approaching, she heard appellant-father say "here he is,
here he is" and heard Aurora Competente confront her son Jaime "why do you have to join your
father?" For one, however, the failure of accused-appellants to object to hearsay evidence, constitutes a
waiver of the right to cross-examine the actual witness to the occurrence, thereby rendering the
evidence admissible (People v. Garcia, L-44364, 27 April 1979, 83 SCRA 440). For another, the
testimonies aforesaid were offered to prove the fact of utterances regardless of their truth and,
therefore, were not hearsay. In any case, the utterances can be considered as part of the res gestae,
having been made during the incident (Rule 130, sec. 36, Rules of Court).

4. ID.; ID.; MOTIVE; NOT ESSENTIAL TO CONVICTION WHEN ACCUSED ARE POSITIVELY IDENTIFIED. —
Additionally, the defense further claims that the prosecution failed to establish the motive behind the
incident. The accepted dictum is, however, that motive is not essential to conviction when the accused
as in this case, are positively identified and there is no doubt as to their identity (Andaya v. People, G. R.
No. 75930, 8 June 1990. 188 SCRA 410).

5. ID.; ID.; ALIBI; CANNOT PREVAIL OVER THE POSITIVE IDENTIFICATION OF THE ACCUSED. — The mere
denial by appellant-father of the act of strangling the Victim can not prevail over the positive
identification of him by prosecution witnesses. Moreover, the autopsy findings confirm that fact of
strangulation. That autopsy report also supports the Provincial Fiscal’s conclusion that Bacho could not
have been the culprit as the latter never mentioned the strangling in his demonstration contrary to the
physical finding of the examining physician. Of note as well is the circumstance that appellant-father’s
version of the incident is contrary to human experience. After having been stabbed, the Victim could not
be expected to still run after Bacho, who was then allegedly armed with a kitchen knife, and to knock on
the door of the Competente house. Said Victim was so badly wounded that he died soon after arrival at
the hospital. He was in no position, therefore, to run after his alleged assailant.

6. ID.; ID.; ID.; WEAK IF ESTABLISHED MERELY BY ACCUSED THEMSELVES AND THEIR RELATIVES.
Appellant-son’s defense of alibi contains no semblance of truth. Aside from the fact that it can not
prevail over positive identification, it has been held that alibi is weak if established merely by the
accused themselves and their relatives and not by credible persons (People v. Solis, G. R. No. 93629, 18
March 1991, 195 SCRA 405). It also taxes credulity that appellant-son would have slept from 11:30 A.M.
to 3:00 P.M. while their guests were celebrating the baptism of his son and at the height of the barangay
"fiesta."cralaw virtua1aw library

7. ID.; CRIMINAL PROCEDURE; CONVICTION; VALIDITY THEREOF NOT AFFECTED BY THE CIRCUMSTANCE
THAT THE JUDGE WHO RENDERED THE JUDGMENT WAS NOT THE ONE WHO HEARD THE WITNESSES. —
The circumstance that the Judge who rendered the judgment was not the one who heard the witnesses,
does not detract from the validity of the verdict of conviction. Even a cursory perusal of the Decision
would show that it was based on the evidence presented during trial and that it was carefully studied,

856
with testimonies on direct and cross examination as well as questions from the Court carefully passed
upon.

8. ID.; ID.; BAIL; WHEN NOT AVAILABLE; RULE; CASE AT BAR. — The Court notes with dismay, however,
that the Court a quo "allowed provisional liberty on the same bail bond" to accused-appellants (Original
record, Order, p. 730). That is a clear reversible error considering that they were sentenced to reclusion
perpetua and that with their conviction evidence of their guilt can not but be strong.

9. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; NOT APPRECIATED IN

CASE AT BAR. — We agree with the defense, however, that evident premeditation was incorrectly
considered by the Trial Court as a generic aggravating circumstance. There is insufficient showing that
father and son had previously conceived of the commission of the crime and had manifestly indicated
that they had clung to their determination. In fact, the evidence is hazy as to whether or not they had
taken part in the stoning.

10. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY; PRESENT IN CASE AT BAR. — But treachery was,
indeed, present. Appellant-son’s act of stabbing the Victim while his father was strangling the latter who
was lying face down flat on the ground indicates that both father and son had employed means tending
to as it did insure the execution of the act of killing without risk to themselves which could have arisen
from the defense which the Victim could have made. Having tripped and fallen flat on his face on the
ground. the Victim was in no position to defend himself. Apropos it is to recall that the Victim was hit on
the back above his right hip bone. The crime has been correctly categorized, therefore, as Murder.

DECISION

MELENCIO-HERRERA, J.:

The "fiesta" of Barangay Bano, Tiwi, Albay, on 15 May 1986, was marred by the death of Nestor Dacir, a
Barangay Tanod. Charged with Murder for having strangled and stabbed him to death were accused-
appellants Jesus Competente and Jaime Competente, father and son, respectively. They were alleged to
have conspired and helped each other in treacherously attacking said Victim. On their plea of "not
guilty," they were tried and convicted to suffer reclusion perpetua and to indemnify the deceased’s heirs
in the sum of P30,000.00 as compensatory damages. They are now before this Court appealing that
verdict of the Regional Trial Court of Tabaco, Albay. 1

Prosecution eyewitnesses. Rosita Galan, Sonny Dacir, the Victim’s 8-year old son, and Antonio Calmada,
narrated the occurrence more or less in the following tenor: The houses of the Victim, the Competentes,
and one Eddie Gutierrez, in Barangay Bano, are near one another. On 15 May 1988, Rosita went to Eddie
Gutierrez house at Barangay Bano to attend the fiesta. The latter is her brother-in-law. She knows
accused-appellants, they being neighbors of her brother-in-law. She likewise knew the Victim, being her
brother-in-law’s friend. At about 1:00 o’clock P.M. of 15 May 1986, at Barangay Bano, while she was
attending to Eddie Gutierrez children in the front yard, she heard the Victim’s house stoned thrice by
four men, whom she failed to identify. The victim went out to verify and saw the perpetrators run
towards the house of the Competentes. The Victim followed them. As the latter was approaching, Rosita
and Antonio Calmada heard appellant-father (Jesus), who was then at their yard, say "Here he is, here
he is." As fate would have it, the victim tripped and fell flat on his face. Immediately, the appellant-
father sat astride the Victim’s back and strangled him on the neck. Suddenly, the appellant-son (Jaime)
arrived at the scene and positioning himself behind his father, stabbed the Victim with a kitchen knife on
the right side of his body, slightly above the his bone. The son hurriedly retreated to their house but the
father continued strangling the victim until his wife, Aurora, told him: "Jesus. Jesus tama na, nakadamay
na ang aqui mo" (Jesus, Jesus, that is enough, your son is already involved). Only then did appellant-
father release his hold on the Victim’s neck. Aurora also confronted her son as to why he had to join his
father. Prosecution witness Antonio Calmada saw the strangling of the Victim by appellant-father but
did not see the stabbing.

857
Seeing the incident, Rosita Galan shouted and screamed for help. Eddie Gutierrez and Antonio Calmada
responded and seeing the Victim flat on his face and bloodied, put him on a tricycle and took him to the
hospital where he died upon arrival.

Appellants-father-and-son denied the charges against them claiming that one Feliciano Bacho was the
culprit; that the latter had admitted the commission of the crime, and was accordingly charged with
Homicide in Criminal Case No. 2495.

Appellant-father contended that at about 1:00 o’clock P.M. on the day of the fiesta, while he was in the
"sala," Emerita Colina, one of his visitors, stood and said "there is a quarrel outside the house." Emerita
went out and said "Ay, Nestor was stabbed by Bacho." He went out, of his house and saw the Victim
chasing Bacho. When he sensed that the Victim was approaching his house, he went inside and closed
the door. The Victim tapped on the door and asked that he be allowed inside thinking that Bacho was
also therein. He opened the door and pushed him out but the Victim, turn, pushed him in. He then
advised the Victim to go to the hospital. Defense witness Loreto Rodrigueza corroborated the foregoing
version.

P/Sgt. Wilfredo Bermas also declared that in the course of the investigation he had conducted, Bacho
confided to him that he had stabbed the Victim. Appellant-son, for his part, claimed that after the
baptism of his child, he had a drinking spree with the latter’s sponsor. He got drunk and fell asleep at
about 11:30 in the morning and after he woke up at around 3:30 in the afternoon he heard that the
Victim was stabbed by Bacho.

Assessing the different versions, the Court a quo accorded more credence to that of the prosecution and,
as initially stated, rendered a verdict of guilt.

The errors that accused-appellants fault the Trial Court with center on the issue of credibility, as well as
on the finding that the circumstances of evident premeditation, treachery and superior strength
attended the commission of the offense.

We find no room for reversal.

The defense insists that it was Feliciano Bacho who committed the crime. It stresses that the Victim’s
wife, Teresita Dacir, even cooperated with the INP Tiwi Police in filing Criminal Case No. 2495 for
Homicide against Bacho et als., only to change her mind after the preliminary investigation had been
conducted and thereafter pinpointing father and son instead.

The records disclose, however, that in her Affidavit, taken on 16 May 1986 (Exh. 5), or the day after the
fatal incident, she had already disclosed:jgc:chanrobles.com.ph

"6. Q Who were those person or persons responsible to (sic) the death of your husband, if you know?

"A I am suspecting JESUS COMPETENTE and his son, JAIME COMPETENTE as I’ve witnessed NESTOR
DACIR strangled on his neck by JESUS COMPETENTE. and his companions who (sic) I do not know their
names.

"8. Q Why did you happen to suspect JESUS COMPETENTE and his son JAIME to be the suspect in this
particular case to include their companions?

A Because I have seen JESUS COMPETENTE strangle my husband. While JAIME COMPETENTE was also
there and several others.

10. Q Showing to you, persons in the name (sic) of FELICIANO BACHO, JESUS BACHO, JUSTINIANO
BACHO and DANNY COMPETENTE, what can you say about them?

A They were the same persons who stoned our house."cralaw virtua1aw library

Evidently, therefore, even the day after the fateful occurrence, the Victim’s wife had already identified

858
accused-appellants as the assailants of the husband and Feliciano Bacho as one of those who had stoned
the Victim’s house.

Moreover, in the Re-investigation of Crime. Case No. MT-2495 against Feliciano Bacho. and I.S. No. 86-
1924 against father and son, the Provincial Fiscal concluded, in a Resolution dated 28 November 1986,
that he was "firmly convinced that Feliciano Bacho was not the one who stabbed Nestor Dacir, despite
his demonstration and extra-judicial confession." He then ordered the case against Bacho dismissed and
"that an information for murder be filed against Jesus Competente and Jaime Competente with the
Regional Trial Court of Tabaco, Albay (Original records, pp. 58-61).

That should settle the matter of Bacho’s culpability irrespective of the asseverations of the defense to
the contrary and the alleged "change of mind" of the Victim’s widow.

Eyewitness Rosita Galan’s failure to report the incident until 18 May 1986 because she did not want to
be involved is not a sufficient basis for rejecting her testimony. The initial reluctance of witnesses and
their unwillingness to be involved in criminal investigations, are common and have been judicially
declared not to affect credibility (People v. Pacia. No. 89543, 14 June 1990, 186 SCRA 529).chanrobles
virtual lawlibrary

The defense further assails Rosita Galan’s testimony that at about 1:00 P.M. she was attending to the
Gutierrez children at the front yard of the latter’s residence as being inconsistent with physical facts in
that it was very hot at the time. That is not necessarily so, however, as there were trees in the area (Exh.
D, p. 48, original record).

Accused-appellants also attack as hearsay Rosita’s testimony that when the victim was approaching, she
heard appellant-father say "here he is, here he is" and heard Aurora Competente confront her son Jaime
"why do you have to join your father?" For one, however, the failure of accused-appellants to object to
hearsay evidence, constitutes a waiver of the right to cross-examine the actual witness to the
occurrence, thereby rendering the evidence admissible (People v. Garcia, L-44364, 27 April 1979, 83
SCRA 440). For another, the testimonies aforesaid were offered to prove the fact of utterances
regardless of their truth and, therefore, were not hearsay. In any case, the utterances can be considered
as part of the res gestae, having been made during the incident (Rule 130, sec. 36, Rules of
Court).cralawnad

Pursuing their attack on the credibility of prosecution witnesses, Accused-appellants further aver that
the testimony of the Victim’s eight (8)-year-old son, Sonny Dacir, is unreliable because of his failure to
immediately reveal to his mother the identity of his father’s assailants, which is allegedly contrary to
human conduct. The fact remains, however, that he knew that his mother had witnessed the incident
herself. And if he did not tell the police or the barangay authorities, it was because they did not ask him
any questions.

Additionally, the defense further claims that the prosecution failed to establish the motive behind the
incident. The accepted dictum is, however, that motive is not essential to conviction when the accused
as in this case, are positively identified and there is no doubt as to their identity (Andaya v. People, G. R.
No. 75930, 8 June 1990. 188 SCRA 410).

We turn now to the testimonies of accused-appellants and their witnesses which, according to the
defense, were incorrectly rejected by the Trial Court. The records do not bear this out.

The mere denial by appellant-father of the act of strangling the Victim can not prevail over the positive
identification of him by prosecution witnesses. Moreover, the autopsy findings confirm that fact of
strangulation. To quote:jgc:chanrobles.com.ph

"I — External —

1. Neck at the level of the Adam’s Apple

Right — Wounds, superficial, near each other, 6 in number, 3 of which are abraded and 3 are scratches.

