You are on page 1of 57

THIRD DIVISION BSB GROUP, INC., represented by its President, Mr. RICARDO BANGAYAN, Petitioner, G.R. No.

168644 Present:

to the damage and prejudice of said owner in the aforesaid amount of P1,534,135.50, Philippine currency. That in the commission of the said offense, said accused acted with grave abuse of confidence, being then employed as cashier by said complainant at the time of the commission of the said offense and as such she was entrusted with the said amount of money. Contrary to law.[9]

Promulgated: -versusFebruary 16, 2010

SALLY GO a.k.a. SALLY GOBANGAYAN, Respondent. x-----------------------------------------------------x DECISION PERALTA, J.: This is a Petition for Review under Rule 45 of the Rules of Court assailing the Decision of the Court of Appeals in CA-G.R. SP No. 87600[1] dated April 20, 2005, which reversed and set aside the September 13, 2004[2] and November 5, 2004[3] Orders issued by the Regional Trial Court of Manila, Branch 36[4] in Criminal Case No. 02202158 for qualified theft. The said orders, in turn, respectively denied the motion filed by herein respondent Sally Go for the suppression of the testimonial and documentary evidence relative to a Security Bank account, and denied reconsideration. The basic antecedents are no longer disputed. Petitioner, the BSB Group, Inc., is a duly organized domestic corporation presided by its herein representative, Ricardo Bangayan (Bangayan). Respondent Sally Go, alternatively referred to as Sally Sia Go and Sally Go-Bangayan, is Bangayans wife, who was employed in the company as a cashier, and was engaged, among others, to receive and account for the payments made by the various customers of the company. In 2002, Bangayan filed with the Manila Prosecutors Office a complaint for estafa and/or qualified theft[5] against respondent, alleging that several checks[6] representing the aggregate amount of P1,534,135.50 issued by the companys customers in payment of their obligation were, instead of being turned over to the companys coffers, indorsed by respondent who deposited the same to her personal banking accountmaintained at Security Bank and Trust Company (Security Bank) in Divisoria, Manila Branch.[7] Upon a finding that the evidence adduced was uncontroverted, the assistant city prosecutor recommended the filing of the Information for qualified theft against respondent.[8] Accordingly, respondent was charged before the Regional Trial Court of Manila, Branch 36, in an Information, the inculpatory portion of which reads: That in or about or sometime during the period comprised (sic) between January 1988 [and] October 1989, inclusive, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously with intent [to] gain and without the knowledge and consent of the owner thereof, take, steal and carry away cash money in the total amount of P1,534,135.50 belonging to BSB GROUP OF COMPANIES represented by RICARDO BANGAYAN,

Respondent entered a negative plea when arraigned.[10] The trial ensued. On the premise that respondent had allegedly encashed the subject checks and deposited the corresponding amounts thereof to her personal banking account, the prosecution moved for the issuance of subpoena duces tecum /ad testificandum against the respective managers or records custodians of Security Banks Divisoria Branch, as well as of the Asian Savings Bank (now Metropolitan Bank & Trust Co. [Metrobank]), in Jose Abad Santos, Tondo, Manila Branch.[11] The trial court granted the motion and issued the corresponding subpoena.[12] Respondent filed a motion to quash the subpoena dated November 4, 2003, addressed to Metrobank, noting to the court that in the complaint-affidavit filed with the prosecutor, there was no mention made of the said bank account, to which respondent, in addition to the Security Bank account identified as Account No. 01-14-006, allegedly deposited the proceeds of the supposed checks. Interestingly, while respondent characterized the Metrobank account as irrelevant to the case, she, in the same motion, nevertheless waived her objection to the irrelevancy of the Securi ty Bank account mentioned in the same complaint-affidavit, inasmuch as she was admittedly willing to address the allegations with respect thereto.[13] Petitioner, opposing respondents move, argued for the relevancy of the Metrobank account on the ground that the complaintaffidavit showed that there were two checks which respondent allegedly deposited in an account with the said bank.[14] To this, respondent filed a supplemental motion to quash, invoking the absolutely confidential nature of the Metrobank account under the provisions of Republic Act (R.A.) No. 1405.[15] The trial court did not sustain respondent; hence, it denied the motion to quash for lack of merit.[16] Meanwhile, the prosecution was able to present in court the testimony of Elenita Marasigan (Marasigan), the representative of Security Bank. In a nutshell, Marasigans testimony sought to prove that between 1988 and 1989, respondent, while engaged as cashier at the BSB Group, Inc., was able to run away with the checks issued to the company by its customers, endorse the same, and credit the corresponding amounts to her personal deposit account with Security Bank. In the course of the testimony, the subject checks were presented to Marasigan for identification and marking as the same checks received by respondent, endorsed, and then deposited in her personal account with Security Bank.[17] But before the testimony could be completed, respondent filed a Motion to Suppress,[18] seeking the exclusion of Marasigans testimony and accompanying documents thus far received, bearing on the subject Security Bank account. This time respondent invokes, in addition to irrelevancy, the privilege of confidentiality under R.A. No. 1405. The trial court, nevertheless, denied the motion in its September 13, 2004 Order.[19] A motion for reconsideration was subsequently filed, but it was also denied in the Order dated November 5, 2004.[20] These two orders are the subject of the instant case. Aggrieved, and believing that the trial court gravely abused its discretion in acting the way it did, respondent elevated the matter to 1

the Court of Appeals via a petition for certiorari under Rule 65. Finding merit in the petition, the Court of Appeals reversed and set aside the assailed orders of the trial court in its April 20, 2005 Decision.[21] The decision reads: WHEREFORE, the petition GRANTED. The assailed orders dated 13, 2004 and November 5, 2004 are and SET ASIDE. The testimony of representative is ordered stricken records. SO ORDERED.[22] With the denial of its motion for reconsideration,[23] petitioner is now before the Court pleading the same issues as those raised before the lower courts. In this Petition[24] under Rule 45, petitioner averred in the main that the Court of Appeals had seriously erred in reversing the assailed orders of the trial court, and in effect striking out Marasigans testimony dealing with respondents deposit account with Security Bank.[25] It asserted that apart from the fact that the said evidence had a direct relation to the subject matter of the case for qualified theft and, hence, brings the case under one of the exceptions to the coverage of confidentiality under R.A. 1405.[26] Petitioner believed that what constituted the subject matter in litigation was to be determined by the allegations in the information and, in this respect, it alluded to the assailed November 5, 2004 Order of the trial court, which declared to be erroneous the limitation of the present inquiry merely to what was contained in the information.[27] For her part, respondent claimed that the money represented by the Security Bank account was neither relevant nor material to the case, because nothing in the criminal information suggested that the money therein deposited was the subject matter of the case. She invited particular attention to that portion of the criminal Information which averred that she has stolen and carried away cash money in the total amount of P1,534,135.50. She advanced the notion that the term cash money stated in the Information was not synonymous with the checks she was purported to have stolen from petitioner and deposited in her personal banking account. Thus, the checks which the prosecution had Marasigan identify, as well as the testimony itself of Marasigan, should be suppressed by the trial court at least for violating respondents right to due process.[28] More in point, respondent opined that admitting the testimony of Marasigan, as well as the evidence pertaining to the Security Bank account, would violate the secrecy rule under R.A. No. 1405.[29] In its reply, petitioner asserted the sufficiency of the allegations in the criminal Information for qualified theft, as the same has sufficiently alleged the elements of the offense charged. It posits that through Marasigans testimony, the Court would be able to establish that the checks involved, copies of which were attached to the complaint-affidavit filed with the prosecutor, had indeed been received by respondent as cashier, but were, thereafter, deposited by the latter to her personal account with Security Bank. Petitioner held that the checks represented the cash money stolen by respondent and, hence, the subject matter in this case is not only the cash amount represented by the checks supposedly stolen by respondent, but also the checks themselves.[30] We derive from the conflicting advocacies of the parties that the issue for resolution is whether the testimony of Marasigan and the accompanying documents are irrelevant to the case, and whether they are also violative of the absolutely confidential nature of bank deposits and, hence, excluded by operation of R.A. No. 1405. The question of admissibility of the evidence thus comes to the fore. And the Court, after deliberative estimation, finds the subject evidence to be indeed inadmissible. Prefatorily, fundamental is the precept in all criminal prosecutions, that the constitutive acts of the offense must be is hereby September REVERSED the SBTC from the

established with unwavering exactitude and moral certainty because this is the critical and only requisite to a finding of guilt. [31] Theft is present when a person, with intent to gain but without violence against or intimidation of persons or force upon things, takes the personal property of another without the latters consent. It is qualified when, among others, and as alleged in the instant case, it is committed with abuse of confidence.[32] The prosecution of this offense necessarily focuses on the existence of the following elements: (a) there was taking of personal property belonging to another; (b) the taking was done with intent to gain; (c) the taking was done without the consent of the owner; (d) the taking was done without violence against or intimidation of persons or force upon things; and (e) it was done with abuse of confidence.[33] In turn, whether these elements concur in a way that overcomes the presumption of guiltlessness, is a question that must pass the test of relevancy and competency in accordance with Section 3[34] Rule 128 of the Rules of Court. Thus, whether these pieces of evidence sought to be suppressed in this case the testimony of Marasigan, as well as the checks purported to have been stolen and deposited in respondents Security Bank account are relevant, is to be addressed by considering whether they have such direct relation to the fact in issue as to induce belief in its existence or non-existence; or whether they relate collaterally to a fact from which, by process of logic, an inference may be made as to the existence or non-existence of the fact in issue.[35] The fact in issue appears to be that respondent has taken away cash in the amount of P1,534,135.50 from the coffers of petitioner. In support of this allegation, petitioner seeks to establish the existence of the elemental act of taking by adducing evidence that respondent, at several times between 1988 and 1989, deposited some of its checks to her personal account with Security Bank. Petitioner addresses the incongruence between the allegation of theft of cash in the Information, on the one hand, and the evidence that respondent had first stolen the checks and deposited the same in her banking account, on the other hand, by impressing upon the Court that there obtains no difference between cash and check for purposes of prosecuting respondent for theft of cash. Petitioner is mistaken. In theft, the act of unlawful taking connotes deprivation of personal property of one by another with intent to gain, and it is immaterial that the offender is able or unable to freely dispose of the property stolen because the deprivation relative to the offended party has already ensued from such act of execution.[36] The allegation of theft of money, hence, necessitates that evidence presented must have a tendency to prove that the offender has unlawfully taken money belonging to another. Interestingly, petitioner has taken pains in attempting to draw a connection between the evidence subject of the instant review, and the allegation of theft in the Information by claiming that respondent had fraudulently deposited the checks in her own name. But this line of argument works more prejudice than favor, because it in effect, seeks to establish the commission, not of theft, but rather of some other crime probably estafa. Moreover, that there is no difference between cash and check is true in other instances. In estafa by conversion, for instance, whether the thing converted is cash or check, is immaterial in relation to the formal allegation in an information for that offense; a check, after all, while not regarded as legal tender, is normally accepted under commercial usage as a substitute for cash, and the credit it represents in stated monetary value is properly capable of appropriation. And it is in this respect that what the offender does with the check subsequent to the act of unlawfully taking it becomes material inasmuch as this offense is a continuing one.[37] In other words, in pursuing a case for this offense, the prosecution may establish its cause by the presentation of the checks involved. These checks would then constitute the best evidence to establish their contents and to prove the elemental act of conversion in support of the proposition that the offender has indeed indorsed the same in his own name.[38] Theft, however, is not of such character. Thus, for our purposes, as the Information in this case accuses respondent of having 2

stolen cash, proof tending to establish that respondent has actualized her criminal intent by indorsing the checks and depositing the proceeds thereof in her personal account, becomes not only irrelevant but also immaterial and, on that score, inadmissible in evidence. We now address the issue of whether the admission of Marasigans testimony on the particulars of respondents account with Security Bank, as well as of the corresponding evidence of the checks allegedly deposited in said account, constitutes an unallowable inquiry under R.A. 1405. It is conceded that while the fundamental law has not bothered with the triviality of specifically addressing privacy rights relative to banking accounts, there, nevertheless, exists in our jurisdiction a legitimate expectation of privacy governing such accounts. The source of this right of expectation is statutory, and it is found in R.A. No. 1405,[39] otherwise known as the Bank Secrecy Act of 1955. [40] R.A. No. 1405 has two allied purposes. It hopes to discourage private hoarding and at the same time encourage the people to deposit their money in banking institutions, so that it may be utilized by way of authorized loans and thereby assist in economic development.[41] Owing to this piece of legislation, the confidentiality of bank deposits remains to be a basic state policy in the Philippines.[42] Section 2 of the law institutionalized this policy by characterizing as absolutely confidential in general all deposits of whatever nature with banks and other financial institutions in the country. It declares: Section 2. All deposits of whatever nature with banks or banking institutions in the Philippines including investments in bonds issued by the Government of the Philippines, its political subdivisions and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be examined, inquired or looked into by any person, government official, bureau or office, except upon written permission of the depositor, or in cases of impeachment, or upon order of a competent court in cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or invested is the subject matter of the litigation.

withdrawal until further order. It will be noted from the discussion of the conference committee report on Senate Bill No. 351 and House Bill No. 3977which later became Republic Act No. 1405, that it was not the intention of the lawmakers to place banks deposits beyond the reach of execution to satisfy a final judgment. Thus: x x x Mr. Marcos: Now, for purposes of the record, I should like the Chairman of the Committee on Ways and Means to clarify this further. Suppose an individual has a tax case. He is being held liable by the Bureau of Internal Revenue [(BIR)] or, say, P1,000.00 worth of tax liability, and because of this the deposit of this individual [has been] attached by the [BIR]. Mr. Ramos: The attachment will only apply after the court has pronounced sentence declaring the liability of such person. But where the primary aim is to determine whether he has a bank deposit in order to bring about a proper assessment by the [BIR], such inquiry is not allowed by this proposed law. Mr. Marcos: But under our rules of procedure and under the Civil Code, the attachment or garnishment of money deposited is allowed. Let us assume for instance that there is a preliminary attachment which is for garnishment or for holding liable all moneys deposited belonging to a certain individual, but such attachment or garnishment will bring out into the open the value of such deposit. Is that prohibited by... the law? Mr. Ramos: It is only prohibited to the extent that the inquiry... is made only for the purpose of satisfying a tax liability already declared for the protection of the right in favor of the government; but when the object is merely to inquire whether he has a deposit or not for purposes of taxation, then this is fully covered by the law. x x x Mr. Marcos: The law prohibits a mere investigation into the existence and the amount of the deposit. Mr. Ramos: Into the very nature of such deposit. x x x[47] In taking exclusion from the coverage of the confidentiality rule, petitioner in the instant case posits that the account maintained by respondent with Security Bank contains the proceeds of the checks that she has fraudulently appropriated to herself and, thus, falls under one of the exceptions in Section 2 of R.A. No. 1405 that the money kept in said account is the subject matter in litigation. To highlight this thesis, petitioner avers, citing Mathay v. Consolidated Bank and Trust Co.,[48] that the subject matter of the action refers to the physical facts; the things real or personal; the money, lands, chattels and the like, in relation to which the suit is prosecuted, which in the instant case should refer to the money deposited in the Security Bank account.[49] On the surface, however, it seems that petitioners theory is valid to a point, yet a deeper treatment tends to show that it has argued quite off-tangentially. This, because, while Mathay did explain what the subject matter of an action is, it nevertheless did so only to determine whether the class suit in that case was properly brought to the court. What indeed constitutes the subject matter in litigation in relation to Section 2 of R.A. No. 1405 has been pointedly and amply addressed in Union Bank of the Philippines v. Court of Appeals,[50] in which the Court noted that the inquiry into bank deposits allowable under R.A. No. 1405 must be premised on the fact that the money 3

Subsequent statutory enactments have expanded the list of exceptions to this policy yet the secrecy of bank deposits still lies as the general rule, falling as it does within the legally recognized zones of privacy.[44] There is, in fact, much disfavor to construing these primary and supplemental exceptions in a manner that would authorize unbridled discretion, whether governmental or otherwise, in utilizing these exceptions as authority for unwarranted inquiry into bank accounts. It is then perceivable that the present legal order is obliged to conserve the absolutely confidential nature of bank deposits.[45] The measure of protection afforded by the law has been explained in China Banking Corporation v. Ortega.[46] That case principally addressed the issue of whether the prohibition against an examination of bank deposits precludes garnishment in satisfaction of a judgment. Ruling on that issue in the negative, the Court found guidance in the relevant portions of the legislative deliberations on Senate Bill No. 351 and House Bill No. 3977, which later became the Bank Secrecy Act, and it held that the absolute confidentiality rule in R.A. No. 1405 actually aims at protection from unwarranted inquiry or investigation if the purpose of such inquiry or investigation is merely to determine the existence and nature, as well as the amount of the deposit in any given bank account. Thus, x x x The lower court did not order an examination of or inquiry into the deposit of B&B Forest Development Corporation, as contemplated in the law. It merely required Tan Kim Liong to inform the court whether or not the defendant B&B Forest Development Corporation had a deposit in the China Banking Corporation only for purposes of the garnishment issued by it, so that the bank would hold the same intact and not allow any

[43]

deposited in the account is itself the subject of the action.[51] Given this perspective, we deduce that the subject matter of the action in the case at bar is to be determined from the indictment that charges respondent with the offense, and not from the evidence sought by the prosecution to be admitted into the records. In the criminal Information filed with the trial court, respondent, unqualifiedly and in plain language, is charged with qualified theft by abusing petitioners trust and confidence and stealing cash in the amount of P1,534,135.50. The said Information makes no factual allegation that in some material way involves the checks subject of the testimonial and documentary evidence sought to be suppressed. Neither do the allegations in said Information make mention of the supposed bank account in which the funds represented by the checks have allegedly been kept. In other words, it can hardly be inferred from the indictment itself that the Security Bank account is the ostensible subject of the prosecutions inquiry. Without needlessly expanding the scope of what is plainly alleged in the Information, the subject matter of the action in this case is the money amounting to P1,534,135.50 alleged to have been stolen by respondent, and not the money equivalent of the checks which are sought to be admitted in evidence. Thus, it is that, which the prosecution is bound to prove with its evidence, and no other. It comes clear that the admission of testimonial and documentary evidence relative to respondents Security Bank account serves no other purpose than to establish the existence of such account, its nature and the amount kept in it. It constitutes an attempt by the prosecution at an impermissible inquiry into a bank deposit account the privacy and confidentiality of which is protected by law. On this score alone, the objection posed by respondent in her motion to suppress should have indeed put an end to the controversy at the very first instance it was raised before the trial court. In sum, we hold that the testimony of Marasigan on the particulars of respondents supposed bank account with Security Bank and the documentary evidence represented by the checks adduced in support thereof, are not only incompetent for being excluded by operation of R.A. No. 1405. They are likewise irrelevant to the case, inasmuch as they do not appear to have any logical and reasonable connection to the prosecution of respondent for qualified theft. We find full merit in and affirm respondents objection to the evidence of the prosecution. The Court of Appeals was, therefore, correct in reversing the assailed orders of the trial court. A final note. In any given jurisdiction where the right of privacy extends its scope to include an individuals financial privacy rights and personal financial matters, there is an intermediate or heightened scrutiny given by courts and legislators to laws infringing such rights.[52] Should there be doubts in upholding the absolutely confidential nature of bank deposits against affirming the authority to inquire into such accounts, then such doubts must be resolved in favor of the former. This attitude persists unless congress lifts its finger to reverse the general state policy respecting the absolutely confidential nature of bank deposits.[53] WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 87600 dated April 20, 2005, reversing the September 13, 2004 and November 5, 2004 Orders of the Regional Trial Court of Manila, Branch 36 in Criminal Case No. 02202158, is AFFIRMED. SO ORDERED. SECOND DIVISION G.R. No. 191392 March 14, 2011 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. ROLLY SORIAGA y STO. DOMINGO, Accused-Appellant. DECISION

MENDOZA, J.: This is an appeal from the November 27 2009 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 03108, which affirmed the finding of guilt by the Regional Trial Court, Makati City, Branch 64 (RTC), in Criminal Case No. 03-4031, convicting accused Rolly Soriaga (Soriaga) of Violation of Section 5, Article II, Republic Act (R.A.) No. 9165.2The Information filed against him reads: That on or about the 15th day of October, 2003, in the City of Makati, 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, distribute and transport Methylamphetamine Hydrochloride, weighing zero point zero five (0.05) gram, which is a dangerous drug, in consideration of one hundred (P100.00) pesos, in violation of the above-cited law. CONTRARY TO LAW.3 In the afternoon of October 15, 2003, Barangay Captain Manuel Adao of the Makati Anti-Drug Abuse Council Cluster 2 (MADAC) received an information about Soriagas unbridled selling of illegal drugs on Arellano and Bautista Streets, Barangay Palanan, Makati City. Consequently, a joint buy-bust operation was conducted by the police headed by PO3 Henry Montes (PO3 Montes) and the MADAC represented by Herminia Facundo (Facundo) and Leovino Perez(Perez). Facundo was designated as the poseur-buyer. Thereafter, the team proceeded to the target area accompanied by their informant. Facundo and the informant met Soriaga at the corner of Arellano and Bautista Streets. Soriaga asked the informant, "Okay ba yan, pre?" The informant assured Soriaga, "Barkada ko yan, okay to." Soriaga then asked Facundo how much she was going to buy, and the latter replied, "Piso lang." Thereafter, Soriaga took the P100.00 marked-money from Facundo and placed it in his front pocket. Instantaneously, Soriaga took out a plastic sachet with crystalline substance from his left pocket and handed it over to Facundo. The latter immediately gave the pre-arranged signal by throwing a lighted cigarette and the rest of the buy-bust team rushed to the scene. PO3 Montes ordered Perez to empty the pockets of Soriaga and recovered the P100.00 marked-money. Facundo marked the plastic sachet that Soriaga gave her with the letters "RSD." Facundo placed the same initials on the recovered money. Soriaga was placed under arrest and brought to the office of the Antiillegal Drugs Special Operation Task Force. The evidence seized was turned over to police investigator PO2 Reynaldo Juan. An examination was conducted on the contents of the plastic sachet which tested positive for Methylamphetamine Hydrochloride.4 In addition to the above-mentioned charge, Soriaga was also indicted for illegal use of dangerous drugs under Section 15, Article II, also of R.A. No. 9165. On July 14, 2007, the RTC rendered a decision acquitting Soriaga of this charge of illegal use of dangerous drugs but finding him guilty beyond reasonable doubt of the crime of illegally selling dangerous drugs. The fallo of said decision reads as follows: WHEREFORE, the premises considered, Judgment is rendered in these cases as follows: 1. In Criminal Case No. 03-4031, finding accused Rolly Soriaga y Sto. Domingo GUILTY beyond reasonable doubt of Violation of Section 5, Art. II, RA 9165, and sentencing him to suffer the penalty of life imprisonment and to pay a fine in the amount of P500,000.00. Said accused shall be given credit for the period of his preventive detention.

2. In Criminal Case No. 03-5007, acquitting the said accused Rolly Soriaga y Sto. Domingo from the charge of Violation of Section 15, Art. II, R.A. No. 9165, upon a reasonable doubt. It is further ordered that the dangerous drugs subject of Criminal Case No. 03-4031 be transmitted to the Philippine Drug Enforcement Agency (PDEA) for the latters appropriate disposition. SO ORDERED.5 On appeal, the CA affirmed in toto the July 14, 2007 Decision of the RTC.6 When the case was elevated to this Court, Soriaga, through the Public Attorneys Office, and the Office of the Solicitor General, both manifested that they would no longer file their respective supplemental briefs and, instead, they would adopt all the arguments in their briefs filed before the CA. In his Appellants Brief, Soriaga presented the following: ASSIGNMENT OF ERRORS I THE TRIAL COURT GRAVELY ERRED IN RENDERING A VERDICT OF CONVICTION DESPITE THE PROSECUTIONS FAILURE TO PROVE THE GUILT OF THE ACCUSED-APPELLANT BEYOND REASONABLE DOUBT. II THE TRIAL COURT ERRED IN RENDERING A JUDGMENT OF CONVICTION DESPITE THE PROSECUTIONS FAILURE TO ESTABLISH THE CHAIN OF CUSTODY OF THE ALLEGED SHABU.7 The Court finds no merit in the appeal. "A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing the lawbreakers in the execution of their criminal plan. In this jurisdiction, the operation is legal and has been proved to be an effective method of apprehending drug peddlers, provided due regard to constitutional and legal safeguards is undertaken."8 Soriaga argues that the buy-bust team failed to comply with the requisites of Section 21, Article II of R.A. No. 9165 and its implementing rules requiring the immediate inventory and photograph of the items seized in the buy-bust operation. Further, Soriaga proceeds to question the chain of custody of the seized shabu. First of all, what is material to the prosecution for illegal sale of prohibited or dangerous drugs is the proof that the transaction or sale actually took place, plus the presentation of the corpus delicti as evidence. Thus, the elements essential to the crime of illegal sale of prohibited or dangerous drugs are: (i) the accused sold and delivered a prohibited drug to another; and (ii) he knew that what he had sold and delivered was a prohibited drug.9 The RTC and the CA both found the above elements to have been satisfactorily proved by the prosecution in the present case. Soriaga sold and delivered the shabu for P100 to Facundo, the poseur buyer. Facundo herself testified that there was an actual exchange of the marked-money and the prohibited drug. Certainly, Soriaga was aware that what he was selling was illegal and prohibited. Thereafter, the corpus delicti or the subject drug was seized, marked and subsequently identified as a prohibited drug. At the trial, the same

drug with the identifying marks intact was presented in evidence. Coupled with the unwavering testimony of Facundo who had no reason at all to falsely accuse Soriaga and who was only doing her job, the prosecution convinced the RTC to render a judgment of conviction. In the absence of any showing that substantial or relevant facts bearing on the elements of the crime have been misapplied or overlooked, the Court can only accord full credence to such factual assessment of the trial court which had the distinct advantage of observing the demeanor and conduct of the witnesses at the trial.10 Absent any proof of motive to falsely charge an accused of such a grave offense, the presumption of regularity in the performance of official duty and the findings of the trial court with respect to the credibility of witnesses shall prevail over his bare allegation.11 On the issue of non-compliance with the prescribed procedures in the inventory of seized drugs, the rule is that it does not render an accused's arrest illegal or the items seized/confiscated from him inadmissible.12 The requirements under R.A. No. 9165 and its Implementing Rules and Regulations (IRR) are not inflexible. What is essential is "the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the accused."13 Thus, in the case of People v. Domado,14 it was written: From the point of view of jurisprudence, we are not beating any new path by holding that the failure to undertake the required photography and immediate marking of seized items may be excused by the unique circumstances of a case. In People v. Resurreccion, we already stated that "marking upon immediate confiscation" does not exclude the possibility that marking can be at the police station or office of the apprehending team. In the cases of People v. Rusiana, People v. Hernandez, and People v. Gum-Oyen, the apprehending team marked the confiscated items at the police station and not at the place of seizure. Nevertheless, we sustained the conviction because the evidence showed that the integrity and evidentiary value of the items seized had been preserved.1avvphi1 To reiterate what we have held in past cases, we are not always looking for the strict step-by-step adherence to the procedural requirements; what is important is to ensure the preservation of the integrity and the evidentiary value of the seized items, as these would determine the guilt or innocence of the accused. We succinctly explained this in People v. Del Monte when we held: We would like to add that non-compliance with Section 21 of said law, particularly the making of the inventory and the photographing of the drugs confiscated and/or seized, will not render the drugs inadmissible in evidence. Under Section 3 of Rule 128 of the Rules of Court, evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. For evidence to be inadmissible, there should be a law or rule which forbids its reception. If there is no such law or rule, the evidence must be admitted subject only to the evidentiary weight that will [be] accorded it by the courts. x x x We do not find any provision or statement in said law or in any rule that will bring about the non-admissibility of the confiscated and/or seized drugs due to non-compliance with Section 21 of Republic Act No. 9165. The issue therefore, if there is non-compliance with said section, is not of admissibility, but of weight evidentiary merit or probative value to be given the evidence. The weight to be given by the courts on said evidence depends on the circumstances obtaining in each case.15 Following the consummation of the sale and the arrest of Soriaga, Facundo proceeded to mark the sachet received from Soriaga with the initials "RSD" while still at the crime scene. At the police station, the marked sachet was turned over to PO2 Reynaldo Juan. Thereafter, a letter request together with the marked sachet was sent to the Philippine National Police Crime Laboratory of the Southern Police District for a laboratory examination of the contents of the marked 5

sachet. Thereafter, the Forensic Chemical Officer of the Crime Laboratory, Police Inspector Richard Allan S. Mangalip issued his report confirming that the specimen from the sachet marked "RSD" contained or tested positive for shabu.16 With the foregoing, the Court agrees with the RTC and the CA that the chain of custody was unbroken thereby ensuring the integrity of the corpus delicti. Necessarily, the conviction of Soriaga must be sustained. WHEREFORE, the appeal is DENIED. SO ORDERED. FIRST DIVISION [G.R. No. 148220. June 15, 2005] ROSENDO HERRERA, petitioner, vs. ROSENDO ALBA, minor, represented by his mother ARMI A. ALBA, and HON. NIMFA CUESTA-VILCHES, Presiding Judge, Branch 48, Regional Trial Court , Manila, respondents. DECISION CARPIO, J.: The Case This is a petition for review[1] to set aside the Decision[2] dated 29 November 2000 of the Court of Appeals (appellate court) in CAG.R. SP No. 59766. The appellate court affirmed two Orders[3] issued by Branch 48 of the Regional Trial Court of Manila (trial court) in SP No. 98-88759. The Order dated 3 February 2000 directed Rosendo Herrera (petitioner) to submit to deoxyribonucleic acid (DNA) paternity testing, while the Order dated 8 June 2000 denied petitioners motion for reconsideration.