859
Left — Abrasion 3 in number, near each other."cralaw virtua1aw library

That autopsy report also supports the Provincial Fiscal’s conclusion that Bacho could not have been the
culprit as the latter never mentioned the strangling in his demonstration contrary to the physical finding
of the examining physician. Of note as well is the circumstance that appellant-father’s version of the
incident is contrary to human experience. After having been stabbed, the Victim could not be expected
to still run after Bacho, who was then allegedly armed with a kitchen knife, and to knock on the door of
the Competente house. Said Victim was so badly wounded that he died soon after arrival at the hospital.
He was in no position, therefore, to run after his alleged assailant.

Appellant-son’s defense of alibi contains no semblance of truth. Aside from the fact that it can not
prevail over positive identification, it has been held that alibi is weak if established merely by the
accused themselves and their relatives and not by credible persons (People v. Solis, G. R. No. 93629, 18
March 1991, 195 SCRA 405). It also taxes credulity that appellant-son would have slept from 11:30 A.M.
to 3:00 P.M. while their guests were celebrating the baptism of his son and at the height of the barangay
"fiesta."cralaw virtua1aw library

Correctly rejected by the Trial Court, too, were the testimonies of the other defense witnesses. Thus, the
testimony of Roberto Cope that he saw eyewitness Rosita Galan in the house of her father-in-law
Dioscoro Galan at nearby Barangay Sugod from 11:00 A.M. to 2:00 P.M. can hardly be given weight. The
fiesta was in Barangay Bano not in Barangay Sugod. Besides, it is strange for Roberto to have kept watch
on the exact whereabouts of Rosita from 11:00 A.M. to 2:00 P.M.

The testimonies of Loreto Rodrigueza, Emerita Colina and Domingo Dacoco, Jr. echo appellant-father’s
version that it was Bacho who had stabbed the Victim and can neither be appreciated in the light of the
findings of the Provincial Fiscal. There is the added consideration that most of them are close relations
of accused-appellants who can normally be expected to be biased in their favor, absent credible
indications to the contrary.

Nor can the testimony of P/Sgt Wilfredo Bermas be treated differently. He stated that it was Bacho, not
the Competentes. who was the culprit; that when he investigated Bacho. the latter confided to him that
he had killed the Victim; and that a criminal complaint was filed against Bacho, which complaint did not
include appellant-father-and-son; subsequently, though, they were included because of the insistence of
the Victim’s wife. However, considering the result of the re-investigation by the Provincial Fiscal, it is
clear that P/Sgt. Bermas investigation was hasty and the complaint he filed the next day after the
incident unreliable. The re-investigation report likewise rebuts the presumption that P/Sgt Bermas
performed his duties in a regular manner.

The circumstance that the Judge who rendered the judgment was not the one who heard the witnesses,
does not detract from the validity of the verdict of conviction. Even a cursory perusal of the Decision
would show that it was based on the evidence presented during trial and that it was carefully studied,
with testimonies on direct and cross examination as well as questions from the Court carefully passed
upon.

We agree with the defense, however, that evident premeditation was incorrectly considered by the Trial
Court as a generic aggravating circumstance. There is insufficient showing that father and son had
previously conceived of the commission of the crime and had manifestly indicated that they had clung to
their determination. In fact, the evidence is hazy as to whether or not they had taken part in the stoning.

But treachery was, indeed, present. Appellant-son’s act of stabbing the Victim while his father was
strangling the latter who was lying face down flat on the ground indicates that both father and son had
employed means tending to as it did insure the execution of the act of killing without risk to themselves
which could have arisen from the defense which the Victim could have made. Having tripped and fallen
flat on his face on the ground. the Victim was in no position to defend himself. Apropos it is to recall that
the Victim was hit on the back above his right hip bone. The crime has been correctly categorized,
therefore, as Murder.chanrobles.com : virtual law library

860
The Court notes with dismay, however, that the Court a quo "allowed provisional liberty on the same
bail bond" to accused-appellants (Original record, Order, p. 730). That is a clear reversible error
considering that they were sentenced to reclusion perpetua and that with their conviction evidence of
their guilt can not but be strong. For this act, the Trial Judge deserves the severest censure, which we
are constrained to impose on her in this case.

WHEREFORE, except for the modification of the indemnity to the heirs of the victim, Nestor Dacir, which
is hereby increased to P50,000.00 in line with current jurisprudence, the judgment appealed from is
hereby AFFIRMED.

Let a Warrant of Arrest issue immediately against accused-appellants Jaime Competente and Jesus
Competente.

They shall each bear one-half of the costs.

SO ORDERED.

Paras, Padilla, Regalado and Nocon, JJ., concur.

[G.R. No. 138084. April 10, 2002.]

MALAYAN INSURANCE, CO., INC., Petitioner, v. PHILIPPINE NAILS AND WIRES

CORPORATION, Respondent.

DECISION

QUISUMBING, J.:

This petition for review seeks the reversal of the decision dated September 30, 1998, of the Court of
Appeals in CA-G.R. CV No. 45547, affirming the decision dated December 10, 1993, of the Regional Trial
Court of Pasig, Metro Manila, Branch 163, and the resolution dated March 25, 1999, of the Court of
Appeals denying the petitioner’s motion for reconsideration. 1chanrob1es virtua1 1aw 1ibrary

Respondent Philippine Nails and Wires Corporation insured against all risks its shipment of 10,053.400
metric tons of steel billets valued at P67,156,300 with petitioner Malayan Insurance Company Inc. The
shipment delivered was short by 377.168 metric tons. For this shortage, respondent claimed insurance
for P2,698,637.04, representing the value of undelivered steel billets, plus customs duties, taxes and
other charges paid by Respondent. Petitioner refused to pay.

On July 28, 1993, respondent filed a complaint against petitioner for sum of money with the RTC of Pasig
representing said lost and/or undelivered cargo. Petitioner moved to dismiss the complaint on the
grounds that it failed to state a cause of action, and that it was filed in the wrong venue. The motion was
denied. It thus filed a petition for prohibition with the Court of Appeals. This was also denied. Upon
motion for reconsideration, the petition was reinstated. However, it was eventually dismissed by the
Court of Appeals, and its dismissal became final and executory.

On September 8, 1993, respondent filed a motion to admit an amended complaint which the trial court
granted. It sent petitioner summons and a copy of the complaint on October 13, 1993 and also gave
petitioner until October 31, 1993 to file its answer.

On November 4, 1993, respondent moved to declare petitioner in default. The trial court granted and
allowed the presentation of evidence ex parte before the branch clerk of court. Respondent presented
its lone witness, Jeanne King.

On November 11, 1993, petitioner filed its answer with compulsory counterclaim. Upon motion by the
respondent, the trial court expunged from the records the answer for late filing.

861
On December 10, 1993, the trial court rendered a judgment by default which reads:chanrob1es virtual
1aw library

WHEREFORE, premises considered, Judgment is hereby rendered in favor of plaintiff and against
defendant, ordering the latter to pay the following:chanrob1es virtual 1aw library

1. P2,532,926.53 representing the insured value of the lost and/or not delivered 377.168 metric tons of
steel billets plus legal rate of interest from date of filing of this complaint until fully paid;

2. Fifteen (15) percent of the amount awarded to plaintiff as attorney’s fees; and

3. Cost of suit.

SO ORDERED. 2

Respondent moved to execute judgment pending appeal. The trial court granted the motion. Meanwhile,
petitioner filed its notice of appeal which was given due course.

Pursuant to the grant of the motion for execution, the trial court issued the corresponding writ.
Petitioner filed a petition for certiorari with prayer for a temporary restraining order to enjoin the
implementation of the writ. The Court of Appeals granted the prayer for the temporary restraining order.
The writ of execution was likewise stayed by the trial court which favorably considered petitioner’s
urgent motion to stay execution pending appeal and to approve the supersedeas bond.

Pursuant to the notice of appeal, the entire records of the case were elevated to the Court of Appeals,
where petitioner argued that the trial court erred in rendering judgment by default notwithstanding that
issues were joined by petitioner’s filing of an answer; in awarding damages to respondent based on
unauthenticated documentary evidence and hearsay; and in admitting documentary evidence which is
irregular in nature and not in accordance with the Rules of Court.

The Court of Appeals concurred with the trial court and disposed the case thus:chanrob1es virtual 1aw
library

WHEREFORE, premises considered, there being no reversible error committed by the lower court, the
judgment appealed from is hereby AFFIRMED in toto. 3

The Court of Appeals held that the trial court did not abuse its discretion nor err when it expunged the
answer from the records because petitioner answered way beyond the prescribed period. It further held
that respondent’s witness, Jeanne King, was a competent witness because she personally prepared the
documentary evidence and had personal knowledge of the allegations in the complaint. In addition, the
appellate court said that conclusions and findings of fact of the trial courts were entitled to great weight
on appeal and should not be disturbed unless for strong and cogent reasons, which were not present in
this case. Lastly, the absence of a written report by the branch clerk of court on the ex parte
proceedings did not necessarily deny petitioner due process. Nothing in the Rules of Court stated that
the absence of the commissioner’s written report nullified a judgment by default. The appellate court
observed that if there was a defect, such was only procedural that can be waived. Besides, petitioner
was declared in default because of its own failure to answer within the prescribed period. It cannot
claim denial of due process because it was given the opportunity to be heard.chanrob1es virtua1 1aw
1ibrary

Petitioner’s motion for reconsideration was denied, hence, this petition alleging that the Court of
Appeals erred and acted contrary to existing law and jurisprudence in:chanrob1es virtual 1aw library

I. . . . GIVING PROBATIVE VALUE TO THE PURELY HEARSAY TESTIMONY OF RESPONDENT’S SOLE WITNESS.

II. . . . AFFIRMING THE DECISION OF THE TRIAL COURT WHICH WAS BASED ON DOCUMENTARY
EVIDENCE ADMITTED WITHOUT BEING PROPERLY AUTHENTICATED. 4

862
For resolution now are the following issues: Was Jeanne King’s testimony hearsay, thus without any
probative value? Should respondent authenticate the documentary evidence it submitted at the trial?

On the first issue, petitioner Malayan Insurance Co., Inc., contends that Jeanne King’s testimony was
hearsay because she had no personal knowledge of the execution of the documents supporting
respondent’s cause of action, such as the sales contract, invoice, packing list, bill of lading, SGS Report,
and the Marine Cargo Policy. Petitioner avers that even though King was personally assigned to handle
and monitor the importation of Philippine Nails and Wires Corporation, herein respondent, this cannot
be equated with personal knowledge of the facts which gave rise to respondent’s cause of action.
Further, petitioner asserts, even though she personally prepared the summary of weight of steel billets
received by respondent, she did not have personal knowledge of the weight of steel billets actually
shipped and delivered.

At the outset, we must stress that respondent’s cause of action is founded on breach of insurance
contract covering cargo consisting of imported steel billets. To hold petitioner liable, respondent has to
prove, first, its importation of 10,053.400 metric tons of steel billets valued at P67,156,300.00, and
second, the actual steel billets delivered to and received by the importer, namely the Respondent.
Witness Jeanne King, who was assigned to handle respondent’s importations, including their insurance
coverage, has personal knowledge of the volume of steel billets being imported, and therefore
competent to testify thereon. Her testimony is not hearsay, as this doctrine is defined in Section 36, Rule
130 of the Rules of Court. 5

However, she is not qualified to testify on the shortage in the delivery of the imported steel billets. She
did not have personal knowledge of the actual steel billets received. Even though she prepared the
summary of the received steel billets, she based the summary only on the receipts prepared by other
persons. Her testimony on steel billets received was hearsay. It has no probative value even if not
objected to at the trial. 6

On the second issue, petitioner avers that King failed to properly authenticate respondent’s
documentary evidence. Under Section 20, Rule 132, Rules of Court, 7 before a private document is
admitted in evidence, it must be authenticated either by the person who executed it, the person before
whom its execution was acknowledged, any person who was present and saw it executed, or who after
its execution, saw it and recognized the signatures, or the person to whom the parties to the
instruments had previously confessed execution thereof. In this case, respondent admits that King was
none of the aforementioned persons. She merely made the summary of the weight of steel billets based
on the unauthenticated bill of lading and the SGS report. Thus, the summary of steel billets actually
received had no proven real basis, and King’s testimony on this point could not be taken at face value.

Petitioner contends that the Court of Appeals erred in giving imprimatur to the trial court’s ruling with
regard to the admission of documentary evidence submitted by Respondent. On this score, we find
petitioner’s contention meritorious. Under the rules on evidence, documents are either public or private.
Private documents are those that do not fall under any of the enumerations in Section 19, Rule 132 of
the Rules of Court 8 Section 20 9 of the same law, in turn, provides that before any private document is
received in evidence, its due execution and authenticity must be proved either by anyone who saw the
document executed or written, or by evidence of the genuineness of the signature or handwriting of the
maker. Here, respondent’s documentary exhibits are private documents. They are not among those
enumerated in Section 19, thus, their due execution and authenticity need to be proved before they can
be admitted in evidence. With the exception concerning the summary of the weight of the steel billets
imported, respondent presented no supporting evidence concerning their authenticity. 10 Consequently,
they cannot be utilized to prove less of the insured cargo and/or the short delivery of the imported steel
billets. In sum, we find no sufficient competent evidence to prove petitioner’s liability.chanrob1es
virtua1 1aw 1ibrary

WHEREFORE, the petition is GRANTED. The decision of the Court of Appeals dated September 30, 1998
and its resolution on March 25, 1999 in CA-G.R. CV No. 45547 are REVERSED and SET ASIDE. In lieu
thereof, Civil Case No. 63445 is hereby ordered DISMISSED.chanrob1es virtua1 1aw 1ibrary

No pronouncement as to costs.

863
SO ORDERED.

Bellosillo, Mendoza and De Leon, Jr., JJ., concur.

[G.R. No. 128538. February 28, 2001.]