In an Order dated 3 February 2000, the trial court granted respondents motion to conduct DNA paternity testing on petitioner, respondent and Armi Alba. Thus: In view of the foregoing, the motion of the petitioner is GRANTED and the relevant individuals, namely: the petitioner, the minor child, and respondent are directed to undergo DNA paternity testing in a laboratory of their common choice within a period of thirty (30) days from receipt of the Order, and to submit the results thereof within a period of ninety (90) days from completion. The parties are further reminded of the hearing set on 24 February 2000 for the reception of other evidence in support of the petition. IT IS SO ORDERED.[5] (Emphasis in the original) Petitioner filed a motion for reconsideration of the 3 February 2000 Order. He asserted that under the present circumstances, the DNA test [he] is compelled to take would be inconclusive, irrelevant and the coercive process to obtain the requisite specimen, unconstitutional. In an Order dated 8 June 2000, the trial court denied petitioners motion for reconsideration.[6] On 18 July 2000, petitioner filed before the appellate court a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure. He asserted that the trial court rendered the Orders dated 3 February 2000 and 8 June 2000 in excess of, or without jurisdiction and/or with grave abuse of discretion amounting to lack or excess of jurisdiction. Petitioner further contended that there is no appeal nor any [other] plain, adequate and speedy remedy in the ordinary course of law. Petitioner maintained his previous objections to the taking of DNA paternity testing. He submitted the following grounds to support his objection: 1. 2. Public respondent misread and misapplied the ruling in Lim vs. Court of Appeals (270 SCRA 2). Public respondent ruled to accept DNA test without considering the limitations on, and conditions precedent for the admissibility of DNA testing and ignoring the serious constraints affecting the reliability of the test as admitted by private respondents expert witness. Subject Orders lack legal and factual support, with public respondent relying on scientific findings and conclusions unfit for judicial notice and unsupported by experts in the field and scientific treatises. Under the present circumstances the DNA testing petitioner [is] compelled to take will be inconclusive, irrelevant and the coercive process to obtain the requisite specimen from the petitioner, unconstitutional.[7]

The Facts 3. On 14 May 1998, then thirteen-year-old Rosendo Alba (respondent), represented by his mother Armi Alba, filed before the trial court a petition for compulsory recognition, support and damages against petitioner. On 7 August 1998, petitioner filed his answer with counterclaim where he denied that he is the biological father of respondent. Petitioner also denied physical contact with respondents mother. Respondent filed a motion to direct the taking of DNA paternity testing to abbreviate the proceedings. To support the motion, respondent presented the testimony of Saturnina C. Halos, Ph.D. When she testified, Dr. Halos was an Associate Professor at De La Salle University where she taught Cell Biology. She was also head of the University of the Philippines Natural Sciences Research Institute (UP-NSRI), a DNA analysis laboratory. She was a former professor at the University of the Philippines in Diliman, Quezon City, where she developed the Molecular Biology Program and taught Molecular Biology. In her testimony, Dr. Halos described the process for DNA paternity testing and asserted that the test had an accuracy rate of 99.9999% in establishing paternity.[4] Petitioner opposed DNA paternity testing and contended that it has not gained acceptability. Petitioner further argued that DNA paternity testing violates his right against self-incrimination.

4.

The Ruling of the Court of Appeals

On 29 November 2000, the appellate court issued a decision denying the petition and affirming the questioned Orders of the trial court. The appellate court stated that petitioner merely desires to correct the trial courts evaluation of evidence. Thus, appeal is an available remedy for an error of judgment that the court may commit in the exercise of its jurisdiction. The appellate court also stated that the proposed DNA paternity testing does not violate his right against self-incrimination because the right applies only to testimonial compulsion. Finally, the appellate court pointed out that petitioner can still refute a possible adverse result of the DNA paternity testing. The dispositive portion of the appellate courts decision reads: WHEREFORE, foregoing premises considered, the Petition is hereby DENIED DUE COURSE, and ordered dismissed, and the

The Ruling of the Trial Court

challenged orders of the Trial Court AFFIRMED, with costs to Petitioner. SO ORDERED.[8] Petitioner moved for reconsideration, which the appellate court denied in its Resolution dated 23 May 2001.[9]

biological father.[19] This kind of evidence appeals to the emotions of the trier of fact. In the present case, the trial court encountered three of the four aspects. Armi Alba, respondents mother, put forward a prima facie case when she asserted that petitioner is respondents biological father. Aware that her assertion is not enough to convince the trial court, she offered corroborative proof in the form of letters and pictures. Petitioner, on the other hand, denied Armi Albas assertion. He denied ever having sexual relations with Armi Alba and stated that respondent is Armi Albas child with another man. Armi Alba countered petitioners denial by submitting pictures of respondent and petitioner side by side, to show how much they resemble each other. Paternity and filiation disputes can easily become credibility contests. We now look to the law, rules, and governing jurisprudence to help us determine what evidence of incriminating acts on paternity and filiation are allowed in this jurisdiction.

Issues

Petitioner raises the issue of whether a DNA test is a valid probative tool in this jurisdiction to determine filiation. Petitioner asks for the conditions under which DNA technology may be integrated into our judicial system and the prerequisites for the admissibility of DNA test results in a paternity suit.[10] Petitioner further submits that the appellate court gravely abused its discretion when it authorized the trial court to embark in [sic] a new procedure xxx to determine filiation despite the absence of legislation to ensure its reliability and integrity, want of official recognition as made clear in Lim vs. Court of Appeals and the presence of technical and legal constraints in respect of [sic] its implementation.[11] Petitioner maintains that the proposed DNA paternity testing violates his right against self-incrimination.[12]

Laws, Rules, and Jurisprudence Establishing Filiation

The relevant provisions of the Family Code provide as follows: ART. 175. Illegitimate children may establish their illegitimate filiation in the same way and on the same evidence as legitimate children. xxx ART. 172. The filiation of legitimate children is established by any of the following: (1) (2) The record of birth appearing in the civil register or a final judgment; or An admission of legitimate filiation in a public document or a private handwritten instrument and signed by the parent concerned.

The Ruling of the Court

The petition has no merit. Before discussing the issues on DNA paternity testing, we deem it appropriate to give an overview of a paternity suit and apply it to the facts of this case. We shall consider the requirements of the Family Code and of the Rules of Evidence to establish paternity and filiation.

An Overview of the Paternity and Filiation Suit

In the absence of the foregoing evidence, the legitimate filiation shall be proved by: (1) (2) The open and continuous possession of the status of a legitimate child; or Any other means allowed by the Rules of Court and special laws.

Filiation proceedings are usually filed not just to adjudicate paternity but also to secure a legal right associated with paternity, such as citizenship,[13]support (as in the present case), or inheritance. The burden of proving paternity is on the person who alleges that the putative father is the biological father of the child. There are four significant procedural aspects of a traditional paternity action which parties have to face: a prima facie case, affirmative defenses, presumption of legitimacy, and physical resemblance between the putative father and child.[14] A prima facie case exists if a woman declares that she had sexual relations with the putative father. In our jurisdiction, corroborative proof is required to carry the burden forward and shift it to the putative father.[15] There are two affirmative defenses available to the putative father. The putative father may show incapability of sexual relations with the mother, because of either physical absence or impotency.[16] The putative father may also show that the mother had sexual relations with other men at the time of conception. A child born to a husband and wife during a valid marriage is presumed legitimate.[17] The childs legitimacy may be impugned only under the strict standards provided by law.[18] Finally, physical resemblance between the putative father and child may be offered as part of evidence of paternity. Resemblance is a trial technique unique to a paternity proceeding. However, although likeness is a function of heredity, there is no mathematical formula that could quantify how much a child must or must not look like his

The Rules on Evidence include provisions on pedigree. The relevant sections of Rule 130 provide: SEC. 39. Act or declaration about pedigree.The act or declaration of a person deceased, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration. The word pedigree includes relationship, family genealogy, birth, marriage, death, the dates when and the places where these facts occurred, and the names of the relatives. It embraces also facts of family history intimately connected with pedigree. SEC. 40. Family reputation or tradition regarding pedigree. The reputation or tradition existing in a family previous to the controversy, in respect to the pedigree of any one of its members, may be received in evidence if the witness testifying thereon be also a member of the family, either by consanguinity or affinity. Entries in family bibles or other family books or charts, engraving on rings, family portraits and the like, may be received as evidence of pedigree. This Courts rulings further specify what incriminating acts are acceptable as evidence to establish filiation. In Pe Lim v. CA,[20] a 7

case petitioner often cites, we stated that the issue of paternity still has to be resolved by such conventional evidence as the relevant incriminating verbal and written acts by the putative father. Under Article 278 of the New Civil Code, voluntary recognition by a parent shall be made in the record of birth, a will, a statement before a court of record, or in any authentic writing. To be effective, the claim of filiation must be made by the putative father himself and the writing must be the writing of the putative father.[21] A notarial agreement to support a child whose filiation is admitted by the putative father was considered acceptable evidence.[22] Letters to the mother vowing to be a good father to the child and pictures of the putative father cuddling the child on various occasions, together with the certificate of live birth, proved filiation.[23] However, a student permanent record, a written consent to a fathers operation, or a marriage contract where the putative father gave consent, cannot be taken as authentic writing.[24] Standing alone, neither a certificate of baptism[25] nor family pictures[26] are sufficient to establish filiation. So far, the laws, rules, and jurisprudence seemingly limit evidence of paternity and filiation to incriminating acts alone. However, advances in science show that sources of evidence of paternity and filiation need not be limited to incriminating acts. There is now almost universal scientific agreement that blood grouping tests are conclusive on non-paternity, although inconclusive on paternity.[27] In Co Tao v. Court of Appeals,[28] the result of the blood grouping test showed that the putative father was a possible father of the child. Paternity was imputed to the putative father after the possibility of paternity was proven on presentation during trial of facts and circumstances other than the results of the blood grouping test. In Jao v. Court of Appeals,[29] the child, the mother, and the putative father agreed to submit themselves to a blood grouping test. The National Bureau of Investigation (NBI) conducted the test, which indicated that the child could not have been the possible offspring of the mother and the putative father. We held that the result of the blood grouping test was conclusive on the non-paternity of the putative father. The present case asks us to go one step further. We are now asked whether DNA analysis may be admitted as evidence to prove paternity.

Every gene has a certain number of the above base pairs distributed in a particular sequence. This gives a person his or her genetic code. Somewhere in the DNA framework, nonetheless, are sections that differ. They are known as polymorphic loci, which are the areas analyzed in DNA typing (profiling, tests, fingerprinting, or analysis/DNA fingerprinting/genetic tests or fingerprinting). In other words, DNA typing simply means determining the polymorphic loci. How is DNA typing performed? From a DNA sample obtained or extracted, a molecular biologist may proceed to analyze it in several ways. There are five (5) techniques to conduct DNA typing. They are: the RFLP (restriction fragment length polymorphism); reverse dot blot or HLA DQ a/Pm loci which was used in 287 cases that were admitted as evidence by 37 courts in the U.S. as of November 1994; mtDNA process; VNTR (variable number tandem repeats); and the most recent which is known as the PCR-([polymerase] chain reaction) based STR (short tandem repeats) method which, as of 1996, was availed of by most forensic laboratories in the world. PCR is the process of replicating or copying DNA in an evidence sample a million times through repeated cycling of a reaction involving the so-called DNA polymerize enzyme. STR, on the other hand, takes measurements in 13 separate places and can match two (2) samples with a reported theoretical error rate of less than one (1) in a trillion. Just like in fingerprint analysis, in DNA typing, matches are determined. To illustrate, when DNA or fingerprint tests are done to identify a suspect in a criminal case, the evidence collected from the crime scene is compared with the known print. If a substantial amount of the identifying features are the same, the DNA or fingerprint is deemed to be a match. But then, even if only one feature of the DNA or fingerprint is different, it is deemed not to have come from the suspect. As earlier stated, certain regions of human DNA show variations between people. In each of these regions, a person possesses two genetic types called allele, one inherited from each parent. In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[32] (Emphasis in the original) Although the term DNA testing was mentioned in the 1995 case of People v. Teehankee, Jr.,[33] it was only in the 2001 case of Tijing v. Court of Appeals[34] that more than a passing mention was given to DNA analysis. In Tijing, we issued a writ of habeas corpus against respondent who abducted petitioners youngest son. Testimonial and documentary evidence and physical resemblance were used to establish parentage. However, we observed that: 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 test 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. xxx For it was said, that courts should apply the results of science when completely obtained in aid of situations presented, since to reject said result is to deny progress. Though it is not necessary in this case to resort to DNA testing, in [the] future it would be useful to all concerned in the prompt resolution of parentage and identity issues.

DNA Analysis as Evidence

DNA is the fundamental building block of a persons entire genetic make-up. DNA is found in all human cells and is the same in every cell of the same person. Genetic identity is unique. Hence, a persons DNA profile can determine his identity.[30] DNA analysis is a procedure in which DNA extracted from a biological sample obtained from an individual is examined. The DNA is processed to generate a pattern, or a DNA profile, for the individual from whom the sample is taken. This DNA profile is unique for each person, except for identical twins.[31] We quote relevant portions of the trial courts 3 February 2000 Order with approval: Everyone is born with a distinct genetic blueprint called DNA (deoxyribonucleic acid). It is exclusive to an individual (except in the rare occurrence of identical twins that share a single, fertilized egg), and DNA is unchanging throughout life. Being a component of every cell in the human body, the DNA of an individuals blood is the very DNA in his or her skin cells, hair follicles, muscles, semen, samples from buccal swabs, saliva, or other body parts. The chemical structure of DNA has four bases. They are known as A (adenine), G (guanine), C (cystosine) and T (thymine). The order in which the four bases appear in an individuals DNA determines his or her physical makeup. And since DNA is a double-stranded molecule, it is composed of two specific paired bases, A-T or T-A and G-C or C-G. These are called genes.

Admissibility of DNA Analysis as Evidence


The 2002 case of People v. Vallejo discussed DNA analysis as evidence. This may be considered a 180 degree turn from the Courts wary attitude towards DNA testing in the 1997 Pe Lim case,[36] where we stated that DNA, being a relatively new science, xxx has not yet been accorded official recognition by our courts. In Vallejo, the DNA profile from the vaginal swabs taken from the rape victim matched the accuseds DNA profile. We affirmed the accuseds conviction of rape with homicide and sentenced him to death. We declared: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: 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.[37]
[35]

Supreme Court included the admissibility of DNA test results in a criminal proceeding. The state Supreme Court concluded that: While we agree with the trial court that forensic DNA typing has gained general acceptance in the scientific community, we hold that admissibility of specific test results in a particular case hinges on the laboratorys compliance with appropriate standards and controls, and the availability of their testing data and results.[44] In 1993, Daubert v. Merrell Dow Pharmaceuticals, Inc.[45] further modified the Frye-Schwartz standard. Daubert was a product liability case where both the trial and appellate courts denied the admissibility of an experts testimony because it failed to meet the Frye standard of general acceptance. The United States Supreme Court ruled that in federal trials, the Federal Rules of Evidence have superseded the Frye standard. Rule 401 defines relevant evidence, while Rule 402 provides the foundation for admissibility of evidence. Thus: Rule 401. Relevant evidence is defined as that which has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Rule 402. All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. Rule 702 of the Federal Rules of Evidence governing expert testimony provides: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Vallejo discussed the probative value, not admissibility, of DNA evidence. By 2002, there was no longer any question on the validity of the use of DNA analysis as evidence. The Court moved from the issue of according official recognition to DNA analysis as evidence to the issue of observance of procedures in conducting DNA analysis.
In 2004, there were two other cases that had a significant impact on jurisprudence on DNA testing: People v. Yatar[38] and In

re: The Writ of Habeas Corpus for Reynaldo de Villa.[39] In Yatar, a match existed between the DNA profile of the

semen found in the victim and the DNA profile of the blood sample given by appellant in open court. The Court, following Vallejos footsteps, affirmed the conviction of appellant because the physical evidence, corroborated by circumstantial evidence, showed appellant guilty of rape with homicide. In De Villa, the convict-petitioner presented DNA test results to prove that he is not the father of the child conceived at the time of commission of the rape. The Court ruled that a difference between the DNA profile of the convict-petitioner and the DNA profile of the victims child does not preclude the convict-petitioners commission of rape. In the present case, the various pleadings filed by petitioner and respondent refer to two United States cases to support their respective positions on the admissibility of DNA analysis as evidence: Frye v. U.S.[40] and Daubert v. Merrell Dow Pharmaceuticals.[41] In Frye v. U.S., the trial court convicted Frye of murder. Frye appealed his conviction to the Supreme Court of the District of Columbia. During trial, Fryes counsel offered an expert witness to testify on the result of a systolic blood pressure deception test[42] made on defendant. The state Supreme Court affirmed Fryes conviction and ruled that the systolic blood pressure deception test has not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made. The Frye standard of general acceptance states as follows: Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. In 1989, State v. Schwartz[43] modified the Frye standard. Schwartz was charged with stabbing and murder. Bloodstained articles and blood samples of the accused and the victim were submitted for DNA testing to a government facility and a private facility. The prosecution introduced the private testing facilitys results over Schwartzs objection. One of the issues brought before the state

Daubert cautions that departure from the Frye standard of general acceptance does not mean that the Federal Rules do not place limits on the admissibility of scientific evidence. Rather, the judge must ensure that the testimonys reasoning or method is scientifically valid and is relevant to the issue. Admissibility would depend on factors such as (1) whether the theory or technique can be or has been tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; (4) the existence and maintenance of standards controlling the techniques operation; and (5) whether the theory or technique is generally accepted in the scientific community.
Another product liability case, Kumho Tires Co. v. Carmichael,[46] further modified the Daubert standard. This led to the amendment of Rule 702 in 2000 and which now reads as follows: If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. We now determine the applicability in this jurisdiction of these American cases. Obviously, neither the Frye-Schwartz standard nor the Daubert-Kumho standard is controlling in the Philippines.[47] At best, American jurisprudence merely has a persuasive effect on our decisions. Here, evidence is admissible when it is relevant to the fact in issue and is not otherwise excluded by statute or the Rules of Court.[48] Evidence is relevant when it has such a relation to the fact in issue as to induce belief in its existence or non-existence.[49] Section 49 of Rule 130, which governs the admissibility of expert testimony, provides as follows:

The opinion of a witness on a matter requiring special knowledge, skill, experience or training which he is shown to possess may be received in evidence. This Rule does not pose any legal obstacle to the admissibility of DNA analysis as evidence. Indeed, even evidence on collateral matters is allowed when it tends in any reasonable degree to establish the probability or improbability of the fact in issue.[50] Indeed, it would have been convenient to merely refer petitioner to our decisions in Tijing, Vallejo and Yatar to illustrate that DNA analysis is admissible as evidence. In our jurisdiction, the restrictive tests for admissibility established by Frye-Schwartz and DaubertKumho go into the weight of the evidence.

Self-Incrimination

Section 17, Article 3 of the 1987 Constitution provides that no person shall be compelled to be a witness against himself. Petitioner asserts that obtaining samples from him for DNA testing violates his right against self-incrimination. Petitioner ignores our earlier pronouncements that the privilege is applicable only to testimonial evidence. Again, we quote relevant portions of the trial courts 3 February 2000 Order with approval: Obtaining DNA samples from an accused in a criminal case or from the respondent in a paternity case, contrary to the belief of respondent in this action, will not violate the right against self-incrimination. This privilege applies only to evidence that is communicative in essence taken under duress (People vs. Olvis, 154 SCRA 513, 1987). The Supreme Court has ruled that the right against self-incrimination is just a prohibition on the use of physical or moral compulsion to extort communication (testimonial evidence) from a defendant, not an exclusion of evidence taken from his body when it may be material. As such, a defendant can be required to submit to a test to extract virus from his body (as cited in People vs. Olvis, Supra); the substance emitting from the body of the accused was received as evidence for acts of lasciviousness (US vs. Tan Teng, 23 Phil. 145); morphine forced out of the mouth was received as proof (US vs. Ong Siu Hong, 36 Phil. 735); an order by the judge for the witness to put on pair of pants for size was allowed (People vs. Otadora, 86 Phil. 244); and the court can compel a woman accused of adultery to submit for pregnancy test (Villaflor vs. Summers, 41 Phil. 62), since the gist of the privilege is the restriction on testimonial

Probative Value of DNA Analysis as Evidence

Despite our relatively liberal rules on admissibility, trial courts should be cautious in giving credence to DNA analysis as evidence. We reiterate our statement in Vallejo: In assessing the probative value of DNA evidence, therefore, courts should consider, among other things, the following data: 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.[51] We also repeat the trial courts explanation of DNA analysis used in paternity cases: In [a] paternity test, the forensic scientist looks at a number of these variable regions in an individual to produce a DNA profile. Comparing next the DNA profiles of the mother and child, it is possible to determine which half of the childs DNA was inherited from the mother. The other half must have been inherited from the biological father. The alleged fathers profile is then examined to ascertain whether he has the DNA types in his profile, which match the paternal types in the child. If the mans DNA types do not match that of the child, the man is excluded as the father. If the DNA types match, then he is not excluded as the father.[52] It is not enough to state that the childs DNA profile matches that of the putative father. A complete match between the DNA profile of the child and the DNA profile of the putative father does not necessarily establish paternity. For this reason, following the highest standard adopted in an American jurisdiction,[53] trial courts should require at least 99.9% as a minimum value of the Probability of Paterni ty (W) prior to a paternity inclusion. W is a numerical estimate for the likelihood of paternity of a putative father compared to the probability of a random match of two unrelated individuals. An appropriate reference population database, such as the Philippine population database, is required to compute for W. Due to the probabilistic nature of paternity inclusions, W will never equal to 100%. However, the accuracy of W estimates is higher when the putative father, mother and child are subjected to DNA analysis compared to those conducted between the putative father and child alone.[54] DNA analysis that excludes the putative father from paternity should be conclusive proof of non-paternity. If the value of W is less than 99.9%, the results of the DNA analysis should be considered as corroborative evidence. If the value of W is 99.9% or higher, then there is refutable presumption of paternity.[55] This refutable presumption of paternity should be subjected to the Vallejo standards.

compulsion.[56]

The policy of the Family Code to liberalize the rule on the investigation of the paternity and filiation of children, especially of illegitimate children, is without prejudice to the right of the putative parent to claim his or her own defenses.[57] Where the evidence to aid this investigation is obtainable through the facilities of modern science and technology, such evidence should be considered subject to the limits established by the law, rules, and jurisprudence. WHEREFORE, we DISMISS the petition. We AFFIRM the Decision of the Court of Appeals dated 29 November 2000 in CA-G.R. SP No. 59766. We also AFFIRM the Orders dated 3 February 2000 and 8 June 2000 issued by Branch 48 of the Regional Trial Court of Manila in Civil Case No. SP-98-88759. SO ORDERED.

EN BANC [A.C. No. 5151. October 19, 2004] PEDRO G. TOLENTINO, ROMEO M. LAYGO, SOLOMON M. LUMALANG, SR., MELITON D. EVANGELISTA, SR., and NELSON B. MELGAR, complainants, vs. ATTY. NORBERTO M. MENDOZA, respondent. RESOLUTION AUSTRIA- MARTINEZ , J.: Before us is a complaint filed by Pedro G. Tolentino, Romeo M. Laygo, Solomon M. Lumalang, Sr., Meliton D. Evangelista, Sr., and Nelson B. Melgar against Atty. Norberto M. Mendoza for Grossly Immoral Conduct and Gross Misconduct. Complainants allege in their Affidavit-Complaint that respondent, a former Municipal Trial Court Judge, abandoned his legal wife, Felicitas V. Valderia in favor of his paramour, Marilyn dela Fuente, who is, in turn, married to one Ramon G. Marcos; respondent and Marilyn dela Fuente have been cohabiting openly and publicly as husband and wife in Brgy. Estrella, Naujan, Oriental Mindoro; respondent had fathered two children by his paramour Marilyn dela Fuente; respondent 10

Right Against

and Marilyn dela Fuente declared in the birth certificates of their two daughters that they were married on May 12, 1986, making it appear that their two children are legitimate, while in respondents Certificate of Candidacy filed with the COMELEC during the 1995 elections, respondent declared that his wife is Felicitas V. Valderia; in respondents certificate of candidacy for the 1998 elections, he declared his civil status as separated; such declarations in the birth certificates of his children and in his certificate of candidacy are acts constituting falsification of public documents; and respondents acts betray his lack of good moral character and constitute grounds for his removal as a member of the bar. Respondent filed his Comment wherein he states that complainants, who are his political opponents in Naujan, Oriental Mindoro, are merely filing this case to exact revenge on him for his filing of criminal charges against them; complainants illegally procured copies of the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza, in violation of Rule 24, Administrative Order No. 1, series of 1993, thus, such documents are inadmissible in evidence; respondent did not participate in the preparation and submission with the local civil registry of subject birth certificates; respondent never declared that he had two wives, as he has always declared that he is separated in fact from his wife, Felicitas V. Valderia; and complainants have used this issue against him during elections and yet, the people of Naujan, Oriental Mindoro still elected him as Mayor, hence, respondent has not offended the publics sense of morality. The administrative case was referred to the Integrated Bar of the Philippines (hereinafter IBP) for investigation, report and recommendation. Thereafter, the Commission on Bar Discipline of the IBP conducted hearings. Witnesses for complainants, Nelson B. Melgar and Romeo M. Laygo, submitted their affidavits as their direct testimony and were subjected to cross-examination by respondents counsel. Witness Nelson B. Melgar declares in his affidavit as follows: He knows respondent for they both reside in Naujan, Oriental Mindoro. Respondent is known as a practicing lawyer and a former Municipal Trial Court Judge. Respondent has been cohabiting openly and publicly with Marilyn dela Fuente, representing themselves to be husband and wife, and from their cohabitation, they produced two children, namely, Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza. Sometime in 1995, he (witness Melgar) received a letter from a concerned citizen, informing him that respondent was married to Felicitas Valderia of San Rafael, Bulacan, on January 16, 1980, but respondent abandoned his wife to cohabit with Marilyn dela Fuente. Attached to the letter was a photocopy of a Certification issued by the Civil Register attesting to the marriage between respondent and Felicitas Valderia. He also received information from concerned citizens that Marilyn dela Fuente is also legally married to one Ramon G. Marcos, as evidenced by a Certification from the Office of the Civil Register. Respondent stated in his Certificate of Candidacy filed with the COMELEC in 1995 that he is still legally married to Felicitas Valderia. In respondents Certificate of Candidacy filed with the COMELEC in 1998, he declared his civil status as separated. Respondent has represented to all that he is married to Marilyn dela Fuente. In the Naujanews, a local newspaper where respondent holds the position of Chairman of the Board of the Editorial Staff, respondent was reported by said newspaper as husband to Marilyn dela Fuente and the father of Mara Khrisna Charmina and Myrra Khrisna Normina. On cross-examination, witness Melgar testified as follows: He was the former mayor of Naujan and he and respondent belong to warring political parties. It was not respondent who told him about the alleged immoral conduct subject of the present case. Although he received the letter of a concerned citizen regarding the immoral conduct of respondent as far back as 1995, he did not immediately file a case for disbarment against respondent. It was only after respondent filed a criminal case for falsification against him that he decided to file an administrative case against respondent.[1] On re-direct examination, witness Melgar testified that there were people who were against the open relationship between