SCC CHEMICALS CORPORATION, Petitioner, v. THE HONORABLE COURT OF APPEALS, STATE

INVESTMENT HOUSE, INC., DANILO ARRIETA and LEOPOLDO HALILI, Respondents.

RESOLUTION

QUISUMBING, J.:

Before us is a petition for review, pursuant to Rule 45 of the Rules of Court, of the Decision of the Court
of Appeals dated in November 12, 1996 in CA-G.R. CV No. 45742 entitled "State Investment House, Inc.,
v. Danilo Arrieta, Et Al., and SCC Chemical Corporation." The questioned decision affirmed in toto the
decision of the Regional Trial Court of Manila, Branch 33, dated March 22, 1993, in Civil Case No. 84-
25881, the dispositive portion of which reads:chanrob1es virtua1 1aw 1ibrary

WHEREFORE, premises considered, judgment is hereby rendered in favor of the plaintiff and against the
defendants ordering the latter to pay jointly and severally the plaintiff the following: a) To pay plaintiff
State Investment House, Inc., the sum of P150,483.16 with interest thereon at 30% per annum reckond
(sic) from April, 1984 until the whole amount is fully paid; b) To pay plaintiff an amount equivalent to
25% of the total amount due and demandable as attorney’s fees and to pay the cost(s) of suit.

SO ORDERED. 1

Equally challenged in this petition is the Resolution of the appellate court dated February 27, 1997,
denying SCC Chemicals Corporation’s motion for reconsideration.

The background of this case, as culled from the decision of the Court of Appeals, is as
follows:chanrob1es virtual 1aw library

On December 13, 1983, SCC Chemicals Corporation (SCC for brevity) through its chairman, private
respondent Danilo Arrieta and vice president, Pablo (Pablito) Bermundo, obtained a loan from State
Investment House Inc., (hereinafter SIHI) in the amount of P129,824.48. The loan carried an annual
interest rate of 30% plus penalty charges of 2% per month on the remaining balance of the principal
upon non-payment on the due date-January 12, 1984. To secure the payment of the loan, Danilo Arrieta
and private respondent Leopoldo Halili executed a Comprehensive Surety Agreement binding
themselves jointly and severally to pay the obligation on the maturity date. SCC failed to pay the loan
when it matured. SIHI then sent demand letters to SCC, Arrieta and Halili, but notwithstanding receipt
thereof, no payment was made.

On August 2, 1984, SIHI filed Civil Case No. 84-25881 for a sum of money with a prayer for preliminary
attachment against SCC, Arrieta, and Halili with the Regional Trial Court of Manila.

In its answer, SCC asserted SIHI’s lack of cause of action. Petitioner contended that the promissory note
upon which SIHI anchored its cause of action was null, void, and of no binding effect for lack or failure of
consideration.

The case was then set for pre-trial. The parties were allowed to meet out-of-court in an effort to settle
the dispute amicably. No settlement was reached, but the following stipulation of facts was agreed
upon:chanrob1es virtual 1aw library

1. Parties agree that this Court has jurisdiction over the plaintiff and the defendant and that it has
jurisdiction to try and decide this case on its merits and that plaintiff and the defendant have each the

864
capacity to sue and to be sued in this present action;

2. Parties agree that plaintiff sent a demand letter to the defendant SCC Chemical Corporation dated
April 4, 1984 together with a statement of account of even date which were both received by the herein
defendant; and

3. Parties finally agree that the plaintiff and the defendant SCC Chemical Corporation the latter acting
through defendants Danilo E. Arrieta and Pablito Bermundo executed a promissory note last December
13, 1983 for the amount of P129,824.48 with maturity date on January 12, 1984. 2

The case then proceeded to trial on the sole issue of whether or not the defendants were liable to the
plaintiff and to what extent was the liability.

SIHI presented one witness to prove its claim. The cross-examination of said witness was postponed
several times due to one reason or another at the instance of either party. The case was calendared
several times for hearing but each time, SCC or its counsel failed to appear despite notice. SCC was
finally declared by the trial court to have waived its right to cross-examine the witness of SIHI and the
case was deemed submitted for decision.

On March 22, 1993, the lower court promulgated its decision in favor of SIHI.

Aggrieved by the verdict, SCC elevated the case to the Court of Appeals where it was docketed as CA-G.R.
CV No. 45742.

On appeal, SCC contended that SIHI had failed to show, by a preponderance of evidence, that the latter
had a case against it. SCC argued that the lone witness presented by SIHI to prove its claim was
insufficient as the competency of the witness was not established and there was -no showing that he
had personal knowledge of the transaction. SCC further maintained that no proof was shown of the
genuineness of the signatures in the documentary exhibits presented as evidence and that these
signatures were neither marked nor offered in evidence by SIHI. Finally, SCC pointed out that the
original copies of the documents were not presented in court.chanrob1es virtua1 1aw 1ibrary

On November 12, 1996, the appellate court affirmed in toto the judgment appealed from.

On December 11, 1996 SCC filed its motion for reconsideration, which the Court of Appeals denied in its
resolution dated February 27, 1997.

Hence, petitioner’s recourse to this Court relying on the following assignments of error:chanrob1es
virtual 1aw library

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN FINDING THAT PRIVATE RESPONDENT
PROVED ITS CAUSE OF ACTION AND OVERCAME ITS BURDEN OF PROOF.

II

THE RESPONDENT COURT OF APPEALS GRAVELY ERRED IN AWARDING ATTORNEY’S FEES TO THE
PRIVATE RESPONDENT.

We find the pertinent issues submitted for resolution to be:chanrob1es virtual 1aw library

(1) Whether or not the Court of Appeals made an error of law in holding that private respondent SIHI
had proved its cause of action by preponderant evidence; and

(2) Whether or not the Court of Appeals erred in upholding the award of attorney’s fees to SIHI.

865
Anent the first issue, petitioner contends that SIHI introduced documentary evidence through the
testimony of a witness whose competence was not established and whose personal knowledge of the
truthfulness of the facts testified to was not demonstrated. It argues that the same was in violation of
Sections 36 3 and 48, 4 Rule 130 of the Rules of Court and it was manifest error for the Court of Appeals
to have ruled otherwise. In addition, SCC points out that the sole witness of SIHI did not profess to have
seen the document presented in evidence executed or written by SCC. Thus, no proof of its genuineness
was adduced. SIHI thus ran afoul of Section 2, 5 Rule 132 of the Rules of Court, which requires proof of
due execution and authenticity of private documents before the same can be received as evidence.
Petitioner likewise submits that none of the signatures affixed in the documentary evidence- presented
by SIHI were offered in evidence. It vehemently argues that such was in violation of the requirement of
Section 34, 6 Rule 132 of the Rules of Court. It was thus an error of law on the part of the appellate court
to consider the same. Finally, petitioner posits that the non-production of the originals of the
documents presented in evidence allows the presumption of suppression of evidence provided for in
Section 3 (e), 7 Rule 131 of the Rules of Court, to come into play.

Petitioner’s arguments lack merit; they fail to persuade us.

We note that the Court of Appeals found that SCC failed to appear several times on scheduled hearing
dates despite due notice to it and counsel. On all those scheduled hearing dates, petitioner was
supposed to cross-examine the lone witness offered by SIHI to prove its case. Petitioner now charges the
appellate court with committing an error of law when it failed to disallow the admission in evidence of
said testimony pursuant to the "hearsay rule" contained in Section 36, Rule 130 of the Rules of Court.

Rule 130, Section 36 reads:chanrob1es virtual 1aw library

SECTION 36. Testimony generally confined to personal knowledge; hearsay excluded. — A witness can
testify only to those facts which he knows of his personal knowledge; that is, which are derived from his
own perception, except as otherwise provided in these rules.

Petitioner’s reliance on Section 36, Rule 130 of the Rules of Court is misplaced. As a rule, hearsay
evidence is excluded and carries no probative value. 8 However, the rule does admit of an exception.
Where a party failed to object to hearsay evidence, then the same is admissible. 9 The rationale for this
exception is to be found in the right of a litigant to cross-examine. It is settled that it is the opportunity
to cross-examine which negates the claim that the matters testified to by a witness are hearsay. 10
However, the right to cross-examine may be waived. The repeated failure of a party to cross-examine
the witness is an implied waiver of such right. Petitioner was afforded several opportunities by the trial
court to cross-examine the other party’s witness. Petitioner repeatedly failed to take advantage of these
opportunities. No error was thus committed by the respondent court when it sustained the trial court’s
finding that petitioner had waived its right to cross-examine the opposing party’s witness. It is now too
late for petitioner to be raising this matter of hearsay evidence.chanrob1es virtua1 1aw 1ibrary

Nor was the assailed testimony hearsay. The Court of Appeals correctly found that the witness of SIHI
was a competent witness as he testified to facts, which he knew of his personal knowledge. Thus, the
requirements of Section 36, Rule 130 of the Rules of Court as to the admissibility of his testimony were
satisfied.

Respecting petitioner’s other submissions, the same are moot and academic. As correctly found by the
Court of Appeals, petitioner’s admission as to the execution of the promissory note by it through private
respondent Arrieta and Bermundo at pre-trial sufficed to settle the question of the genuineness of
signatures. The admission having been made in a stipulation of facts at pre-trial by the parties, it must
be treated as a judicial admission. Under Section 4, 11 Rule 129 of the Rules of Court, a judicial
admission requires no proof.

Nor will petitioner’s reliance on the "best evidence rule" 12 advance its cause. Respondent SIHI had no
need to present the original of the documents as there was already a judicial admission by petitioner at
pre-trial of the execution of the promissory note and receipt of the demand letter. It is now too late for
petitioner to be questioning their authenticity. Its admission of the existence of these documents was
sufficient to establish its obligation. Petitioner failed to submit any evidence to the contrary or proof of

866
payment or other forms of extinguishment of said obligation. No reversible error was thus committed by
the appellate court when it held petitioner liable on its obligation, pursuant to Article 1159 of the Civil
Code which reads:chanrob1es virtual 1aw library

ARTICLE 1159. Obligations arising from contracts have the force of law between the contracting parties
and should be complied with in good faith.

On the second issue, petitioner charges the Court of Appeals with reversible error for having sustained
the trial court’s award of attorney’s fees. Petitioner relies on Radio Communications of the Philippines v.
Rodriguez, 182 SCRA 899, 909 (1990), where we held that when attorney’s fees are awarded, the reason
for the award of attorney’s fees must be stated in the text of the court’s decision. Petitioner submits
that since the trial court did not state any reason for awarding the same, the award of attorney’s fees
should have been disallowed by the appellate court.

We find for petitioner in this regard.

It is settled that the award of attorney’s fees is the exception rather than the rule, hence it is necessary
for the trial court to make findings of fact and law, which would bring the case within the exception and
justify the grant of the award. 13 Otherwise stated, given the failure by the trial court to explicitly state
the rationale for the award of attorney’s fees, the same shall be disallowed. In the present case, a
perusal of the records shows that the trial court failed to explain the award of attorney’s fees. We hold
that the same should thereby be deleted.chanrob1es virtua1 1aw 1ibrary

WHEREFORE, the instant petition is PARTLY GRANTED. The decision dated November 12, 1996 of the
Court of Appeals is AFFIRMED WITH MODIFICATION that the award of attorney’s fees to private
respondent SIHI is hereby deleted. No pronouncement as to costs.

SO ORDERED.

Bellosillo, Mendoza, Buena and De Leon, Jr., JJ., concur.

G. R. No. 146030 - December 3, 2002

REPUBLIC OF THE PHILIPPINES, represented by the Department of Environment and Natural

Resources, Petitioner, vs. HEIRS OF FELIPE ALEJAGA SR., represented by ROQUETA ALEJAGA,
FELIPE ALEJAGA JR., MARIA DULLA ALEJAGA, FELIPE ALEJAGA III, ROQUETA ALEJAGA, JENNIFER
ALEJAGA,
EVERETTE CAPUNDAN, AND LYNETTE ALEJAGA; THE PHILIPPINE NATIONAL BANK and THE REGISTER
OF DEEDS OF ROXAS CITY, Respondents.

DECISION

PANGANIBAN, J.:

We reiterate the familiar doctrine that a free patent obtained through fraud or misrepresentation is void.
Furthermore, the one-year prescriptive period provided in the Public Land Act does not bar the State
from asking for the reversion of property acquired through such means.

Statement of the Case

Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the
November 15, 2000 Decision1 of the Court of Appeals (CA) in CA-GR CV No. 44568. The decretal portion
of the challenged Decision reads as follows:

"WHEREFORE, the appealed decision is hereby REVERSED, SET ASIDE and RECALLED."2

The Facts

867
The factual antecedents of the case are summarized by the CA thus:

"On December 28, 1978, [Respondent] Felipe Alejaga, Sr. x x x filed with the District Land Office, Roxas
City, Free Patent Application No. (VI-2) 8442 covering a parcel of land identified as Lot 1, Mli-06-000020-
D, with an area of .3899 hectares, more or less located at Dumolog, Roxas City (Exh. "A"; Exh "9"). It
appears that on December 27, 1978, when the application was executed under oath, Efren L. Recio,
Land Inspector, submitted a report of his investigation and verification of the land to the District Land
Office, Bureau of Lands, City of Roxas. On March 14, 1979, the District Land Officer of Roxas City
approved the application and the issuance of [a] Free Patent to the applicant. On March 16, 1979, the
patent was also ordered to be issued and the patent was forwarded to defendant Register of Deeds, City
of Roxas, for registration and issuance of the corresponding Certificate of Title. Thereafter, Original
Certificate of Title No. P-15 Free Patent No. (VI-2) 3358 was issued to [respondent] by defendant
Register of Deeds.