respondent and Marilyn dela Fuente as respondent had been publicly introducing the latter as his wife despite the fact that they are both still legally married to other persons, and so someone unknown to him just handed to their maid copies of the birth certificates of Mara Khrisna Charmina and Myrra Khrisna Normina.[2] The affidavit of Mr. Romeo M. Laygo, which was adopted as his direct testimony, is practically identical to that of witness Melgar. On cross-examination, witness Laygo testified that he was not the one who procured the certified true copies of the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza, as somebody just gave said documents to Nelson Melgar. He was a municipal councilor in 1995 when the letter of a concerned citizen regarding respondents immorality was sent to Melgar, but he did not take any action against respondent at that time.[3] Complainants then formally offered documentary evidence consisting of photocopies which were admitted by respondents counsel to be faithful reproductions of the originals or certified true copies thereof, to wit: a letter of one Luis Bermudez informing Nelson Melgar of respondents immoral acts,[4] the Certification of the Local Civil Registrar of San Rafael, Bulacan, attesting to the celebration of the marriage between respondent and one Felicitas Valderia,[5] the Birth Certificate of Mara Khrisna Charmina dela Fuente Mendoza,[6] the Birth Certificate of Myrra Khrisna Normina dela Fuente Mendoza,[7] the Certificate of Candidacy of respondent dated March 9, 1995,[8] the Certificate of Candidacy of respondent dated March 25, 1998,[9]Certification issued by the Civil Registrar of Naujan, Oriental Mindoro dated October 27, 1998, attesting to the marriage celebrated between Marilyn dela Fuente and Ramon Marcos,[10] and the editorial page of the Naujanews (February-March 1999 issue),[11] wherein it was stated that respondent has two daughters with his wife, Marilyn dela Fuente. Respondent, on the other hand, opted not to present any evidence and merely submitted a memorandum expounding on his arguments that the testimonies of complainants witnesses are mere hearsay, thus, said testimonies and their documentary evidence have no probative weight. On February 27, 2004, the Board of Governors of the IBP passed Resolution No. XVI-2004-123, reading as follows: RESOLVED to ADOPT and APPROVE, as it is hereby ADOPTED and APPROVED, the Report and Recommendation of the Investigating Commissioner of the above-entitled case, herein made part of this Resolution as Annex A; and, finding the recommendation fully supported by the evidence on record and the applicable laws and rules, and considering respondents violation of Rule 1.01 of the Code of Professional Responsibility, Atty. Norberto M. Mendoza is hereby SUSPENDED INDEFINITELY from the practice of law until he submits satisfactory proof that he is no longer cohabiting with a woman who is not his wife and has abandoned such immoral course of conduct. Portions of the report and recommendation of the IBP Commission on Bar Discipline, upon which the above-quoted Resolution was based, read as follows: FINDINGS: The evidence of complainants to support their charge of immorality consists in a) the testimonies of Nelson Melgar and Romeo Laygo given by way of affidavits executed under oath and affirmed before the Commission and b) their documentary evidence consisting of their Exhibits A to H. Respondent filed his comment through counsel and did not formally present or offer any evidence. Respondent opted not to present his evidence anymore because according to him there is none to rebut vis--vis the evidence presented by the private complainants. Respondent instead submitted a memorandum through counsel to 11

argue his position. As can be seen from the comment and memorandum submitted, respondents counsel argues that the complaint is politically motivated since complainants are political rivals of respondent and that the birth certificates Exhibits D and D-1 which were offered to show that respondent sired the children namely Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza out of his cohabitation with Marilyn dela Fuente are inadmissible because they were allegedly secured in violation of Administrative Order No. 1, Series of 1993. The rest of the exhibits are either hearsay or self-serving according to respondent. The witnesses who are also two of the complainants herein, on the other hand, categorically state in their affidavits [Exhibits A and B] particularly in paragraph 2 that Respondent has been cohabiting openly and publicly with Marilyn de la Fuente, representing themselves to be husband and wife. In paragraph 10 of said affidavits the witnesses also categorically state that respondent has even represented to all and sundry that Marilyn de la Fuente is his wife. These categorical statements made under oath by complainants are not hearsay and remain un-rebutted. Respondent chose not to rebut them. Exhibit E, the Certificate of Candidacy executed by respondent shows that respondent is married to one, Felicitas V. Valderia. As shown by Exhibit H, a marriage certificate, Marilyn de la Fuente is married to one, Ramon G. Marcos. Duly certified true copies of said exhibits have been presented by complainants. With respect to Exhibits D and D-1, we believe that they are competent and relevant evidence and admissible in this proceedings. The exclusionary rule which bars admission of illegally obtained evidence applies more appropriately to evidence obtained as a result of illegal searches and seizures. The instant case cannot be analogous to an illegal search or seizure. A person who violates Rule 24 of Administrative Order No. 1 Series of 1993 as cited by respondent risks the penalty of imprisonment or payment of a fine but it does not make the document so issued inadmissible as evidence specially in proceedings like the present case. Exhibits D and D-1 which are duly certified birth certificates are therefore competent evidence to show paternity of said children by respondent in the absence of any evidence to the contrary. By and large the evidence of complainants consisting of the testimonies of witnesses Nelson Melgar and Romeo Laygo, and corroborated by the documentary exhibits will show that indeed respondent has been cohabiting publicly with a certain Marilyn de la Fuente who is not his wife and that out of said cohabitation respondent sired two children. These facts we repeat have not been denied by respondent under oath since he chose to just argue on the basis of the improper motivations and the inadmissibility, hearsay and self-serving nature of the documents presented. Complainants have presented evidence sufficient enough to convince us that indeed respondent has been cohabiting publicly with a person who is not his wife. The evidence taken together will support the fact that respondent is not of good moral character. That respondent chose not to deny under oath the grave and serious allegations made against him is to our mind his undoing and his silence has not helped his position before the Commission. As between the documents and positive statements of complainants, made under oath and the arguments and comments of respondent submitted through his lawyers, which were not verified under oath by respondent himself, we are inclined and so give weight to the evidence of complainants. The direct and forthright testimonies and statements of Nelson Melgar and Romeo Laygo that respondent was openly cohabiting with Marilyn de la Fuente is not hearsay. The witnesses may have admitted that respondent Mendoza did not tell them that a certain Marilyn de la Fuente was his paramour (for why would respondent admit that to complainants) but the witnesses did state clearly in their affidavits under oath that respondent was cohabiting with Marilyn de la Fuente who is not respondents wife. Again their categorical statements taken together with the other documents, are enough to convince us and conclude that respondent is not of good moral character.

Members of the Bar have been repeatedly reminded that possession of good moral character is a continuing condition for membership in the Bar in good standing. The continued possession of good moral character is a requisite condition for remaining in the practice of law [Mortel vs. Aspiras 100 Phil. 586 (1956); Cordova vs. Cordova 179 SCRA 680 (1989); People vs. Tuanda 181 SCRA 682 (1990)]. The moral delinquency that affects the fitness of a member of the bar to continue as such includes conduct that outrages the generally accepted moral standards of the community, conduct for instance, which makes mockery of the inviolable social institution of marriage [Mijares vs. Villaluz 274 SCRA 1 (1997)]. In the instant case respondent has disregarded and made a mockery of the fundamental institution of marriage. Respondent in fact even so stated in Exhibit F that he is separated from his wife. This fact and statement without any further explanation from respondent only contributes to the blot in his moral character which good moral character we repeat is a continuing condition for a member to remain in good standing. Under Rule 1.01 of the Code of Professional Responsibility, a lawyer shall not engage in unlawful, dishonest, immoral or deceitful conduct. Respondent has violated this rule against engaging in immoral conduct. We agree, as cited by the respondent, with the pronouncement made in Santos vs. Dischoso, 84 SCRA 622 (1978) that courts should not be used by private persons particularly disgruntled opponents to vent their rancor on members of the Bar through unjust and unfounded accusations. However, in the instant case the charges can hardly be considered as unfounded or unjust based on the evidence presented. The evidence presented shows that respondent no longer possess (sic) that good moral character necessary as a condition for him to remain a member of the Bar in good standing. He is therefore not entitled to continue to engage in the practice of law. We find such report and recommendation of the IBP to be fully supported by the pleadings and evidence on record, and, hence, approve and adopt the same. The evidence presented by complainants reach that quantum of evidence required in administrative proceedings which is only substantial evidence, or that amount of relevant evidence that a reasonable mind might accept as adequate to support a conviction.[12] Witness Melgars testimony that respondent had been publicly introducing Marilyn dela Fuente as his wife is corroborated by the contents of an article in the Naujanews, introducing respondent as one of Naujans public servants, and stating therein that respondent has been blessed with two beautiful children with his wife, Marilyn dela Fuente.[13] It should be noted that said publication is under the control of respondent, he being the Chairman of the Board thereof. Thus, it could be reasonably concluded that if he contested the truth of the contents of subject article in the Naujanews, or if he did not wish to publicly present Marilyn dela Fuente as his wife, he could have easily ordered that the damning portions of said article to be edited out. With regard to respondents argument that the credibility of witnesses for the complainants is tainted by the fact that they are motivated by revenge for respondents filing of criminal cases against them, we opine that even if witnesses Melgar and Laygo are so motivated, the credibility of their testimonies cannot be discounted as they are fully supported and corroborated by documentary evidence which speak for themselves. The birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza born on June 16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn Dela Fuente; and the Certification from the Office of the Local Civil Registrar of Bulacan attesting to the existence in its records of an entry of a marriage between respondent and one Felicitas Valderia celebrated on January 16, 1980, arepublic documents and are prima facie evidence of the facts contained therein, as provided for under Article 410[14] of the Civil Code of the Philippines. Respondent mistakenly argues that the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina 12

dela Fuente Mendoza born on June 16, 1988 and May 22, 1990, respectively, to Norberto M. Mendoza and Marilyn Dela Fuente, are inadmissible in evidence for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993, which provides as follows: Rule 24. Non-Disclosure of Birth Records. (1) The records of a persons birth shall be kept strictly confidential and no information relating thereto shall be issued except on the request of any of the following: a. the concerned person himself, or any person authorized by him; b. the court or proper public official whenever absolutely necessary in administrative, judicial or other official proceedings to determine the identity of the childs parents or other circumstances surrounding his birth; and c. in case of the persons death, the nearest of kin. (2) Any person violating the prohibition shall suffer the penalty of imprisonment of at least two months or a fine in an amount not exceeding five hundred pesos, or both in the discretion of the court. (Article 7, P.D. 603) Section 3, Rule 128 of the Revised Rules on Evidence provides that evidence is admissible when it is relevant to the issue and is not excluded by the law or these rules. There could be no dispute that the subject birth certificates are relevant to the issue. The only question, therefore, is whether the law or the rules provide for the inadmissibility of said birth certificates allegedly for having been obtained in violation of Rule 24, Administrative Order No. 1, series of 1993. Note that Rule 24, Administrative Order No. 1, series of 1993 only provides for sanctions against persons violating the rule on confidentiality of birth records, but nowhere does it state that procurement of birth records in violation of said rule would render said records inadmissible in evidence. On the other hand, the Revised Rules of Evidence only provides for the exclusion of evidence if it is obtained as a result of illegal searches and seizures. It should be emphasized, however, that said rule against unreasonable searches and seizures is meant only to protect a person from interference by the government or the state.[15] In People vs. Hipol,[16] we explained that: The Constitutional proscription enshrined in the Bill of Rights does not concern itself with the relation between a private individual and another individual. It governs the relationship between the individual and the State and its agents. The Bill of Rights only tempers governmental power and protects the individual against any aggression and unwarranted interference by any department of government and its agencies. Accordingly, it cannot be extended to the acts complained of in this case. The alleged warrantless search made by Roque, a co-employee of appellant at the treasurers office, can hardly fall within the ambit of the constitutional proscription on unwarranted searches and seizures. Consequently, in this case where complainants, as private individuals, obtained the subject birth records as evidence against respondent, the protection against unreasonable searches and seizures does not apply. Since both Rule 24, Administrative Order No. 1, series of 1993 and the Revised Rules on Evidence do not provide for the exclusion from evidence of the birth certificates in question, said public documents are, therefore, admissible and should be properly taken into consideration in the resolution of this administrative case against respondent.

Verily, the facts stated in the birth certificates of Mara Khrisna Charmina dela Fuente Mendoza and Myrra Khrisna Normina dela Fuente Mendoza and respondents Certificate of Candidacy dated March 9, 1995 wherein respondent himself declared he was married to Felicitas Valderia, were never denied nor rebutted by respondent. Hence, said public documents sufficiently prove that he fathered two children by Marilyn dela Fuente despite the fact that he was still legally married to Felicitas Valderia at that time. thus: In Bar Matter No. 1154,[17] good moral character was defined

. . . good moral character is what a person really is, as distinguished from good reputation or from the opinion generally entertained of him, the estimate in which he is held by the public in the place where he is known. Moral character is not a subjective term but one which corresponds to objective reality. The standard of personal and professional integrity is not satisfied by such conduct as it merely enables a person to escape the penalty of criminal law. In Zaguirre vs. Castillo,[18] we reiterated the definition of immoral conduct, to wit: . . . that conduct which is so willful, flagrant, or shameless as to show indifference to the opinion of good and respectable members of the community. Furthermore, such conduct must not only be immoral, but grossly immoral. That is, it must be so corrupt as to constitute a criminal act or so unprincipled as to be reprehensible to a high degree or committed under such scandalous or revolting circumstances as to shock the common sense of decency. In the above-quoted case, we pointed out that a member of the Bar and officer of the court is not only required to refrain from adulterous relationships or the keeping of mistresses but must also behave himself as to avoid scandalizing the public by creating the belief that he is flouting those moral standards and, thus, ruled that siring a child with a woman other than his wife is a conduct way below the standards of morality required of every lawyer.[19] We must rule in the same wise in this case before us. The fact that respondent continues to publicly and openly cohabit with a woman who is not his legal wife, thus, siring children by her, shows his lack of good moral character. Respondent should keep in mind that the requirement of good moral character is not only a condition precedent to admission to the Philippine Bar but is also a continuing requirement to maintain ones good standing in the legal profession.[20] In Aldovino vs. Pujalte, Jr.,[21] we emphasized that: This Court has been exacting in its demand for integrity and good moral character of members of the Bar. They are expected at all times to uphold the integrity and dignity of the legal profession and refrain from any act or omission which might lessen the trust and confidence reposed by the public in the fidelity, honesty, and integrity of the legal profession. Membership in the legal profession is a privilege. And whenever it is made to appear that an attorney is no longer worthy of the trust and confidence of the public, it becomes not only the right but also the duty of this Court, which made him one of its officers and gave him the privilege of ministering within its Bar, to withdraw the privilege. WHEREFORE, respondent Atty. Norberto M. Mendoza is hereby found GUILTY of immorality, in violation of Rule 1.01 of the Code of Professional Responsibility. He is SUSPENDED INDEFINITELY from the practice of law until he submits satisfactory proof that he has abandoned his immoral course of conduct. Let a copy of this resolution be served personally on respondent at his last known address and entered in his record as attorney. Let the IBP, the Bar Confidant, and the Court Administrator be furnished also a copy of this resolution for their information and guidance as well as for circularization to all courts in the country.

13

SO ORDERED.

SPECIAL THIRD DIVISION ERNESTO M. FULLERO, Petitioner, G.R. NO. 170583 Present:

In 1977, petitioner was employed as a telegraph operator at the Bureau of Telecommunications Office in Iriga City (BTO, Iriga City). In 1982, he became the Acting Chief Operator of the same office until 1994.[6] A Personal Data Sheet (PDS) [Civil Service Form 212] dated 8 January 1988, purportedly accomplished and signed by petitioner, states that he passed the Civil Engineering Board Examination given on 30-31 May 1985 in Manila with a rating of 75.8%.[7] It appears that he submitted the PDS to the Bureau of Telecommunications Regional Office, Legazpi City (BTO, Legazpi City).[8] A letter dated 7 March 1988 and signed by petitioner shows that he applied for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor with the Regional Director of the Civil Service Commission (CSC), Region 5, LegazpiCity.[9] Upon inquiry made by Florenda B. Magistrado (Magistrado), a subordinate of petitioner in the BTO, Iriga City, with the Professional Regulation Commission (PRC), it was verified that petitioner never passed the board examination for civil engineering and that petitioners name does not appear in the book of registration for civil engineers.[10] Petitioner denied executing and submitting the subject PDS containing the statement that he passed the 30-31 May 1985 board examination for civil engineering. He likewise disowned the signature and thumbmark appearing therein. He claimed that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature.[11] He added that the letters contained in the PDS he accomplished and submitted were typewritten in capital letters since his typewriter does not have small letters. As such, the subject PDS could not be his because it had both small and capital typewritten letters. Moreover, petitioner claimed that Magistrado had an ill motive in filing the instant case against him because he issued a memorandum against her for misbehavior in the BTO, Iriga City.[12] He further argued that the RTC had no jurisdiction to try him there being no evidence that the alleged falsification took place in Legazpi City.[13] After trial, the Legazpi City RTC rendered a Decision dated 9 October 2003 finding petitioner guilty of the crime of falsification. Thus: WHEREFORE, premises considered, the accused Ernesto M. Fullero is hereby found guilty beyond reasonable doubt of the crime ofFalsification defined and penalized under Art. 171 (4) of the Revised Penal Code, and hereby sentences him to suffer the penalty of imprisonment of six (6) years of prision correccional maximum to ten (10) years of prision mayor medium as the maximum and to pay a fine of three thousand P3,000.00 Pesos. Costs against the accused.[14] Petitioner appealed to the Court of Appeals. On 19 October 2005, the appellate court promulgated its Decision affirming in toto the assailed Legazpi City RTC Decision. The appellate court decreed: In sum, the Court finds that the prosecution has successfully established all the elements of the offense of falsification of a public document and that the trial court correctly rendered a judgment of conviction against appellant. WHEREFORE, the appeal at bench is DISMISSED for lack of merit and the appealed 09 October 2003 decision is AFFIRMED.[15]

-versus

Promulgated: September 2007

12,

PEOPLE OF THEPHILIPPINES, Respondent. x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION

CHICO-NAZARIO, J.: In this Petition for Review on Certiorari under Rule 45 of the Revised Rules of Court,[1] petitioner Ernesto M. Fullero seeks to set aside the Decision[2] dated 19 October 2005 of the Court of Appeals in CA-G.R. CR. No. 28072, affirming in toto the Decision[3] dated 9 October 2003 of the Legazpi City Regional Trial Court (RTC), Branch 6, in Criminal Case No. 7712, finding petitioner guilty of falsification of public document as defined and penalized in paragraph 4, Article 171 of the Revised Penal Code. In an Amended Information[4] dated 14 October 1997, petitioner was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, allegedly committed as follows: That sometime in 1988, in the City of Legazpi, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with intent to prejudice and defraud, being then the Acting Chief Operator of Iriga City Telecommunications Office, while acting in said capacity and taking advantage of his official function, did then and there willfully, unlawfully and feloniously falsify and/or caused to be falsified a genuine public document, that is when he prepared his CSC 212 (Personal Data Sheet) for submission to Bureau of Telecommunication Regional Office No. 5, Legazpi City, he made it appear that he passed the Civil Engineering Board Examinations given by Professional Regulation Commission on May 30 and 31, 1985 with a rating of 75.8%; however, upon verification issued by PRC, said accused took the examination in May 1984 and another one [in] May, 1985 with general ratings of 56.75% and 56.10% respectively. When arraigned on 5 January 1998, petitioner, with the assistance of counsel de parte, pleaded Not Guilty to the charge.[5] Thereafter, trial on the merits ensued. Culled from the records are the following facts:

14

On 21 November 2005, petitioner lodged the instant petition before us citing as errors the following: I. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID LOWER COURT CONVICTED THE ACCUSED IN THE ABSENCE OF SUFFICIENT EVIDENCE I.E., PROOF TO SHOW THAT THE ACCUSED ACTUALLY PERFORMED THE ACT OF FALSIFICATION HE IS ACCUSED OF; II. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT, EVEN ON THE ASSUMPTION THAT ACCUSED FILLED UP THE PERSONAL DATA SHEET (PDS) INCLUDING THE STATEMENT THAT HE IS A LICENSED ENGINEER, ACCUSED WAS UNDER NO OBLIGATION TO STATE SAID DATA AND NO CRIMINAL INTENT WAS SHOWN. III. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT SAID RTC ADMITTED EVIDENCES NOT PROPERLY IDENTIFIED AND THEREAFTER CONSIDERED THE SAME IN DETERMINING THE ALLEGED GUILT OF THE ACCUSED; IV. WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN SUSTAINING THE JUDGMENT OF THE REGIONAL TRIAL COURT DESPITE THE FACT THAT THE LOWER COURT HAD NO JURISDICTION BECAUSE THE VENUE SHOULD HAVE BEEN IN THEREGIONAL TRIAL COURT OF IRIGA CITY, WHERE THE ALLEGED PERSONAL DATA SHEET WAS ACCOMPLISHED NOT IN THE RTC OFLEGAZPI CITY.

therein if she can see petitioners PDS. Upon being shown petitioners PDS, she observed that, under Item No. 18 thereof, petitioner appears to be a licensed civil engineer having passed the board examination for civil engineering given on 30-31 May 1985. Unconvinced of the veracity of petitioners statement in the PDS that he is a licensed civil engineer, she sought the advice of Atty. Baranda. Atty. Baranda then proceeded to the main office of the PRC in Manila to check the records of petitioner. Subsequently, Atty. Baranda obtained a certification from the PRC attesting that petitioner never passed the board examination for civil engineering. Atty. Baranda showed the said certification to her. Thereafter, she instituted the instant case against petitioner.[17] Atayza, Regional Director of the PRC in Legazpi City, testified that petitioner is not registered as a board passer for the civil engineering examination given on 30-31 May 1985.[18] Brizo, Human Resource Management Officer and Acting Records Officer of the BTO, Legazpi City, testified that his duty as acting records officer was to safeguard the records and files of the BTO, Iriga City, and BTO, Legazpi City. He said he personally knows the petitioner and is familiar with the latters signature because he regularly received petitioners daily time records and other documents bearing petitioners signature. He confirmed that the signature appearing in petitioners PDS was the signature of petitioner.[19] Francisco was the Officer-In-Charge of the Records Section of the PRC, Manila. She declared that petitioners name was included in the master list of examinees in the May 1984 civil engineering licensure examination where petitioner obtained a failing grade of 56.75%. She affirmed that petitioners name also appears in the list of examinees for the 30-31 May 1985 and May 1990 civil engineering licensure examinations where he got failing marks.[20] Avenir was the Special Investigator III in the Legal Affairs Division of the CSC, Regional Office No. 5, Legazpi City. As the duly authorized representative of the Regional Director of the said office, Avenir brought to the court the letter of petitioner applying for the position of either Junior Telecommunications Engineer or Telecommunications Traffic Supervisor, and a certification submitted by the petitioner stating that the latter is a licensed civil engineer. Avenir stated that the letter and the certification were taken from the records of their office and that these documents were being kept as part of the records of an administrative case of petitioner with the said office.[21] The prosecution also presented documentary evidence to bolster the foregoing testimonies of the prosecution witnesses, to wit: (1) a certification issued by Jose A. Arriola, Director II, PRC, Manila, attesting that petitioners name is not registered in the book of registry for licensed civil engineers; (2) certifications issued by Francisco affirming that petitioner failed in the 30-31 May 1985 board examination for civil engineering;[22] (3) the PDS where petitioner stated that he passed the 30-31 May 1985 board examination for civil engineering with a rating of 75.8% and which was signed by him;[23] (4) certifications issued by Francisco attesting that petitioner failed the May 1990 board examination for civil engineering;[24] (5) transcript of stenographic notes in the perjury case filed by petitioner against Magistrado which states that, during the trial thereof, petitioner affirmed before the court hearing the case that he is a licensed civil engineer;[25] (6) a letter signed and submitted by petitioner to the Regional Director of the CSC, Regional Office No. 5, Legazpi City, claiming to be a licensed civil engineer and applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor;[26] (7) an Order dated 20 December 2001 of the CSC, Regional Office No. 5, finding petitioner administratively liable for conduct prejudicial to the best interest of the service and imposing upon him a penalty of six months suspension for falsifying his PDS which is also the subject matter of the instant case;[27] (8) a certification submitted by the petitioner to the CSC, Regional Office No. 5, Legazpi City, showing that he is a licensed civil engineer;[28] (9) the daily time records of Magistrado signed by petitioner as the formers superior;[29] and (10) other documents bearing the signature of petitioner in blue ballpen.[30] 15

Apropos the first issue, petitioner maintained that none of the prosecution witnesses actually saw him accomplish and sign the PDS; that the prosecution failed to establish that he took advantage of his position in falsifying the PDS; that a person need not be an Acting Chief Operator to be able to falsify a PDS; that he never became the custodian of the PDS nor did he have any special access to it by reason of his office; and that the identity of the person who falsified the PDS has not been established by the prosecution.[16]
In establishing its charge of falsification against petitioner, the prosecution presented the following witnesses, namely: Magistrado, Joaquin C. Atayza (Atayza), Romeo Brizo (Brizo), Emma Francisco (Francisco) and Edith C. Avenir (Avenir). Magistrado, a subordinate of petitioner at the BTO, Iriga City, testified that prior to the filing of the instant case against petitioner, she sued the petitioner for unjust vexation as the latter kissed her on one occasion. While the case for unjust vexation was pending, her lawyer, Atty. Mariano Baranda, Jr. (Atty. Baranda), asked her if petitioner was indeed a licensed civil engineer since some persons simply referred to petitioner as Mr. Fullero whereas in the BTO, Iriga City, petitioner was known as Engineer Fullero. Suspicious of the true status of petitioner, she went to the Records Office of the BTO, Legazpi City, and requested