"On April 4, 1979, the heirs of Ignacio Arrobang, through counsel in a letter-complaint requested the
Director of Lands, Manila, for an investigation of the District Land Officer, Roxas City, and the Regional
Office, Region VI, Iloilo City, for irregularities in the issuance of the title of a foreshore land in favor of
[respondent]. Isagani Cartagena, Supervising Special Investigator, Legal Division, Land Management
Bureau (formerly Bureau of Lands) submitted his Report dated April 17, 1989. The Chief, Legal Division,
Land Management Bureau, Manila, recommended to the Director of Lands appropriate civil proceeding
for the cancellation of Free Patent Title No. (VI-2) 3358 and the corresponding Original Certificate of
Title No. P-15 in the name of [respondent].

"In the meantime, [respondent] obtained a NACIDA loan under the Cottage Industry Guarantee and
Loan Fund by the defendant Philippine National Bank (hereinafter referred to as PNB) executed in Cebu
City in the amount of P100,000.00 on August 18, 1981. The loan was secured by a real estate mortgage
in favor of defendant PNB. The promissory note of appellant was annotated at the back of the title.

"On April 18, 1990, the government through the Solicitor General instituted an action for
Annulment/Cancellation of Patent and Title and Reversion against [respondent], the PNB of Roxas City
and defendant Register of Deeds of Roxas City covering Free Patent Application (VI-2) 8442 of the parcel
of land with an area of .3899 hectares more or less located at Dumolog, Roxas City.

"On November 17, 1990, while the case is pending hearing, [respondent] died. He was substituted by his
wife Roqueta Alejaga and his children, namely: Everette Alejaga, Lynnette Alejaga, Felipe Alejaga, Jr.,
Maria Dulla Alejaga. Roqueta Alejaga, Jennifer Alejaga and Felipe Alejaga III.

xxx-xxx-xxx

"After hearing, the [trial] court in its dispositive portion decreed as follows:

WHEREFORE, judgment is rendered declaring that the approval of Free Patent Application No. 3358 and
issuance of Original Certificate of Title No. P-15 in the name of Felipe Alejaga is by means of fraud hence,
null and void ab initio and the court orders:

a) the cancellation of the approval of the application No. (VI-2) 8442 covering Lot No. 1, Mli-06-000020-
D with an area of .3899 hectares, more or less, located at Dumulog, Roxas City;

b) the cancellation of Original Certificate of Title No. P-15, Free Patent No. (VI-2) 3358 in the name of
Felipe Alejaga;

c) the land covered thereby as above described is reverted to the mass of the public domain;

d) the defendants, Heirs of Felipe Alejaga Sr. or defendant, Philippine National Bank, Roxas City Branch,
to surrender the owners duplicate copy of above described Original Certificate of Title No. P-15 to the
Register of Deeds (now Registries of Land Titles and Deeds), Roxas City;

868
e) the defendant, Register of Deeds, Roxas City, to cancel Original Certificate of Title No. P-15 and the
owners duplicate copy of said title surrendered by above stated defendants;

f) defendants, Philippine National Bank, cross-claim is dismissed.

"Costs against the defendants Heirs of Felipe, Alejaga, Sr."3

Ruling of the Court of Appeals

In reversing the RTC, the CA ruled that petitioner failed to prove its allegation that respondents had
obtained the free patent and the Certificate of Title through fraud and misrepresentation.4 The
appellate court likewise held that, assuming there was misrepresentation or fraud as claimed by
petitioner, the action for reversion should have been brought within one (1) year from the registration
of the patent with the Registry of Deeds.5

Further, the CA brushed aside as hearsay Isagani Cartagenas testimony that Land Inspector Efren L.
Recio had not conducted an investigation on the free patent application of Felipe Alejaga Sr.6 The CA
added that petitioner had failed to support its claim that the lot covered by respondents free patent and
title was foreshore land.7

Hence, this Petition.8

Issues

Petitioner raises the following issues for this Courts consideration:

"I

The Honorable Court of Appeals erred in not finding that the case is already final and executory as
against respondent PNB.

"II

The Court of Appeals erred in not considering that petitioner has proven the allegations to the
Complaint.

"III

The Honorable Court of Appeals erred in declaring that the action for reversion is unavailing."9

Simply stated, the issues can be summed up into two: (1) the efficacy of the grant of the free patent and
(2) the indefeasibility of the Certificate of Title issued in consequence thereof.

This Courts Ruling

The Petition is meritorious.

First Issue:

Efficacy of the Grant

Petitioner argues that it has proven fraud in the issuance of Respondent Alejagas free patent and
Certificate of Title.10 It also avers that Respondent PNB has failed to file a timely Notice of Appeal.

On the other hand, the Alejagas contend that they have acquired a vested right over the parcel of land
covered by OCT No. P-15 by virtue of their proven open, actual, exclusive and undisputed possession of
the land for more than 30 years.11

869
At the outset, we must immediately clarify that the records show receipt by Respondent PNB of a copy
of the Decision on October 27, not on October 3, 1993 as alleged by petitioner.12 Further, the bank filed
its Notice of Appeal on November 9, 1993, within the 15-day reglementary period.

In addition, we must point out that the essential issue raised in this Petition -- the presence of fraud -- is
factual. As a general rule, this Court does not review factual matters.13 However, the instant case falls
under one of the exceptions, because the findings of the CA conflict with those of the RTC and with the
evidence on record.14

We begin our resolution of this issue with the well-settled rule that the party alleging fraud or mistake in
a transaction bears the burden of proof.15 The circumstances evidencing fraud are as varied as the
people who perpetrate it in each case.16 It may assume different shapes and forms; it may be committed
in as many different ways.17 Thus, the law requires that it be established by clear and convincing
evidence.18

In the case before us, we find that petitioner has adduced a preponderance of evidence before the trial
court, showing manifest fraud in procuring the patent.19 This Court agrees with the RTC that in obtaining
a free patent over the lot under scrutiny, petitioner had resorted to misrepresentation or fraud, signs of
which were20 ignored by the Court of Appeals.21

First, the issuance of the free patent was not made in accordance with the procedure laid down by
Commonwealth Act No. 141, otherwise known as the Public Land Act.22 Under Section 91 thereof, an
investigation should be conducted for the purpose of ascertaining whether the material facts set out in
the application are true.23

Further, after the filing of the application, the law requires sufficient notice to the municipality and the
barrio where the land is located, in order to give adverse claimants the opportunity to present their
claims.24 Note that this notice and the verification and investigation of the parcel of land are to be
conducted after an application for free patent has been filed with the Bureau of Lands.

In this case, however, Felipe Alejaga Sr.s Application for Free Patent25 was dated and filed on December
28, 1978. On the other hand, the Investigation & Verification Report26 prepared by Land Inspector Elfren
L. Recio of the District Land Office of the Bureau of Lands of Roxas City was dated December 27, 1978. In
that Report, he stated that he had conducted the "necessary investigation and verification in the
presence of the applicant." Even if we accept this statement as gospel truth, the violation of the rule
cannot be condoned because, obviously, the required notice to adverse claimants was not served.

Evidently, the filing of the application and the verification and investigation allegedly conducted by Recio
were precipitate and beyond the pale of the Public Land Act.27 As correctly pointed out by the trial court,
investigation and verification should have been done only after the filing of the application. Hence, it
would have been highly anomalous for Recio to conduct his own investigation and verification on
December 27, 1998, a day before Felipe Alejaga Sr. filed the Application for Free Patent.28 It must also be
noted that while the Alejagas insist that an investigation was conducted, they do not dispute the fact
that it preceded the filing of the application.29

Second, the claim of the Alejagas that an actual investigation was conducted is not sustained by the
Verification & Investigation Report itself, which bears no signature.30 Their reliance on the presumption
of regularity in the performance of official duty31 is thus misplaced. Since Recios signature does not
appear on the December 27, 1978 Report, there can be no presumption that an investigation and
verification of the parcel of land was actually conducted. Strangely, respondents do not proffer any
explanation why the Verification & Investigation Report was not signed by Recio. Even more important
and as will later on be explained, this alleged presumption of regularity -- assuming it ever existed -- is
overcome by the evidence presented by petitioner.

Third, the report of Special Investigator Isagani P. Cartagena has not been successfully rebutted. In that
report, Recio supposedly admitted that he had not actually conducted an investigation and ocular
inspection of the parcel of land. Cartagenas statement on Recios alleged admission may be considered
as "independently relevant." A witness may testify as to the state of mind of another person -- the

870
latters knowledge, belief, or good or bad faith -- and the formers statements may then be regarded as
independently relevant without violating the hearsay rule.32

Thus, because Cartagena took the witness stand and opened himself to cross-examination, the
Investigation Report33 he had submitted to the director of the Bureau of Lands constitutes part of his
testimony. Those portions of the report that consisted of his personal knowledge, perceptions and
conclusions are not hearsay.34 On the other hand, the part referring to the statement made by Recio
may be considered as independently relevant.35

The doctrine on independently relevant statements holds that conversations communicated to a

witness by a third person may be admitted as proof that, regardless of their truth or falsity, they were
actually made. Evidence as to the making of such statements is not secondary but primary, for in itself it
(a) constitutes a fact in issue36 or (b) is circumstantially relevant to the existence of such fact.37

Since Cartagenas testimony was based on the report of the investigation he had conducted, his
testimony was not hearsay and was, hence, properly admitted by the trial court.38

Based on the foregoing badges of fraud, we sustain petitioners contention that the free patent granted
to Felipe Alejaga Sr. is void.39 Such fraud is a ground for impugning the validity of the Certificate of
Title.40 The invalidity of the patent is sufficient basis for nullifying the Certificate of Title issued in
consequence thereof, since the latter is merely evidence of the former.41 Verily, we must uphold
petitioners claim that the issuance of the Alejagas patent and title was tainted with fraud.42

Second Issue:

Indefeasibility of Title

Petitioner contends that the State has an imprescriptible right to cause the reversion of a piece of
property belonging to the public domain.43 On the other hand, the Alejagas claim that, pursuant to
Section 32 of PD 152944 -- otherwise known as the Property Registration Decree -- the one-year period
for reversion has already lapsed.45 Thus, the States Complaint for reversion should be dismissed.

We agree with petitioner.

True, once a patent is registered and the corresponding certificate of title issued, the land covered by
them ceases to be part of the public domain and becomes private property. Further, the Torrens Title
issued pursuant to the patent becomes indefeasible a year after the issuance of the latter.46 However,
this indefeasibility of a title does not attach to titles secured by fraud and misrepresentation.47 Well-
settled is the doctrine that the registration of a patent under the Torrens System does not by itself vest
title; it merely confirms the registrants already existing one. Verily, registration under the Torrens
System is not a mode of acquiring ownership.48

Therefore, under Section 101 of Commonwealth Act No. 141,49 the State -- even after the lapse of one
year -- may still bring an action for the reversion to the public domain of land that has been fraudulently
granted to private individuals.50 Further, this indefeasibility cannot be a bar to an investigation by the
State as to how the title has been acquired, if the purpose of the investigation is to determine whether
fraud has in fact been committed in securing the title.51

In the case before us, the indefeasibility of a certificate of title cannot be invoked by the Alejagas, whose
forebear obtained the title by means of fraud.52 Public policy demands that those who have done so
should not be allowed to benefit from their misdeed.53 Thus, prescription and laches will not bar actions
filed by the State to recover its own property acquired through fraud by private individuals.54 This is
settled law.55

Prohibition Against Alienation or Encumbrance

Assuming arguendo that the Alejagas title was validly issued, there is another basis for the cancellation
of the grant and the reversion of the land to the public domain. Section 118 of Commonwealth Act No.

871
14156 proscribes the encumbrance of a parcel of land acquired under a free patent or homestead within
five years from its grant.57 The prohibition against any alienation or encumbrance of the land grant is a
proviso attached to the approval of every application.58

Further, corporations are expressly forbidden by law to have any right or title to, or interest in, lands
that are granted under free or homestead patents; or any improvements thereon. They are forbidden
from enjoying such right, title or interest, if they have not secured the consent of the grantee and the
approval of the secretary of the Department of Agriculture and Natural Resources; and if such lands are
to be devoted to purposes other than education, charity, or easement of way.59

In the case at bar, Free Patent No. (VI-2) 335860 was approved and issued on March 14, 1979.
Corresponding Original Certificate of Title No. P-1561 was issued on the same date. On August 18, 1981,
or two (2) years after the grant of the free patent, Felipe Alejaga Sr. obtained from Respondent PNB a
loan62 in the amount of P100,000. Despite the statement on the title certificate itself that the land
granted under the free patent shall be inalienable for five (5) years from the grant, a real estate
mortgage was nonetheless constituted on the parcel of land covered by OCT No. P-15.63 In his testimony,
Gabriel D. Aranas Jr., then Cashier III of respondent bank, even admitted that the PNB was aware of such
restriction.

"COURT You testified Mr. Aranas that you inspected the title also when you credit investigated the loan
applicant Felipe Alejaga and you have personally examined this?

A Yes, your Honor.

COURT Do you conclude that this Original Certificate of Title is a [free] patent?

A Yes, your Honor.

COURT And this [free] patent was granted on March 19, 1979.

A Yes, your honor.

COURT And as such [free] patent it cannot be alienated except [to] the government or within five years
from its issuance?

A Yes, your honor.

COURT Why did you recommend the loan?

A Because it is just a mortgage."64

Thus, the mortgage executed by Respondent Felipe Alejaga Sr. falls squarely within the term
encumbrance proscribed by Section 118 of the Public Land Act.65 A mortgage constitutes a legal
limitation on the estate, and the foreclosure of the mortgage would necessarily result in the auction of
the property.66

As early as Pascua v. Talens,67 we have explained the rationale for the prohibition against the
encumbrance of a homestead -- its lease and mortgage included -- an encumbrance which, by analogy,
applies to a free patent. We ruled as follows:

"It is well-known that the homestead laws were designed to distribute disposable agricultural lots of the
State to land-destitute citizens for their home and cultivation. Pursuant to such benevolent intention the
State prohibits the sale or encumbrance of the homestead (Section 116) within five years after the grant
of the patent."

Further, an encumbrance on a parcel of land acquired through free patent constitutes sufficient ground
for the nullification of such grant, as provided under Commonwealth Act No. 141, which we quote:

872
"SEC. 124. Any acquisition, conveyance, alienation, transfer, or other contract made or executed in
violation of any of the provisions of sections one hundred and eighteen, one hundred and twenty, one
hundred and twenty-one, one hundred and twenty-two, and one hundred and twenty-three of this Act
shall be unlawful and null and void from its execution and shall produce the effect of annulling and
canceling the grant, title, patent, or permit originally issued, recognized or confirmed, actually or
presumptively, and cause the reversion of the property and its improvements to the State."

Mortgage over a parcel of land acquired through a free patent grant nullifies the award and constitutes
a cause for the reversion of the property to the state, as we held in Republic v. Court of Appeals:68

"The foregoing legal provisions clearly proscribe the encumbrance of a parcel of land acquired under a
free patent or homestead within five years from the grant of such patent. Furthermore, such
encumbrance results in the cancellation of the grant and the reversion of the land to the public
domain."69

To comply with the condition for the grant of the free patent, within five years from its issuance, Felipe
Alejaga Sr. should not have encumbered the parcel land granted to him. The mortgage he made over the
land violated that condition.70 Hence, the property must necessarily revert to the public domain,
pursuant to Section 124 of the Public Land Act.

WHEREFORE, the Petition is GRANTED and the assailed Decision SET ASIDE. The Decision of the RTC of
Roxas City (Branch 15) dated October 27, 1993 is REINSTATED. No costs.

SO ORDERED.

Sandoval-Gutierrez, Corona, and Carpio-Morales, JJ., concur.

Puno, (Chairman), J., abroad on official business.

G.R. No. 148257 March 17, 2004

PEOPLE OF THE PHILIPPINES, appellee,

vs.
CESARIO MONTAÑEZ and DANIEL SUMAYLO, accused.
CESARIO MONTAÑEZ, appellant.

DECISION

CALLEJO, SR., J.:

This case was certified to this Court by the Court of Appeals under Section 14, Rule 124 of
the Rules of Court, as amended. The Court of Appeals affirmed the Decision1 of the trial court dated
September 19, 1995 convicting the appellant of murder, as principal by direct participation, and set
aside the Order of the trial court dated November 17, 1995 modifying its decision and convicting the
appellant of murder, but only as accomplice.

The Proceedings in the Trial Court

On August 11, 1993, an Information was filed in the Regional Trial Court of Tangub City
charging the appellant of murder. The accusatory portion of the Information reads:

873
 That on or about the 20th day of July, 1993, at 12:00 midnight, more or less, in Barangay
Pangabuan, Tangub City, Philippines, and within the jurisdiction of this Honorable Court, the above
named accused, with treachery and evident premeditation, and with intent to kill, did then and there,
willfully, unlawfully and feloniously shot one Perlito Ollanes resulting in the instantaneous death of the
victim.

CONTRARY TO LAW with the qualifying circumstances of treachery and evident

premeditation.2

The appellant was arraigned, assisted by counsel, and entered a plea of not guilty. The prosecution then
adduced testimonial and documentary evidence and rested its case. The appellant also rested his case
after adducing his evidence. The prosecution then adduced rebuttal evidence and presented Daniel
Sumaylo as surrebuttal witness. Sumaylo declared that the appellant did not kill the victim, but also
stated that he did not know the killer. The appellant, thereafter, closed the presentation of his evidence.

Before the court could render judgment, Daniel Sumaylo gave a statement on May 14, 1994 to SPO3
Julius Rosales admitting to having shot the victim. His mother, Lucia Sumaylo, executed a separate
affidavit corroborating that of her son. The appellant then filed a motion to re-open the trial to enable
him to present Daniel Sumaylo. Sumaylo testified that he executed his statement with full knowledge of
its contents and that he was not coerced and intimidated into making it. The court granted the
appellant’s motion and allowed him to present Sumaylo as his witness.

An Amended Information was filed on July 27, 1994 considering Daniel Sumaylo as an additional accused.
The accusatory portion of the Amended Information reads as follows:

That on or about the 20th day of July 1993, at 12:00 midnight, more or less, in Barangay Pangabuan,
Tangub City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and helping one another, with treachery and evident premeditation, and with intent to kill,
did then and there, willfully, unlawfully and feloniously shot one Perlito Ollanes resulting in the
instantaneous death of the victim.

CONTRARY TO LAW with the qualifying circumstance of treachery and evident premeditation.3

On April 7, 1995, Sumaylo was arraigned, assisted by counsel, and with conformity of the victim’s father
and the public prosecutor, entered a plea of guilty to the lesser crime of homicide.

Evidence for the Prosecution

Edmundo Ollanes testified that in the evening of July 20, 1993, he was fishing along the seashore at
Pangabuan, Toledo City with Joven Hintogaya and his younger brother, Perlito Ollanes. They stopped
fishing by 11:00 a.m., sold their catch, and went home. Edmundo took a shortcut, while Joven and
Perlito walked home together. He and Perlito had a flashlight with them, while Joven carried a kerosene
lamp. Perlito’s house was only about forty meters from his, and Joven lived only about eighteen meters
away.

As Edmundo was climbing the stairs to his house, he heard gunshot coming from the direction of the
house of Perlito. He rushed to the scene and passed by Joven’s house. He then saw his brother lying
prostrate nearby. As he was facing towards the ground, the left side of his face tilted towards his left
shoulder, he saw the appellant, who was armed with a long firearm.

Edmundo carried his brother in his arms and noticed the gunshot wounds on the latter’s chest. He was
still alive, but barely breathing. Perlito told him that he was on the verge of death. When Edmundo
asked Perlito who shot him, the latter declared that it was the appellant. Perlito mentioned the
appellant’s name three times. Edmundo carried Perlito to the hospital, but the latter died on the way.

Joven Hintogaya corroborated Edmundo’s testimony. He testified that Perlito was his brother-in-law. He
was carrying a kerosene lamp as he and Perlito were on their way home that fateful night. Perlito was
about seven meters away from him. Suddenly, he heard a gunshot and saw that Perlito was hit. He fell

874
to the ground. Joven went near Perlito, still carrying the kerosene lamp, and saw the appellant holding a
long handgun in his right hand. In the meantime, the appellant went near Perlito and dropped a piece of
paper with writings in the Cebuano dialect,4 then left. Momentarily, Edmundo arrived, carried Perlito
and talked to him. Dadan Ollanes and Cresing also arrived and helped Edmundo bring Perlito to the
hospital. Perlito died on the way.

Dr. Paulita Almendras performed an autopsy on the cadaver of Perlito and prepared her report
containing her postmortem findings, thus:

Front view

Multiple gunshot wounds chest, abdominal region, pubic region approximately numbering 25 with
different sizes of wounds of entrance some ½ cm. in diameter and some ¼ cm. in diameter.

Back view

Gunshot wounds of exit back, left side level of umbilicus – 8 cms. from the spinal column & another one
5 cms. from the spinal column.5

The doctor also signed the Certificate of Death of Perlito Ollanes.6

The Case for the Appellant

Emilia Antipolo testified that at around 8:00 p.m. on July 20, 1993, she was in her house in Baybay,
Pangabuan, waiting for the fishermen to arrive. The appellant, Elizabeth Robillos and the latter’s
husband were her regular customers and were with her that night. When the fishermen arrived at 11:00
p.m., Emilia weighed the fish and sorted them with the help of Elizabeth and the appellant. They
finished the work at 2:00 a.m.

Emilia and her companions heard gunfire coming from the upper portion of Pangabuan. Not long after,
three CAFGUs arrived and asked Emilia if they heard the fire of the gun. She answered in the affirmative.
The following day, they learned that somebody had been killed at the upper portion of Pangabuan
where the victim lived.

Danilo Ollanes testified that at midnight of July 20, 1993, he was at home. He heard gunfire and rushed
to the place with his brother Edmundo. He brought a small petroleum lamp with him. They saw
somebody lying on the ground, face down. Edmundo lifted the fallen Perlito, and Danilo heard him say
that the person who shot him was Alfredo Ollanes. He did not see Cesario Montañez during the incident.
On cross examination, Danilo testified that he arrived at the place and he heard gunfire a minute later.
He did not see the appellant nor Alfredo Ollanes. According to his brother, the appellant was implicated
in the killing of Perlito because the former was involved in the plan.

Elizabeth, whom Emilia Antipolo alleged to be with the appellant at her house in the evening of July 20,
1993, testified that she was also there with the appellant, CAFGUs Camilo Alipaopao, Boy Aranilla and
Eustaquio Abadia. She also heard the gunfire along with the others. She left the house of Antipolo with
the appellant at 2:00 a.m. Elizabeth also testified that she knew the victim, a resident of Pangabuan who
sometimes bought fish on the road.

Barangay Captain Rudy Matalines of Pangabuan, Tangub City, testified that the father of the victim went
to him for help when his son was killed. Rudy Matalines went to the place of the incident and asked
Edmundo whether he knew the culprit, and the latter answered in the negative. Danilo went to his
house to have his affidavit taken, where he stated that the person responsible for the killing was Alfredo
Ollanes. The affidavit was not sworn to and the barangay captain gave a copy to the appellant.

Eutiquio Amodia corroborated the testimonies of witnesses Emilia Antipolo and Elizabeth Robillos that
the appellant was at the house of Emilio Antipolo at the time when they heard the gunfire in the
evening of July 20, 1993. When he left at about 1:00 a.m., the appellant and Elizabeth were still there.

875
The appellant denied the allegations of Joven and Edmundo, reasoning that at the time of the incident,
he was in the house of Emilia Antipolo in Baybay Pangabuan, Tangub City, about one-and-a-half
kilometers away from the victim’s house. He testified that he arrived at the house of Emilia at 8:00 p.m.
to meet the fishermen and buy their catch. At 12:00 midnight, while he was still in the house, he heard
gunfire coming from the upper portion of Pangabuan. He denied having known that the victim had
impregnated Maricia Ollanes.

Daniel Sumaylo testified that Alfredo Ollanes ordered the killing of the victim and gave P100.00 for the
assignment. He conspired with Alfredo Ollanes, Federico Ollanes, Roque Ollanes, Larry Ollanes and
Rogelio Aman, Jr. to kill the victim, because the latter impregnated his cousin, Maricia Ollanes. It was
Roque Ollanes who dropped the note near the victim. Sumaylo stated that he used an unlicensed
firearm owned by Rogelio Aman, Jr. in the shooting. After the killing, he returned the gun to Aman, Jr.
The appellant was implicated because he had the same body built as Roque Ollanes. Sumaylo gave his
sworn statement to SPO3 Ramon Daomilas, Jr. in the presence of Erdie Quinto, a minister of the Iglesia
ni Kristo.

After trial, the court rendered judgment on September 19, 1995, convicting the appellant of murder as
principal and convicting Sumaylo of homicide. The decretal portion of the said decision reads:

WHEREFORE, premises considered, this Court finds accused Cesario Montañez guilty beyond reasonable
doubt for the crime of Murder, defined and penalized under Art. 248 of the Revised Penal Code and
there being no aggravating nor mitigating circumstance, said accused Cesario Montañez is hereby
sentenced to a penalty of Reclusion Perpetua while accused Daniel Sumaylo is hereby found guilty
beyond reasonable doubt for the crime of Homicide defined and penalized under Art. 249 of the Revised
Penal Code, and there being no aggravating nor mitigating circumstance, said accused Daniel Sumaylo is
hereby sentenced to an indeterminate penalty ranging from 8 years and 1 day of prision mayor as its
minimum period to 14 years, 8 months and 1 day of reclusion temporal as its maximum period.

Both accused Cesario Montañez and Daniel Sumaylo are to suffer the accessory penalties provided by
law, to solidarily and jointly indemnify the heirs of the victim the sum of P50,000.00, and to pay the
costs.

They must be credited of the time according to law of the time they were under preventive
imprisonment.7

The appellant filed a motion for the reconsideration of the decision. On November 17, 1995, the court
issued an order partially granting the motion and convicting the appellant of murder, but only as an
accomplice. The decretal portion of the decision reads:

WHEREFORE, premises duly considered, the decision dated September 19, 1995 is hereby reconsidered
and modified in the sense that accused Cesario Montañez is found guilty beyond reasonable doubt as an
accomplice of the crime of Murder defined and penalized under Art. 248 in relation to Art. 52 of the
Revised Penal Code and he is sentenced to suffer an indeterminate penalty ranging from 8 years and 1
day of prision mayor as its minimum to 14 years, 8 months and 1 day of reclusion temporal as its
maximum period. All the other aspects of the penalty are hereby sustained.

SO ORDERED.8

The appellant appealed the decision, asserting that there was no proof of conspiracy between him and
Sumaylo; as such, he should be exonerated of the crime charged. Furthermore, he could not be held
criminally liable as an accomplice because there was no direct connection between his presence at the
scene of the crime and the killing of the victim.

On June 30, 1999, the Court of Appeals rendered judgment reversing the November 17, 1995 Order of
the trial court and reinstating the trial court’s September 19, 1995 Decision.