On the other hand, the defense presented petitioner as its sole witness. No documentary evidence was proffered. Petitioner interposed denials and alibi to support his contentions. Petitioner denied that he executed and submitted the subject PDS containing the statement that he passed the board examinations for civil engineering. He likewise disowned the signature and thumbmarkappearing therein. He averred that the PDS he accomplished and submitted was typewritten in capital letters since his typewriter does not have small letters; thus, the subject PDS could not be his since the letters were typewritten in small and capital letters; that the stroke of the signature appearing in the PDS differs from the stroke of his genuine signature; that Magistrado had an ill motive in filing the instant case against him since he issued a memorandum against her for the latters misbehavior in the BTO, Iriga City; that he is not a licensed civil engineer; and that he accomplished a different PDS in the BTO, Iriga City. Petitioner testified that he cannot recall the exact date when he issued the alleged memorandum against Magistrado[31] and when during the trial of his perjury case against Magistrado, he claimed that he is a licensed civil engineer.[32] He cannot also remember if he submitted a letter to the CSC, Regional Office No. 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor[33] and the fact that he submitted therein a certification that he is a licensed civil engineer.[34] The initial query to be resolved is whose evidence between the prosecution and defense is credible. Case law dictates that an accused can be convicted even if no eyewitness is available as long as sufficient circumstantial evidence had been presented by the prosecution.[35] Circumstantial evidence is sufficient if: (a) (b) (c) There circumstance; is more than one

the writing, as well as the stroke and the last rounding loop of the signature in the PDS, does not differ from petitioners signatures in Magistrados daily time records and in petitioners application letter.[39] They noted that petitioners signatures in the said documents are strikingly similar, such that through the naked eye alone, it is patent that the signatures therein were written by one and the same person. The observation of the Court of Appeals is worth noting, viz: Appellants allegation that he did not execute the subject PDS is unavailing. First, the informations entered in the PDS, such as his accurate personal data and precise employment history, are matters which only the accused could have known. Second, a visual analysis of appellants signatures in the Certificate of Arraignment and Notice of Hearing, vis-a-vis his signature in the PDS would show no significant disparity, leading to the conclusion that appellant himself prepared the PDS and affixed his signature therein. Third, the signature of appellant in the PDS and in the Daily Time Records (Exhibits J to Q) of prosecution witness Florenda Magistrado, were glaringly identical. x x x.[40] The rule is that the findings of fact of the trial court, its calibration of the testimonies of the witnesses and its assessment of the probative weight thereof, as well as its conclusions anchored on said findings, are accorded high respect if not conclusive effect.[41] This is more true if such findings were affirmed by the appellate court. When the trial courts findings have been affirmed by the appellate court, said findings are generally binding upon this Court.[42] In absolute disparity, the evidence for the defense is comprised of denials. Petitioner denied having accomplished and signed the PDS. He tried to impart that someone else had filled it up. However, aside from this self-serving and negative claim, he did not adduce any convincing proof to effectively refute the evidence for the prosecution. It is a hornbook doctrine that as between bare denials and positive testimony on affirmative matters, the latter is accorded greater evidentiary weight.[43] The subsequent matter to be determined is whether the elements of falsification for which petitioner is charged were proven beyond reasonable doubt. provides: Article 171, paragraph (4) of the Revised Penal Code, ART. 171. Falsification by public officer, employee or notary or ecclesiastic minister. The penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon any public officer, employee, or notary who, taking advantage of his official position, shall falsify a document by committing any of the following acts: xxxx 4. Making untruthful statements in a narration of facts. The elements of falsification in the above provision are as follows: a) the offender makes in a public document untruthful statements in a narration of facts;

The facts from which the inferences are derived are proven; and The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.[36]

Although none of the prosecution witnesses actually saw the petitioner falsifying the PDS, they, nonetheless, testified that that they are very familiar with the petitioners handwriting and signature. Magistrado testified that, being a subordinate of petitioner, she is very familiar with petitioners signature and actually witnessed petitioner affixing his signature on her daily time records for September 1987 to May 1988.[37] Brizo testified that he is also familiar with petitioners signature because he personally knows petitioner and that he regularly received petitioners daily time records and other documents bearing petitioners signature.[38] Both Magistrado and Brizo opined that the signature in the PDS belongs to petitioner. The foregoing testimonies are consistent with the documentary evidence submitted by the prosecution. The RTC and the Court of Appeals found the testimonies of Magistrado and Brizo as trustworthy and believable. More significant are the documentary evidence consisting of petitioners signature in certain authentic instruments which are apparently similar to the signature in the PDS. The RTC and the Court of Appeals have compared petitioners signatures in Magistrados daily time records and petitioners signature in his application letter to the CSC, Regional Office No. 5, Legazpi City, with that of petitioners alleged signature in the PDS. They observed that the slant position of

16

b) c)

he has a legal obligation to disclose the truth of the facts narrated by him; and the facts narrated by him are absolutely false.[44]

that petitioner took advantage of his position as Acting Chief Operator of BTO, Iriga City when he falsified his PDS. Anent the second issue, petitioner posited that being a licensed civil engineer is not a qualification for him to hold office and such is not a requirement for his promotion; that the false statement caused no prejudice to any private person as he did not have any competitor in his position nor was the government damaged by such false statement; that the false statement would not in any way redound to his benefit and, as such, no criminal intent could have impelled him to make such false claim; and that no evidence was produced showing that he had intent to cause injury. The law is clear that wrongful intent on the part of the accused to injure a third person is not an essential element of the crime of falsification of public document.[53] It is jurisprudentially settled that in the falsification of public or official documents, whether by public officers or private persons, it is not necessary that there be present the idea of gain or the intent to injure a third person for the reason that, in contradistinction to private documents, the principal thing punished is the violation of the public faith and the destruction of truth as therein solemnly proclaimed.[54] In falsification of public documents, therefore, the controlling consideration is the public character of a document; and the existence of any prejudice caused to third persons or, at least, the intent to cause such damage becomes immaterial.[55] The fact that the petitioners false statement in the PDS did not redound to his benefit, and that the government or any private individual was not thereby prejudiced, is inconsequential. What is clear and decisive in this case is that petitioner made an entry in his PDS that he passed the 30-31 May 1985 board examination for civil engineering despite his full awareness that such is not true. Regarding the third issue, petitioner contended that the prosecutions documentary evidence, consisting of Exhibits A, C, F, G, H, I, J, K, L, M, N, O, P, Q and R and their sub-markings, are inadmissible in evidence based on the following reasons: (1) Exhibit A, which is the Certification of the PRC dated 17 January 1998, confirming that petitioners name does not appear in the registry books of licensed civil engineers, was not properly identified during the trial. The proper person to identify the certification should have been the signatory therein which was PRC Director II Jose A. Arriola, or in his absence, a person who actually witnessed the execution of the certification. Prosecution witness Atayza, who was not present when the certification was executed, had identified the certification during the trial. Thus, the contents of the certification are mere hearsay; (2) Exhibit C, which is, according to petitioner, a machine copy of the PDS, does not show that it was the petitioner who prepared and submitted the PDS to BTO, Legazpi City. There was nothing in the PDS which requires a periodic submission of an updated PDS. Prosecution witness Brizo does not know whether petitioners PDS was personally delivered or mailed. Hence, the identification and subsequent testimonies of the prosecution witnesses on the PDS are mere hearsay; (3) Exhibit F, which is the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado where petitioner allegedly admitted that he is a civil engineer, lacks proper identification as the stenographer or records officer was not presented in court; (4) Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is a machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are merely machine copies and the loss and unavailability of their original were not proven; and (5) Exhibits J, K, L, M, N, O, P, Q and R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are devoid of factual basis. Petitioners signatures in the said exhibits are, with the use of naked eye, not the same as his 17

In addition to the aforecited elements, it must also be proven that the public officer or employee had taken advantage of his official position in making the falsification. In falsification of public document, the offender is considered to have taken advantage of his official position when (1) he has the duty to make or prepare or otherwise to intervene in the preparation of a document; or (2) he has the official custody of the document which he falsifies.[45] All of the foregoing elements of falsification of public documents under paragraph 4, Article 171 of the Revised Penal Code, have been sufficiently established.

First, petitioner was a public officer, being then the Acting Chief Operator of the BTO, Iriga City, when he accomplished and submitted his PDS on 4 January 1988 at the BTO, Legazpi City. It is settled that a PDS is a public document.[46] He stated under Item No. 18 of his PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8%. Thereafter, petitioner submitted his PDS to the BTO, Legazpi City.
accomplishment of the PDS being a requirement under the Civil Service Rules and Regulations in connection with employment in the government, the making of an untruthful statement therein was, therefore, intimately connected with such employment. Hence, the filing of a PDS is required in connection with promotion to a higher position and contenders for promotion have the legal obligation to disclose the truth. Otherwise, enhancing their qualifications by means of false statements will prejudice other qualified aspirants to the same position.[48] Petitioner was legally obliged to disclose in the PDS that he is not a licensed civil engineer since, as evidenced by his application letter, he was applying for positions to be occupied only by licensed civil engineers. Further, petitioner was also legally obliged to make truthful statements in his PDS since he affirmed therein under the penalty of perjury that his answers to the queries are true and

Second, in Inting v. Tanodbayan,[47] we ruled that the

correct to the best of [his] knowledge and belief.[49]

Third, petitioners statement in the PDS that he passed the civil engineering board examination given on 30-31 May 1985 in Manila with a rating of 75.8% is absolutely false. As Officer-inCharge of the Records Section of the PRC, Manila, Francisco declared that petitioner was included in the master list of examinees in the May 1984 civil engineering licensure examination wherein petitioner obtained a failing grade. She affirmed that petitioners name also appears in the list of examinees for the May 1985 and May 1990 civil engineering licensure examinations where petitioner also got failing marks. She also submitted certifications and authentic documents in support of her statements. Further, petitioner admitted that he never passed the board examination for civil engineering.[50] Finally, as a public officer, petitioner is duty-bound to prepare, accomplish and submit his PDS pursuant to the Civil Service Rules and Regulations.[51] Were it not for his position and employment in the government, he could not have accomplished the PDS. In People v. Uy,[52] Santiago Uy, a field agent of the National Bureau of Investigation, was charged with falsification of public document under paragraph 4, Article 171 of the Revised Penal Code, for making false statements in his Personal Information Sheet. We ruled therein: [T]hat the defendant (Santiago Uy) took advantage of his position may be gathered from the fact that he himself filled the information sheet which obviously was to be submitted by each and every officer or employee of the NBI. In the same vein, petitioner also had the responsibility to prepare, accomplish and submit his PDS at the time he made a false statement therein that he is a licensed civil engineer. Hence, it is clear

signature in the PDS. The Legazpi City RTC should have submitted these documents to a handwriting expert for examination instead of relying on the testimony of Magistrado.[56] Section 36, Rule 130 of the Revised Rules on Evidence, states that a witness can testify only to those facts which he knows of or comes from his personal knowledge, that is, which are derived from his perception. A witness, therefore, may not testify as to what he merely learned from others either because he was told, or he 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.[57] This is known as the hearsay rule. The law, however, provides for specific exceptions to the hearsay rule. One of the exceptions is the entries in official records made in the performance of duty by a public officer.[58] In other words, official entries are admissible in evidence regardless of whether the officer or person who made them was presented and testified in court, since these entries are considered prima facie evidence of the facts stated therein. Other recognized reasons for this exception are necessity and trustworthiness. The necessity consists in the inconvenience and difficulty of requiring the officials attendance as a witness to testify to innumerable transactions in the course of his duty. This will also unduly hamper public business. The trustworthiness consists in the presumption of regularity of performance of official duty by a public officer.[59] Exhibit A, or the Certification of the PRC dated 17 January 1998, was signed by Arriola, Director II of the PRC, Manila.[60] AlthoughArriola was not presented in court or did not testify during the trial to verify the said certification, such certification is considered as prima facie evidence of the facts stated therein and is therefore presumed to be truthful, because petitioner did not present any plausible proof to rebut its truthfulness. Exhibit A is therefore admissible in evidence. Section 3, Rule 128 of the Revised Rules on Evidence, provides that an evidence is admissible when it is relevant to the issue and is not excluded by the law or rules. Exhibit C, which according to petitioner is the machine copy of the PDS, is very relevant to the charge of falsification and is not excluded by the law or rules. It was offered precisely to prove that petitioner committed the crime of falsification by making false statements in the PDS. Further, the information specifically accuses petitioner of falsifying such PDS. A scrutiny of Exhibit Cwould show that it is the very PDS which petitioner falsified and not a mere machine copy as alleged by petitioner. Being the original falsified document, it is the best evidence of its contents and is therefore not excluded by the law or rules.[61] Section 2, Rule 132 of the Revised Rules on Evidence, explicitly provides that a transcript of the record of the proceedings made by the official stenographer, stenotypist or recorder and certified as correct by him shall be deemed prima facie a correct statement of such proceedings. Petitioner failed to introduce proof that Exhibit F, or the Transcript of Stenographic Notes dated 17 March 1998 of the perjury case filed by petitioner against Magistrado in which petitioner allegedly admitted that he is a civil engineer, is not what it purports to be. Thus, it is prima facie correct. Moreover, as earlier elucidated, one of the exceptions to the hearsay rule is the entries in official records made in the performance of duty by a public officer. Exhibit F, being an official entry in the courts records, is admissible in evidence and there is no necessity to produce the concerned stenographer as a witness.[62] Section 7, Rule 130 of the Revised Rules on Evidence, provides that 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. Exhibit G, which is the alleged letter of petitioner to the Regional Director of the CSC, Region 5, Legazpi City, applying for the position of either a Junior Telecommunications Engineer or Telecommunications Traffic Supervisor; and Exhibit I, which is the

machine copy of a certification allegedly issued by the PRC attesting that petitioner is a licensed civil engineer and which was allegedly submitted by petitioner to the Regional Director of the CSC, Region 5, Legazpi City, as his credential in applying for the aforesaid positions, are certified true copies of their original documents recorded or kept in the CSC, Regional Office No. 5, Legazpi City[63] and, thus, admissible to prove the contents of their originals. Exhibits J to R, which are the daily time records of Magistrado signed by petitioner and which were offered to compare petitioners alleged signature in the PDS with the said exhibits, are admissible in evidence since they are relevant and material to the charge of falsification against petitioner. The signatures of petitioner in the said exhibits, the authenticity of which were not denied by petitioner, were presented to prove that these signatures were similar to petitioners signature in the PDS where he made the alleged falsification. Well-entrenched is the rule that resort to handwriting experts is not mandatory. Handwriting experts, while probably useful, are not indispensable in examining or comparing handwritings or signatures.[64] This is so since under Section 22, Rule 132 of the Revised Rules on Evidence, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write; or has seen writing purporting to be his upon which the witness has acted or has been charged, and has thus acquired knowledge of the handwriting of such person. Moreover, the opinion of a non-expert witness, for which proper basis is given, may be received in evidence regarding the handwriting or signature of a person with which he has sufficient familiarity.[65] The Legazpi City RTC was, therefore, not obliged to put a handwriting expert on the witness stand and direct the latter to examine petitioners signatures in the foregoing exhibits before ruling on their admissibility. It can, as it did, rely on the testimonies of the prosecution witnesses who are familiar with petitioners handwriting/signature in determining the admissibility of the aforesaid exhibits. It can, by itself, also compare petitioners signature in the PDS with the petitioners signatures in the subject exhibits with or without the aid of an expert witness and thereafter rule on the admissibility of such exhibits based on its own observation. In short, it can exercise independent judgment as regards the admissibility of said exhibits. As to the fourth issue, petitioner argued that since none of the prosecution witnesses testified that they actually saw him fill up the PDS, then there is no evidence showing that the alleged falsification took place in Legazpi City; that when the PDS was allegedly falsified, he was stationed at BTO, Iriga City, and was a resident of Iriga City; that, even assuming without admitting that he filled up the PDS, the same was, in all probability, filled up in Iriga City and, as such, the crime of falsification was consummated therein; that, consequently, the instant case should have been tried in the Iriga City RTC and not in the Legazpi City RTC.[66] There are three important requisites which must be present before a court can acquire jurisdiction over criminal cases. First, the court must have jurisdiction over the offense or the subject matter. Second, the court must have jurisdiction over the territory where the offense was committed. And third, the court must have jurisdiction over the person of the accused.[67] There is no dispute that the Legazpi City RTC has jurisdiction over the offense and over the person of petitioner. It is the territorial jurisdiction of the Legazpi City RTC which the petitioner impugns. The territorial jurisdiction of a court is determined by the facts alleged in the complaint or information as regards the place where the offense charged was committed.[68] It should also be emphasized that where some acts material and essential to the crime and requisite to its consummation occur in one province or city and some in another, the court of either province or city has jurisdiction to try the case, it being understood that the court first taking cognizance of the case will exclude the others.[69] 18