876
Neither the appellant nor the Office of the Solicitor General filed their respective supplemental briefs.
The appellant manifested that he was adopting his brief in the Court of Appeals in the instant appeal,
where he asserted that:

THE LOWER COURT ERRED IN FINDING ACCUSED-APPELLANT CESARIO MONTAÑEZ GUILTY BEYOND
REASONABLE DOUBT AS AN ACCOMPLICE OF THE CRIME OF MURDER.9

The appellant contends that both the trial court and the appellate court erred in giving credence and full
probative weight to the testimonies of Edmundo and Joven. He insists that he was in the house of Emilia
Antipolo, one-and-a-half kilometers away from the house of the victim, when the latter was shot.
Besides, Sumaylo already confessed to being the sole assailant, and thereby absolved him of any
criminal liability for the victim’s death. The appellant argues that it was illogical for the trial court to
convict him of murder as an accomplice, although Sumaylo, who was the principal by direct participation
for the killing of the victim, was convicted of homicide. There is no evidence on record that he conspired
with Sumaylo in killing the victim. His mere presence at the scene of the killing did not render him
criminally liable as an accomplice.

The appellant’s submission has no merit.

We agree with the ratiocinations of the Court of Appeals in affirming the September 19, 1995 Decision
of the trial court convicting the appellant of murder as principal by direct participation, thus:

CESARIO contends that "[S]ince neither conspiracy nor unity of purpose and intention in the commission
of the crime charged on the accused-appellant was proven x x x [T]he accused-appellant, therefore,
deserves a verdict of acquittal."

The contention is without basis. The fact that CESARIO was at the scene of the crime is established by
JOVEN’s positive identification of him. Corollarily, the issue to be resolved is the degree of his
participation in the killing of JOVEN.

A reading of the prosecution’s evidence shows that CESARIO is a principal by direct participation in the
killing of PERLITO.

...

The incriminating circumstantial evidence that point to CESARIO as the perpetrator of the crime are the
following:

1) After a shot was heard, JOVEN saw PERLITO fall to the ground and thereafter, JOVEN saw CESARIO
approached PERLITO, drop a piece of paper beside him and leave immediately;

- (2) At that time, CESARIO was seen carrying a firearm in his right arm; and
- (3) A few moments later, EDMUNDO arrived and found out that PERLITO sustained a gunshot
wound in his chest. Upon inquiry, PERLITO answered, three (3) times, that it was CESARIO who shot him.
JOVEN saw them conversing but he could not hear what they were talking about.
- Since the prosecution witnesses had no motive whatsoever to falsify the truth and impute to
CESARIO the commission of so grave an offense, the foregoing circumstances cannot be seriously
disputed.
- The combination of the foregoing circumstances is sufficient to establish the guilt of CESARIO
beyond reasonable doubt.
- In relation hereto, DANIEL’s testimony is given scant attention by this Court – "The Court has
held in a number of cases that a recantation of a testimony is exceedingly unreliable, for there is always
the probability that such recantation may later on be itself repudiated. Courts look with disfavor upon
retractions, because they can easily be obtained from witnesses through intimidation or for monetary
consideration.
- Crime committed

877
- CESARIO assails the logic of the trial court’s ruling on the ground that "[T]he principal by direct
participation was convicted of the lesser offense of homicide while his accomplice in the commission of
the crime, herein accused-appellant, was convicted of the more serious crime of murder."
- Murder has been defined as "the unlawful killing of any person which is not parricide or
infanticide, provided that any of the following circumstances is present: (a) With treachery x x x"
- The circumstance of treachery is attendant in the case at bar. "The killing of the deceased is
murder for the victim was not only unarmed but also deprived of every means to defend himself from
the treacherous attack. As testified by Joven Hintogaya, the victim Perlito Ollanes was on the process of
placing his push net above the door and when he turned his side, he was shot.
- Considering that treachery is present in the killing of PERLITO, the nature of the crime
committed is categorized as murder. The crime, as charged, remains notwithstanding DANIEL’S plea of
guilty to a lesser offense. That is, "where the accused is allowed to plead guilty to a lesser offense,
regardless of whether the same is or is not necessarily included in the crime charged, no amendment of
the complaint or information is necessary." This is so because "[A] conviction under this plea shall be
equivalent to a conviction of the offense charged for purposes of double jeopardy." As stated by the
Solicitor General, "[I]t appears that in the eyes of the law, the convicted felone (sic) is still convicted of
the crime charged although he was benefited by his entering a plea of guilty to the lesser offense."10
- The conviction of the accused may be proved by the prosecution either by direct evidence or by
circumstantial evidence. As we held in People vs. Delim:11
- … Circumstantial evidence consists of proof of collateral facts and circumstances from which the
existence of the main fact may be inferred according to reason and common experience. What was once
a rule of account respectability is now entombed in Section 4, Rule 133 of the Revised Rules of Evidence
which states that circumstantial evidence, sometimes referred to as indirect or presumptive evidence, is
sufficient as anchor for a judgment of conviction if the following requisites concur:
- " x x x if (a) there is more than one circumstance; (b) the facts from which the inferences are
derived have been established; and (c) the combination of all the circumstances is such as to warrant a
finding of guilt beyond reasonable doubt.
- The prosecution is burdened to prove the essential events which constitute a compact mass of
circumstantial evidence, and the proof of each being confirmed by the proof of the other, and all
without exception leading by mutual support to but one conclusion: the guilt of accused for the offense
charged. For circumstantial evidence to be sufficient to support a conviction, all the circumstances must
be consistent with each other, consistent with the hypothesis that the accused is guilty and at the same
time inconsistent with the hypothesis that he is innocent, and with every other rational hypothesis
except that of guilt. If the prosecution adduced the requisite circumstantial evidence to prove the guilt
of the accused beyond reasonable doubt, the burden of evidence shifts to the accused to controvert the
evidence of the prosecution.12
- In this case, the prosecution failed to adduce direct evidence to prove that the appellant killed
the victim. However, the prosecution adduced sufficient circumstantial evidence to prove that the
culprit was the appellant, and no other.
- First. Immediately after Joven and Edmundo heard the gunshot coming from the direction of
Perlito’s house, they rushed to the place and saw Perlito sprawled on the ground, mortally wounded.
- Second. The only person near Perlito was the appellant, who was holding a long firearm in his
right hand. No other person was near the victim or within the periphery of the crime scene when
Edmundo and Joven arrived.
- Third. The appellant went near Perlito and dropped an unsigned note written in the Cebuano
dialect purporting to be from the BHB. The appellant then immediately left the scene.
- Q When you reached, Perlito was already lying face down.
- Were you bringing (sic) your flashlight?
- A I was bringing (sic) a flashlight because I was not able to go upstairs.
- Q What did you see beside the body of Perlito?
- A A letter.
- Q What was written in that letter?
- A There was a treat (sic) that they will kill two more others come (sic) from HB (sic).
- Q Where is that letter now?
- A It is in the possession of the city fiscal.
- COURT:
- Show it to the witness, Fiscal.

878
- Q Will you examine carefully this letter brought out by Fiscal Inting and tell the Honorable
Court that is this (sic) letter. Is this the one?
- A This is the one.
- FISCAL INTING:
- Few questions, Your Honor.
- COURT:
- Proceed.
- FISCAL INTING:
- Q How far from the body of Perlito Ollanes did you find this letter?
- A Very near beside him.13
- Translated in English, the note reads:
- This man is not worth raising (sic), he is a garbage of society. This kind of man is not worth to
live; do not follow him (sic) because we oppose these works (sic). In this place there are two whom we
will eliminate.14
- The contents of the note is self-explanatory. Its sender had the victim killed by the appellant
because of the belief that the victim was not a good member of society; hence, not fit to live.
- Fourth. When Edmundo Ollanes asked his brother Perlito who shot him, Perlito replied three
times that it was the appellant. Perlito himself told his brother Edmundo that he was about to die. In
fact, the victim died on the way to the hospital.
- Q Then what did you do after hearing the gun explosion coming from the direction of the
house of Perlito Ollanes?
- A I ran towards their house.
- Q And what did you observe when you arrived or when you were near the house of Perlito
Ollanes?
- A I saw Perlito Ollanes lying with face downward.
- Q What did you find on his body, if any?
- A He was hit with the gun fire (sic).
- Q How did you know that he was hit by the gunfire (sic)?
- A I placed him in my arms.
- Q How did you know that he was injured?
- A I carried him in my arms because he was still alive.
- Q Where did you find the injuries?
- A On his breast. (Witness pointing from his breast to his stomach).
- Q You said that when you placed Perlito Ollanes in your arms he was still alive, what did you
say, if any, to him?
- FISCAL INTING:
- Q (refer last).
- A I asked him whether he recognized the one who shot him.
- Q And what did he answer, if any?
- A He answered 3 times that it was Cesar Montañez.
- COURT:
- Q Did your brother know that he was going to die because of that gunshot wound?
- A Maybe he knew that he was about to die because he told me that he would die.
- Q That was the time when you asked him who was responsible in shooting him?
- A Yes.
- Q And he answered you 3 times the name of Cesar Montañez?
- A Yes.
- COURT:
- Proceed.
- FISCAL INTING:
- Q How serious was the physical condition of Perlito Ollanes when you asked him and he
answered you?
- A He was uneasy.
- COURT:
- Q After answering you the name of Cesar Montañez, what happened to your brother,
Perlito?
- A We carried him and brought him downward in order to bring him to the hospital.
- Q He was still alive?

879
- A Yes.
- Q Until what point did you bring him downward?
- A He died on the way.15
- Perlito’s statement that it was the appellant who shot him was a dying declaration. The
statement is highly reliable, having been made in extremity when the declarant is at the point of death
and when any hope of survival is gone, when every motive to falsehood is silenced, and when the mind
is induced by the most powerful considerations to speak the truth.16 Even if the declarant did not make a
statement that he was at the brink of death, the degree and seriousness of the words and the fact that
death superseded shortly afterwards may be considered as substantial evidence that the declaration
was made by the victim with full realization that he was in a dying condition.17
- The barefaced fact that Daniel Sumaylo pleaded guilty to the felony of homicide is not a bar to
the appellant being found guilty of murder as a principal. It bears stressing that Sumaylo plea-bargained
on his re-arraignment. Even if the public prosecutor and the father of the victim agreed to Sumaylo’s
plea, the State is not barred from prosecuting the appellant for murder on the basis of its evidence,
independently of Sumaylo’s plea of guilt.
- Neither is the appellant entitled to acquittal merely because Sumaylo confessed, after the
appellant had rested his case, to being the sole assailant. The trial court disbelieved Sumaylo’s testimony
that he alone killed the victim and that the appellant was not at all involved in the killing. The Court of
Appeals affirmed the judgment of the trial court. It bears stressing that when Sumaylo testified for the
appellant on surrebuttal, he declared that he did not know who killed the victim. He even declared that
the appellant did not kill the victim. However, he made a complete volte-face when he executed an
affidavit and testified that he alone killed the victim and that the appellant was not at all involved in the
killing. We are convinced that Sumaylo’s somersault was an afterthought, a last-ditch attempt to
extricate the appellant from an inevitable conviction. We agree with the ratiocinations of the trial court,
thus:
- There is great doubt to the mind of the Court on the testimonies of accused Daniel Sumaylo. He
was presented as surrebuttal witness to deny the allegation of the prosecution regarding the presence
of the accused Cesario Montañez in the house of Federico Ollanes on July 20, 1993. If it was true that he,
Daniel Sumaylo, was there, enabling him to tell whether accused Cesario Montañez was present or not,
why was he not able to give the date and time of said marriage arrangement? He did not know the
future groom and the future parents-in-law of the daughter of Federico Ollanes. He could have, at least
remembered any of the important matters about such marriage arrangement if indeed he was there.
- Accused Daniel Sumaylo’s affidavit was executed on May 14, 1994, a day after he was presented
as surrebuttal witness wherein he testified that he does not know who killed the victim. He retracted
such testimony given in Court for the reason that he was disturbed by his conscience. However, the
Court has looked with disfavor upon retraction of testimonies previously given in Court. Recanted
testimony is exceedingly unreliable (People vs. Clamor, G.R. No. 82708, July 1, 1991, 198 SCRA 642). …18
- The strategem of the appellant was evident. Sumaylo was to confess to having killed the victim,
and at the same time, absolve the appellant from any involvement in the crime. Sumaylo would then
plead guilty to the lesser felony of homicide and would be sentenced to an indeterminate penalty. He
expected to be free, after serving the minimum of his sentence. If the trial court believed Sumaylo’s
recantation, the appellant would be acquitted of the crime charged and, as a consequence, would be set
free. Unfortunately for the appellant, although the trial court allowed Sumaylo to plead guilty to
homicide and sentenced him to an indeterminate penalty, it disbelieved the latter’s testimony
exculpating the appellant.
- The appellant’s strategy backfired. Instead of being content with his conviction of murder as an
accomplice, he appealed to the Court of Appeals, which found him guilty of murder as a principal by
direct participation.
- On the civil liabilities of the appellant, the trial court did not award exemplary damages,
contrary to current jurisprudence.19 The decision of the trial court shall, thus, be modified.
- IN LIGHT OF ALL THE FOREGOING, the appeal is DISMISSED. The Decision of the Court of
Appeals, which affirmed the decision of the Regional Trial Court of Tangub City, Branch 16, dated
September 19,1995 convicting the appellant as principal, is AFFIRMED with MODIFICATION. The
appellant Cesario Montañez is hereby directed to pay to the heirs of the victim Perlito Ollanes the
amount of P25,000.00 as exemplary damages.
- SO ORDERED.
- Quisumbing, (Acting Chairman), Austria-Martinez, and Tinga, JJ., concur.
Puno, (Chairman) on leave.

880
- G.R. No. 122934 January 5, 2001
- PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANGEL PRECIADOS (At Large), ARTURO ENAD, EMIGDIO VILLAMOR, LEONCIO ALGABRE and FLORIANO
ALGABRE @ "LOLOY", Accused, ARTURO ENAD, accused-appellant.
- QUISUMBING, J.:
- Accused-appellant Arturo Enad1 assails the decision rendered by the Regional Trial Court of
Tagbilaran City, Branch 1, in two consolidated cases, Criminal Case No. 7887 for murder and Criminal
Case No. 7888 for frustrated murder. It convicted and sentenced him to reclusion perpetua in the first
case and to a prison terms of six (6) years and one (1) day of prision mayor, as minimum to twelve (12)
years and one (1) day of reclusion temporal, as maximum, in the second case.1âwphi1.nêt
- In Criminal Case No. 7887, the Office of the Provincial Prosecutor of Bohol charged Angel
Preciados, Arturo Enad, Emigdio Villamor, Leoncio Algabre, and Floriano Algabre alias "Loloy" with
murder allegedly committed as follows:
- The on or about the 12th to the 13th day of May 1992, in the municipality of Sagbayan, province
of Bohol, Philippines and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with (sic) one another, with intent to kill and without
justifiable cause, did then and there, willfully, unlawfully, and feloniously pour poison into the mouth of
one Primo Hilbero whereby causing the victim's untimely death; to the damage and prejudice of the
heirs of the deceased in the amount to be proved during the trial.
- Acts committed contrary to the provisions of Article 248 of the Revised Penal Code, as amended,
with the aggravating circumstances of (1) treachery, the victim being unaware and unsuspecting and (2)
abuse of superior strength, two of the accused being armed with deadly weapons which they used in
intimidating, threatening and forcing the victim to drink the poison.2
- In Criminal Case No. 7888, the same persons were charged with frustrated murder. The charge
sheet reads:
- That on or about the 12th to the 13th day of May, 1992, in the municipality of Sagbayan, province
of Bohol, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring, confederating and mutually helping with (sic) one another, with intent to kill and without
justifiable cause, did then and there willfully, unlawfully and feloniously pour poison into the mouth of
one Antonio Hilbero thereby inflicting serious injuries on the victim's body; thus, the accused having
performed in said manner all the acts of execution which would have produced the crime of Murder as a
consequence, but which nevertheless did not produce it by reason of a cause independent of their will,
that is, by the timely medical attendance and treatment rendered the damage and prejudice of the said
offended party in the amount to be proved during the trial (sic).
- Acts committed contrary to the provisions of Article 248 in relation to Articles 6 and 50 of the
Revised Penal Code, as amended, with the aggravating circumstances of (1) treachery, the victim being
unaware and unsuspecting and (2) abuse of superior of strength two of the accused being armed with
deadly weapon which they to used in intimidating, threatening and forcing the victim to drink the
poison.3
- The informations were both dated July 20, 1992 but the cases were tried before different salas.
Branch 4 of the Regional Trial Court of Tagbilaran City, tried Criminal Case No. 7887, while Branch 3 tried
Criminal Case No. 7888.
- On August 26, 1992, the accused in Criminal Case No. 7888 were ordered arrested. But the
police failed to apprehend any of the accused. Preciados and the Algebres were reported to have gone
into hiding in Mindanao, while Enad and Villamor went to Cebu City. It was only on July 20, 1993, when
appellant Arturo Enad was arrested. Arraigned in Criminal Case No. 7887, he pleaded not guilty. He
waived pre-trial and the case was set for trial.
- On September 13, 1993, Judge Achilles L. Melicor of Branch 4, RTC of Tagbilaran City, inhibited
himself from Criminal Case No. 7887, since the accused were the political leaders of Mayor Arthur
Melicor-Añana, his cousin, while the victims were supporters of the mayor's political rival, Narzal B.
Ermac.
- On February 14, 1994, Criminal Case No. 7888 was revived and jointly tried with Criminal Case
No. 7887 in Branch 1, RTC of Tagbilaran City. Arraigned in Criminal Case No. 7888 on February 15, 1994,
appellant entered a plea of not guilty. Thereafter, Criminal Cases Nos. 7887 and 7888 were jointly tried,
without prejudice to the separate arraignment and trial of the other accused who continued to evade
arrest.
- The facts of the case, culled from the prosecution's presentation, are as follows:

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- Appellant and Antonio Hilbero,4 the victim in Criminal Case No. 7888, are second cousins. Both
are residents of Ubujan, Sagbayan, Bohol. Appellant is also a cousin of Primo Hilbero's mother-in-law.
Primo Hilbero is the victim in Criminal Case No. 7887.
- During the May 11, 1992 elections, appellant and Antonio supported rival mayoralty candidates
of Sagbayan. Appellant was a supporter and poll watcher of Arthur Añana, while Antonio, a barangay
councilman of Ubujan, was a partisan of Narzal Ermac. Appellant's co-accused were also identified with
Añana who won.
- At around 11:00 p.m. of May 12, 1992, Antonio with his common law wife and their two
children, his brother, Primo and his wife, Helen with their three children, Antonio's mother, Dominga,
and another brother, Severino were at the second floor of the old rice mill at Ubujan. Except for Helen,
the clan had retired for the night. She was about to go to sleep when she noticed Antonio go downstairs.
Minutes later, her husband Primo, followed him. Then she heard someone utter, "Don't move." Alarmed,
she rose from her mat and peeped through a two-inch hole in the floor.5 The ground floor was
illuminated by moonlight. She saw appellant holding a hand grenade while his other arm was locked in a
stranglehold around the neck of Antonio who knelt on the floor.6 Nearby stood Angel Preciados with a
gun pointed at Antonio.7 She then heard Emigdio Villamor say "Don't move so that your family will not
die." She saw the latter forcing Primo to shallow an object.8 The other accused held her husband to
prevent him from struggling. Shocked, Helen then soundlessly cried and embraced her children. Shortly
afterwards, Helen's mother-in-law, Dominga, was awakened by the barking of the family dog. Dominga
went downstairs where she saw Primo lifeless on the floor, reeking of poison.9 Antonio was nowhere to
be found. Dominga rushed upstairs and woke up Severino, all the while shouting for help. Minutes later,
the barangay captain and some neighbors responded to her shouts for assistance. They found Primo
dead on the floor. Informed that Antonio was missing, they searched the immediate surroundings for
him but to no avail.10
- Early in the morning of May 13, 1992, the search for Antonio was resumed. He was finally found
by his uncle, Simeon Degamo, holding on to rock in a natural well, some 300 meters away from the rice
mill. A rope was thrown to him and he was pulled out from the well. Noticing that he smelled of some
poisonous chemical, his rescuers made him drink coconut milk.11 He was weak and appeared on the
verge of death and brought to the hospital at Clarin, Bohol for emergency treatment.
- The next day, prosecution witness Zosimo Viva,12 a defeated municipal councilor candidate in
the same slate of Ermac, Antonio's common law wife, and two police investigators transferred Antonio
to the Gov. Celestino Gallares Memorial Hospital in Tagbilaran City.13 According to prosecution witness
Dr. Mayda14 Reyes who admitted Antonio to the hospital, Antonio told her that the latter was forced to
drink a certain liquid, which smelled like insecticide.15 Another physician, Dr. Maria Luisa Tage, who
attended to Antonio diagnosed, "Poisoning, Etiology not determined, Brief reactive psychosis."16
- Since Antonio appeared to be dying, prosecution witness PO3 Leonardo Inoc, a police
investigator, took his "ante-mortem" statement17 in which he named the aforementioned accused as the
persons responsible for poisoning him and dropping him in the well.18
- Meanwhile, Ermac asked the National Bureau of Investigation (NBI) to conduct an
investigation.19 The toxicological examination of Primo's body revealed the presence of methamidophos,
the active ingredient of the insecticide "Tamaron" in Primo's organs.20 The NBI also recovered two
empty bottles, at the scene of the incident. Chemistry tests on them revealed that the "Hoechst" bottle
was positive for deltamethrine, an insecticide, while the other bottle revealed traces
of methamidophos.21
- Appellant denied any involvement in the poisoning incident. He claimed an alibi. He said he
spent the whole night of May 11, 1992, in the municipal hall of Sagbayan, as a watcher for the party of
Mayor Añana. He went home early morning of May 12, 1992 and spent the whole day repairing his
pigpens even if he had not slept the previous night. At around seven o'clock P.M. his wife and he went
to the house of his co-accused Angel Preciados to attend the birthday party of the latter's
son.22 Afterwards, they returned home and went to sleep.23 He woke up at around 9:00 A.M. and
learned about the incident. He went to the old rice mill to find out more about the poisoning incident
and saw the Hilberos. When he asked Helen what happened, she said she knew nothing about the death
of her husband.24 Later that day, he returned to Cebu City where he worked as a crane operator. He
could not think of any reason why he would be suspected for committing a crime, as he was on good
terms with the victims.25
- The defense offered a different version of the poisoning incident. According to the defense,
Antonio and Primo agreed to commit suicide by taking poison.26 It presented Antonio's affidavit dated
February 28, 1994,27 where he recanted his story in his affidavit of May 22, 1992.28 Antonio testified that

882
he and Primo decided to commit suicide by drinking poison to prevent defeated candidates Ermac and
Viva from harming their families. Antonio refused to follow the orders of Viva to kill the political leaders
of Mayor Añana, including the appellant. Thus, Antonio said, he and Primo feared for the lives of their
relatives. After Primo and he drank poison, Primo immediately died. When he did not succumb right
away, Antonio wrote a suicide note and tried to drown himself in the well.29 After his rescue, Ermac and
Viva took him into custody and bought him to Mindanao, allegedly for his safety.30 The two, however,
threatened to kill him and made him falsely charge the appellant with murder and frustrated
murder.31 Antonio totally repudiated his "ante-mortem" statement and his earlier affidavit charging the
accused with murder and frustrated murder.
- Testifying for the defense, P/Col. Benjamin Absalon, of the Bohol Provincial Command of the
Philippine National Police, testified that the police investigation revealed that Primo's death by poison
was not due to foul play. He declared that they did not finish their investigation because Antonio
disappeared from the hospital before they could interview him.32
- To rebut Antonio's testimony, Dr. Mayda Reyes was called anew to confirm what Antonio had
told her, that he was forced to drink poison by several men.33 SPO1 Leonardo Inoc testified again that he
took Antonio's "ante-mortem" statement.34 Apolinario Libranza, barangay captain of Ubujan, Sagbayan
was presented to refute Antonio's claims regarding Zosimo Viva.35 Antonio's mother, Dominga, testified
that her son was not afraid of either Viva or Ermac36 and affirmed the truthfulness of Helen's
testimony.37
- In sur-rebuttal, Antonio maintained the veracity of his suicide account.
- Finding the prosecution's version more credible, the trial court on January 2, 1995, convicted
appellant of the crimes charged in Criminal Cases Nos. 7887 and 7888. It concluded:
- PREMISES CONSIDERED, in Criminal Case No. 7887 the Court finds the accused Arturo Enad
GUILTY of the crime of Murder punished under Article 248 of the Revised Penal Code and hereby
sentences him to suffer an imprisonment of RECLUSION PERPETUA with the accessories of the law and
to pay the costs.
- The accused Arturo Enad is further ordered to indemnify the surviving spouse of the deceased
Primo Hilbiro (sic) in the amount of P50,000.00 representing indemnity and P50,000.00 representing
moral and exemplary damages. In both instances without subsidiary imprisonment in case of insolvency.
- In Criminal Case No. 7888, the Court finds the accused Arturo Enad GUILTY of the crime of
Frustrated Murder under Article 248 in relation with (sic) Articles 6 and 50 of the Revised Penal Code, as
amended and hereby sentences him to suffer an Indeterminate Sentence from SIX (6) YEARS and ONE
(1) DAY, the Minimum of the Minimum Period of Prision Mayor, as Minimum, to TWELVE (12) YEARS and
ONE (1) DAY, the Minimum of the Minimum Period of Reclusion Temporal, as Maximum, with the
accessories of the law and to pay the cost.
- The Court makes no pronouncement as to indemnity and damages for the Court viewed the
retraction of the complainant Antonio Hilbiro (sic) of his previous testimony, as a waiver of indemnity.
- It appearing that the accused Arturo Enad has undergone preventive imprisonment in Criminal
Cases Nos. 7887 and 7888 he is entitled to the full time of his preventive imprisonment to be deducted
from his term of sentences (sic) if he has executed a waiver.
- SO ORDERED.38
- On July 25, 1995, appellant filed his notice of appeal to this Court. On November 20, 1996, the
Office of Legal Aid of the U.P. College of Law entered its appearance as counsel.
- Before us, appellant poses the following questions for resolution:
- 1. WHETHER OR NOT THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE
CONTRADICTORY AND IMPROBABLE TESTIMONIES OF THE WITNESSES OF THE PROSECUTION.
- 2. WHETHER OR NOT THE TRIAL COURT ERRED IN ADMITTING AND GIVING WEIGHT TO THE
DOCUMENTARY EVIDENCE PRESENTED BY THE PROSECUTION.
- 3. WHETHER OR NOT THE TRIAL COURT ERRED IN NOT HOLDING THAT THE PROSECUTION
FAILED TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT AND IN DISMISSING THE
DEFNESE OF HE ACCUSED.
- In sum, appellant raises the following issues: First, Did the trial court err in giving credence to
the testimony of alleged eyewitness Helen Hilbero? Second, Did the lower court err in relying on "dying
statement" of Antonio Hilbero? Third, Did the prosecution evidence successfully overcome the
presumption of innocence in favor of the accused?
- The first issue deals with the credibility of prosecution witness Helen Hilbero. Appellant argues
that the testimony of the sole prosecution eyewitness, Helen Hilbero, is doubtful. He points out that it
was odd that despite witnessing her husband murdered and her brother-in-law poisoned, Helen did not

883
make a statement to the police on what she witnessed; that while the police took the sworn statement
of Dominga, the mother of Primo and Antonio, they did not take the statement of the widow, who
allegedly saw everything; and that even after meeting appellant face to face on the morning of May 13,
1992, no confrontation occurred between appellant and her. Furthermore, the prosecution did not
rebut appellant's testimony that Helen admitted to appellant that she did not know what happened to
her husband and brother-in-law. The prosecution suggests that Helen's testimony was a mere
concoction of the political opponents of Mayor Añana and that Helen was coached on her testimony
when it became apparent to Ermac and Viva that Antonio would not testify the way they wanted.
- The Office of the Solicitor General, for its part, contends that there is nothing unnatural in
Helen's failure to immediately disclose what she knew. The failure to reveal the identities of the
perpetrators should not impair her credibility since there is no set standards of human behavior when
one is confronted with a strange, striking, or frightful experience. Moreover, she had her reasons to
keep what she knew to herself. The accused were her neighbors and they could easily cause her and her
family harm. Thus, the trial court, the OSG said, committed no error in relying on her testimony to
convict appellant.
- Where the credibility of a witness is an issue, the established rule is that great respect is
accorded to the evaluation of the credibility of witnesses by the trial court. It is in the best position to
determine the issue of credibility of a witness, having heard his testimony and observed his deportment
and manner of testifying.39 But, where there is a showing that the trial court overlooked material and
relevant facts, which could affect the outcome of a case,40 the Court will not hesitate to set aside the
lower court's findings and assessments regarding the credibility of witnesses.
- In giving full faith and credence to the testimonies of the prosecution witnesses, the trial court
explained:
- The findings of the court relative to the credibility of the witnesses militate in favor of the
prosecution witnesses (citations omitted). The court took into consideration… 'the most important
factor(s) (of) each witness, his manner and behavior on the witness stand and the general characteristics,
tone, tenor and inherent probability of his statement (citations omitted)' for in most instances… 'the
demeanor of a witness on the witness stand is often a better evidence of his veracity than the answer he
gives (citations omitted)' and… 'it is perfectly reasonable to believe the testimony of a witness with
respect to other parts. Everytime when witnesses are found to have deliberately falsified some material
particulars it is not required that the whole of their uncorroborated testimony be rejected but some
portions thereof deemed worthy of belief may be credited. (emphasis ours).41
- On record the lower court heavily relied on the testimony of Helen. However, it did not make
any categorical finding as to her credibility or the veracity of her account.
- We find Helen's testimony riddled with inconsistencies and improbabilities which could affect
the outcome of this case. Helen testified that upon hearing a different voice downstairs, she peeped
through a two-inch hole in the floor and saw, with the moonlight cascading through the windows of the
old mill, the accused forcibly make her husband, Primo, swallow poison.42 On direct examination, she
stated, she heard the words "Don't move."43 Under cross-examination, she said what she heard was
"Don't move so that the grenade will not be exploded." As the cross-examination progressed, however,
she declared that what she actually heard was "Don't move otherwise your family will be included." She
initially admitted that the first words were uttered by a voice unknown to her. On further grilling by the
defense, she claimed she recognized the voice as appellant's Relentless cross-examination, however,
yielded an admission that it was the voice of accused Villamor she heard first.44 The identification of an
accused through his voice is acceptable, particularly if the witness knows the accused personally.45 But
the identification must be categorical and certain. We observed that the witness changed her version a
number of times. A startling or frightful experience creates an indelible impression in the mind such that
the experience can be recalled vividly.46 Where the witness, however, fails to remain consistent on
important details, such as the identity of the person whose voice she heard, a suspicion is created that
"material particulars" in her testimony had indeed been altered. If an eyewitness contradicts himself on
a vital question, the element of reasonable doubt is injected and cannot be lightly disregarded.47
- Helen's testimony contained contradictory statements. In one instance she said she witnessed
the fatal poisoning of her husband by the accused because the mil was lit by moonlight. In another
instance she said the mill was dark and unlit.48 On further cross-examination she claimed that she
witnessed the events because of the bright moonlight.49 First, she said the moonlight was very
bright50then later she said the moon was not very full.51 The defense showed that during that night, five
nights before its fullness, the moon was in its first quarter52 and it was not as bright as a full moon. Note
also that Helen's view of the event was limited because she was only peeping through a small hole.

884
Under these conditions, Helen's flip-flopping testimony created serious doubts regarding its veracity and
credibility. Thus her testimony concerning the destruction of the bamboo slats in one window of the mill
invites serious doubt. The mill had two windows covered with bamboo slats. To enter the mill through
the windows, the bamboo slats must be destroyed. Yet, Helen did not hear the sound of the bamboo
slats being destroyed, which was the only way the intruders could have entered.
- Her testimony regarding the murder of her husband, Primo, is less than credible. She said that
while Primo struggled not to imbibe the poison, he did not utter a sound. According to her, Primo could
not utter a sound as his neck was "clipped", or "headlocked" as the trial court puts it.53 There was no
showing, however, that the victim's mouth was muffled to prevent him from shouting for help. From her
testimony, she could have easily asked for help. It will be recalled that barangay captain and their
neighbors quickly responded to her mother-in-law's shout for help after seeing Primo's corpse.54 Helen's
account, that her husband violently struggled against his murderers yet soundlessly gulped down the
poison they made him drink, is unnatural. It evokes disbelief. Evidence to be believed must not only
proceed from the mouth of a credible witness but it must also be credible by itself, and must conform to
the common experience and observation of mankind.55
- As a rule, an eyewitness testimony cannot be disregarded on account of the delay in reporting
the event, so long as the delay is justified.56 In this case, Helen kept silent for almost two years. She had
no affidavit during the preliminary investigation.57 It was only at the trial that she came out to say she
witnessed her husband's murder. She did not explain why. Her long silence is out of character and
appears inconsistent with her behavior in immediately reporting to the police and the barangay captain
an incident when an unidentified man accosted her on the whereabouts of Antonio.58
- Additionally, on direct testimony, she declared that she knew that Antonio was found in a hole
filled with water on the morning of May 13, 1992.59 Yet, cross-examination, she declared that she did
not know where his rescuers found Antonio that morning.60 Such contradictory statements tend to
erode Helen's credibility as a prosecution witness and raise serious doubt concerning the prosecution's
evidence.
- On the second issue, appellant submits that the trial court erred when it admitted and gave
much weight to the probative value of the "ante mortem" statement of Antonio.61 Appellant contends
that the statement can neither be considered as dying declaration under Rule 130, Sec. 37 62 nor part of
the res gestae under Rule 130, Section 42 63 of the Rules of Court. It is inadmissible for being hearsay.
Furthermore, he avers it was error for the trial court to give weight to the first affidavit of
Antonio,64 since Antonio repudiated the same, stating that its contents were false. According to
appellant, Antonio claimed said affidavit was given under duress.1âwphi1.nêt
- The Solicitor General, for its part, argues that Antonio's actions during and immediately after the
incident were completely inconsistent with those of a person who allegedly wanted to commit suicide.
Hence, his retraction should be looked at with jaundiced eye, following our ruling in People v. Junio, 237
SCRA 826 (1994), where we held that retractions are generally unreliable and looked upon with
considerable disfavor.
- A dying declaration is the statement which refers to the cause and surrounding circumstances of
the declarant's death, made under the consciousness of an impending death."65 It is admissible in
evidence as an exception to the hearsay rule66 because of necessity and trustworthiness. Necessity,
because the declarant's death makes it impossible for him to take the witness stand67 and
trustworthiness, for when a person is at the point of death, every motive for falsehood is silenced and
the mind is induced by the most powerful consideration to speak the truth.68 The requisites for the
admissibility of a dying declaration are: (1) the death is imminent and the declarant is conscious of that
fact; (2) the declaration refers to the cause and surrounding circumstances of such death; (3) the
declaration relates to facts which the victim is competent to testify; (4) the declaration thereafter dies;
and (5) the declaration is offered in a criminal case wherein the declarant's death is the subject of
inquiry.69
- In the present case, the foregoing requisites were not met. A dying declaration is essentially
hearsay, because one person is testifying on what another person stated. This is because the declarant
can no longer be presented in court to identify the document or confirm the statement, but more
important, to be confronted with said statement by the accused and be cross-examined on its
contents.70 It was patently incorrect for the trial court to have allowed prosecution witness PO3
Leonardo Inoc to testify on Antonio's so-called "dying declaration" because Antonio was alive and later
even testified in court.
- But was the purported ante-mortem statement part of the res gestae? Where a victim's
statement may not be admissible as an ante mortem declaration, it may nonetheless be considered as

885
part of the res gestae, if made immediately after a startling occurrence in relation to the circumstances
thereof and when the victim did not have time to contrive a falsehood.71 For res gestae to be allowed as
an exception to the hearsay rule, the following requisites must be satisfied: (1) that the principal act
or res gestae be a startling occurrence; (2) the statement is spontaneous or was made before the
declarant had time to contrive or devise, and the statement is made during the occurrence or
immediately prior or subsequent thereto; and (3) the statement made must concern the occurrence in
question and its immediately attending circumstances.72
- In this case, the element of spontaneity is lacking in the alleged ante-mortem statement.
Antonio's statement was taken by PO3 Inoc at around 3:00 o'clock P.M., May 14, 1992 or some thirty-
nine (39) hours after the incident. Thirty-nine hours is too long a time to be considered subsequent
immediately (stress supplied) to the startling occurrence. Even as contemplated by the rules, statements
given a day after the incident in answer to questions propounded by an investigator cannot be
considered part of the res gestae.73 Furthermore, the testimony of the declarant, that the statement
was made under threats and with coaching from losing candidates Ermac and Viva in order to get even
with the winning candidate, Mayor Añana, is uncontroverted.74
- Dying declarations and statements which form part of the res gestae are exceptions to the
hearsay rule, thus they must be strictly but reasonably construed and must extend only insofar as their
language fairly warrants.75 Thus, doubts should be resolved in favor of applying the hearsay rule, rather
than the exceptions. Under said rule, Antonio's so-called ante-mortem statement should not have been
admitted in evidence, for it is neither a dying declaration nor a part of res gestae.
- Next we consider whether the trial court could properly rely on Antonio's affidavit dated May 22,
1994 naming the persons responsible for the poisoning incident, notwithstanding his subsequent
repudiation of said affidavit. As a rule, retractions are generally unreliable and are looked upon with
considerable disfavor by the courts76 because of the probability that recantation may later on be itself
repudiated.77 Furthermore, retractions can easily be obtained from witnesses through intimidation or
for monetary consideration,78 and a mere retraction does not necessarily negate an earlier
derclaration.79 When faced with a situation where a witness recants an earlier statement, courts do not
automatically exclude the original testimony. The original declaration is compared with the new
statement, to determine which should be believed.80
- In this case, the trial court rejected Antonio's retraction of his affidavit dated May 22, 1992, for
being contrary to human experience and inherently unworthy of belief. The trial court cited, by way of
illustration, the portion of the affidavit where Antonio claimed that after he and Primo agreed to
commit suicide and drinking a bottle of insecticide, Antonio wrote a farewell letter to his barangay-
mates. We note, however, that Antonio's second affidavit should have been rejected together with the
first affidavit. Unless an affiant himself takes the witness stand to affirm the averments in his affidavit,
the affidavit must be excluded from the judicial proceeding for being inadmissible hearsay.81 In this case
the affiant expressly refused to confirm the contents of his first affidavit. Instead, he testified that said
affidavit, Exhibit "E" was prepared under grave threats and severe pressure from Ermac and Viva.82 His
earlier affidavit's contents were hearsay, hence inadmissible in evidence.
- Noted further that Exhibit "E" and its sub-markings were offered, to prove that Antonio testified
in detail before NBI Agent Atty. Amador Robeniol about what happened to him and his brother Primo in
the hands of the five accused."83 Even if said Exhibit was admissible, all that it proves is that Antonio
testified and executed an affidavit before the NBI. It does not prove the truthfulness of the allegations
made and contained therein.
- Coming now to the third issue: has the prosecution succeeded in proving appellant's guilt
beyond reasonable doubt?
- The records show that the only direct evidence linking appellant to the crimes charged and for
which he was convicted are the direct testimony of eyewitness Helen Hilbero and the contents of Exhibit
"E." But as discussed earlier, neither can be given much probative value. As to the testimonies of the
other prosecution witnesses, we find them insufficient to convict appellant as none of them had any
personal knowledge of facts that would directly link appellant to the offenses charged. Even if these
witnesses testified in a straightforward and categorical manner, their testimonies contained insufficient
evidence to establish appellant's guilt beyond reasonable doubt.
- Appellant's defense of denial in the present case is inherently weak.84 Denial, if unsubstantiated
by clear and convincing evidence, is a negative and self-serving evidence undeserving of any weight in
law.85 But such weakness does not excuse the prosecution from presenting the adequate quantum of
proof of the crime charged. The guilt of the accused must be proved beyond reasonable doubt. And the
prosecution's evidence must stand or fall on its own weight. It cannot rely on the weakness of the

886
defense. In the instant case, the prosecution failed to prove the guilt of appellant with moral certainty.
The testimony of its single purported eyewitness, while positive, was less than credible. It did not meet
the test such testimony of a lone witness to sustain a judgment of conviction, must be both positive and
credible.86 In our view, the burden of proof required for conviction of appellant has not been adequately
discharged by the prosecution.

WHEREFORE, the decision of the Regional Trial Court of Tagbilaran City, Branch 1, in Criminal Cases Nos.
7887 and 7888, finding appellant Arturo Enad guilty of murder and frustrated murder is
hereby REVERSED and SET ASIDE for insufficiency of the evidence to convict him beyond reasonable
doubt. Appellant is ACQUITTED and ordered RELEASED from confinement immediately unless he is held
for another lawful cause.

SO ORDERED.

Bellosillo, Mendoza, Buena, and De Leon, Jr. JJ., concur.

887