In the case at bar, the information specifically and positively alleges that the falsification was committed in Legazpi City. Moreover, as heretofore discussed, the testimonies and documentary evidence for the prosecution have sufficiently established that petitioner accomplished and thereafter submitted the PDS to the BTO, Legazpi City. The foregoing circumstances clearly placed the locus criminis in Legazpi City and not in Iriga City. We find no reason to disturb the prison term and fine imposed on petitioner by the Legazpi City RTC and the Court of Appeals, as they are in accord with law and jurisprudence. WHEREFORE, the petition is hereby DENIED. The Decision of the Court of Appeals, dated 19 October 2005, in CA-G.R. CR. No. 28072, is hereby AFFIRMED in toto. Costs against petitioner.

of whom was the appellant, were having some drinks.[6] When they saw Ondo, the appellant and his friend offered him a drink of Tanduay.[7] Ondo, declined, saying Bay, I am not drinking now.[8] Thereafter, Ondo left. The appellant was peeved. He rose from his seat and followed Ondo. The appellant then took hold of Ondosright shoulder, took out a stainless knife and stabbed the latter on the breast.[9] The appellant left the scene, walking towards the direction of the lower area of Cagayan de Oro.[10] Jovy Baylin, who was about five meters from the scene of the crime, was stunned, and was unable to do anything.[11]Ondos companions saw the stabbing and immediately flagged down a vehicle. Mortally wounded, Ondo ran towards the vehicle and fell inside it.[12] Ondos companions brought him to the Bethel Baptist Hospital, Inc., inMalaybalay City, where he was pronounced dead on arrival.[13] Dr. Leslie Joan M. Arcadio signed Ondos death certificate and indicated that the cause of death was stab wound, right chest.[14]

SO ORDERED. The Evidence of the Appellant[15]

SECOND DIVISION [G.R. No. 147196. June 4, 2004] PEOPLE OF THE PHILIPPINES, appellee, vs. EDGAR DUMADAG y CAGADAS, appellant. DECISION CALLEJO, SR., J.: Before us on appeal is the Decision[1] of the Regional Trial Court of the City of Malaybalay, Bukidnon, Branch 8, finding appellant Edgar Dumadag yCagadas, guilty beyond reasonable doubt of murder; sentencing him to suffer the penalty of reclusion perpetua, and ordering him to pay the heirs of the victim P50,000 as civil indemnity and P50,000 as moral damages.

The appellant denied the charge. He testified that in the afternoon of June 23, 1999, he was at Vista Villa, Sumilao, Bukidnon,[16] looking for some way to get money. He saw Richard Masicampo, Sr., the owner of a 2.5 hectare riceland in the same sitio and borrowed money from him.[17] The latter agreed, but required the appellant to cut the grass in his riceland the next day. On the aforesaid date, the appellant, along with Richard, cut grass in the ricefield. At around 11:00 a.m., they stopped and had lunch in Richards house.[18] Because it rained the whole afternoon, they were unable to go back to the ricefield. They stayed in the house and had drinks.[19] After consuming five (5) bottles of fighter wine, the appellant fell asleep. At 5:30 p.m., he woke up and went home. He returned the next day to finish the job.[20] The appellant was arrested in his house on July 4, 1999. He denied knowing Ondo and Jovy Baylin.[21]

The Indictment

On November 21, 2000, the trial court rendered judgment, the dispositive portion of which reads: WHEREFORE, judgment is entered (sic) finding accused Edgar Dumadag guilty beyond reasonable doubt of the offense of murder qualified by treachery. Accordingly, he is hereby sentenced to suffer the penalty of reclusion perpetua, and to indemnify the heirs of his victim Fernando Prudente the sum of P50,000.00 and moral damages of P50,000.00.[22]

The appellant was charged with murder in an Information filed before the Regional Trial Court of Malaybalay, the accusatory portion of which is herein quoted: That on or about the 24th day of June 1999, in the afternoon, at Barangay Impalutao, Municipality of Impasugong, Province of Bukidnon, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, with intent to kill by means of treachery, armed with a sharp bladed weapon, did then and there willfully, unlawfully and criminally attack, assault and stab FERNANDO PRUDENTE, inflicting upon the latter a mortal stab wound which caused the instantaneous death of FERNANDO PRUDENTE, to the damage and prejudice of the legal heirs of FERNANDO PRUDENTE in such amount as may be allowed by law[2].

The Present Appeal

On appeal, the appellant asserts that: I

The Evidence of the Prosecution[3]

June 24, 1999 was the feast of St. John. Fernando Ondo Prudente, with his friends, including Marlyn Meliston, agreed to meet at the Gantunganswimming pool in Impalutao, Impasugong, Bukidnon, to celebrate the occasion.[4] At about 5:00 p.m., Ondo and his friends headed back home. By then, there was heavy downpour. They decided to take shelter at the store of a certain Mr. Salvaa. Jovy Baylin, who had just come from the house of his sister, Enecita Abacajin, approximately one hundred (100) kilometers away, was also in the store.[5] Two men, one

THE TRIAL COURT ERRED IN CONVICTING ACCUSED-APPELLANT FOR THE CRIME OF MURDER AND IN DISREGARDING ACCUSEDAPPELLANTS DEFENSE OF ALIBI BECAUSE IN THE WORDS OF THE TRIAL COURT ALIBI IS ONE OF THE WEAKEST DEFENSE AND EASY TO CONCOCT. II ASSUMING FOR THE SAKE OF ARGUMENT THAT ACCUSED IS GUILTY FOR THE DEATH OF FERNANDO PRUDENTE, THE TRIAL COURT ERRED IN CONVICTING HIM OF THE CRIME OF MURDER INSTEAD OF SIMPLE HOMICIDE.[23]

19

The appellant insists that the prosecution failed to prove his guilt for the crime charged beyond reasonable doubt. He asserts that although his defense of alibi is weak, he should be acquitted because the evidence of the prosecution is also weak. The appellant, likewise, contends that, assuming that he is guilty of the crime charged, he can only be convicted of homicide because the prosecution failed to prove beyond reasonable doubt the qualifying circumstance of treachery. He avers that he could not have deliberately and consciously adopted a plan to kill the victim because they never knew each other. Citing our ruling in People vs. Aguiluz,[24] the appellant points out that where the sudden attack is not preconceived and intended as the means, but is merely triggered by the sudden infuriation on the part of the accused because of an act of the victim, or where the meeting is purely accidental, the killing would not be attended by treachery. The Office of the Solicitor General (OSG) avers that the prosecution, through Baylins direct and straightforward testimony, proved that the appellant stabbed the victim to death. The OSG asserts that the appellants defense of denial and alibi are weak and cannot be given probative weight in light of Baylins testimony, and that the admission made by the appellant during the pre-trial that he was at the scene of the crime belied his alibi. The OSG, however, agrees that the appellant is guilty only of homicide because the prosecution failed to prove the qualifying circumstance of treachery. It posits that the altercation between the appellant and the victim that preceded the commission thereof forestalled the attendance of treachery. We agree with the trial court that the appellant stabbed the victim. Time and again, we have consistently ruled that the findings of facts of the trial court, its calibration of the testimonial evidence of the parties, as well as its conclusions on its findings, are accorded high respect if not conclusive effect.[25] This is because of the unique advantage of the trial court to observe, at close range, the conduct, demeanor and deportment of the witnesses as they testify.[26] In this case, the trial court gave credence and probative weight to the testimony of Jovy Baylin. After a careful review of the records of this case, we find no cogent reason to overrule the trial courts findings that the appellant stabbed the victim. As long as it is positive, clear and credible, the testimony of a single prosecution witness on which judgment of conviction is anchored, is sufficient. Corroborative or cumulative evidence is not a prerequisite to the conviction of the accused. Truth is established not by the number of witnesses but by the quality of their testimonies.[27] The trial court found Baylin to be a credible witness. The denial and alibi of appellant cannot prevail over the positive identification and eyewitness account of Baylin.[28] Baylin testified, thus: ASST. PROS. TORIBIO: (continuing) Q: After Edgar Dumadag invited Ondo Prudente to have a drink of Tanduay, what did Ondo Prudente do, if any? A: He declined the offer. the offer

Q: Was Prudente hit? A: Yes.

COURT: (to the witness) Q: What part of his body? A: On his breast.

Q: What did the accused use in stabbing? A: A stainless knife.

ASST. PROS. TORIBIO Q: Now, when this Dumadag followed Ondo Prudente after he declined the offer, did you see already Dumadag carrying with him a knife (sic)? A: No, he was running.

Q: When for (sic) the first time you saw the knife of Dumadag? A: When he held the shoulder (sic).

Q: Where did he get the knife? A: From his side.


[29]

On the other hand, the appellants alibi is weak. It is settled that for the defense of alibi to prosper, the appellant must prove with clear and convincing evidence not only that he was some place else when the crime was committed, but also that it was physically impossible for him to be at the scene of the crime or its immediate vicinity when the crime was committed.[30] To prove his alibi, the appellant testified as follows: Q: Mr. Dumadag, you said that you borrowed money from Richard Masicampo, [Sr.] from where is this Richard Masicampo? A: From our sitio.

Q: Meaning to say at Kibenton? A: No, from our place.

Q: What place? A: Kilabong.

Q: Vista Villa, Sumilao, Bukidnon? A: Yes.

Q: Mr. Dumadag, from Kilabong, Vista Villa going to Impalutao, how many minutes or hours it will (sic) take you when you ride? A: I do not know because the distance is far.

Q: How did Ondo Prudente decline of Dumadag? A:

Q: Can you not estimate thirty (30) minutes or one hour? A: No.

He said, Bay, I am not drinking now, and then he left.

Q: Even two hours? A: I do not know.

Q: After Ondo Prudente left, what happened next, if any? A: Dumadag followed Prudente, held his right shoulder and stabbed him. did

Q: From Vista Villa to Dalirig, how many kilometers? A: Six (6) kilometers, more or less.

Q: Now, how many time[s] this Dumadag stabbed (sic) Ondo Prudente? A: Once.

Q: From Dalirig to Impalutao, how many kilometers? A: I do not know.[31]

20

However, the appellant failed to prove that it was physically impossible for him to be at the scene of the crime, considering his claim that he was only a few kilometers away when the stabbing occurred. Moreover, during the pre-trial conference held on November 4, 1999, the appellant, assisted by his counsel, admitted that he was at the place of the incident at the time of the commission of the crime. The same was reduced into writing, signed by the appellant, approved by the trial court and formed part of the records of the case.[32] Under Section 5 of Republic Act No. 8493, otherwise known as The Speedy Trial Act of 1998, stipulations entered into during the pre-trial which were approved by the Court shall bind the parties, limit the trial to matters not disposed of and control the course of action during the trial, unless modified by the court to prevent manifest injustice.[33]

The trial court correctly awarded P50,000 by way of civil indemnity to the heirs of the victim Fernando Ondo Prudente. However, the award ofP50,000 for moral damages should be deleted, there being no proof that the heirs of the victim suffered wounded feelings, mental anguish, anxiety and similar injury. The said heirs are, instead, entitled to an award of P25,000 as temperate damages, conformably to current jurisprudence.[43] IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of the City of Malaybalay, Bukidnon, Branch 8, is AFFIRMED WITH MODIFICATIONS. The appellant Edgar Dumadag y Cagadas is found GUILTY beyond reasonable doubt of Homicide under Article 249 of the Revised Penal Code, as amended by Rep. Act No. 7659 and is sentenced to suffer the indeterminate penalty of from Eight (8) years and One (1) day of prision mayor in its medium period, as minimum, to Fourteen (14) years, Eight (8) months and One (1) day of reclusion temporal in its medium period, as maximum. The appellant is ORDERED to pay Fifty Thousand Pesos (P50,000) as civil indemnity and Twenty-Five Thousand (P25,000) as temperate damages to the heirs of the victim. The award of moral damages is deleted. No costs. SO ORDERED.

The Crime Committed by the Appellant

We agree with the appellant and the OSG that the prosecution failed to prove treachery in the commission of the crime. Treachery is not presumed.[34] Treachery must be proven as clearly and as cogently as the crime itself.[35] There is treachery (alevosia) when the offender commits any of the crimes against the person, employing means, methods or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make.[36] Two conditions must concur for treachery to be present, viz: (1) the employment of means of execution that gives the person attacked no opportunity to defend himself or to retaliate; and, (2) the said means of execution were deliberately or consciously adopted.[37] Treachery cannot be appreciated if it has not been proved beyond reasonable doubt that the assailant did not make any preparation to kill the victim in such a manner as to insure the killing or to make it impossible or difficult for the victim to defend himself.[38] The prosecution must prove that the killing was premeditated or that the assailant chose a method of attack directly andspecially to facilitate and insure the killing without risk to himself.[39] The mode of attack must be planned by the offender and must not spring from the unexpected turn of events.[40] In the case at bar, the trial court merely relied on the suddenness of the attack on the unarmed and unsuspecting victim to justify treachery. As a general rule, a sudden attack by the assailant, whether frontally or from behind, is treachery if such mode of attack was deliberately adopted by him with the purpose of depriving the victim of a chance to either fight or retreat. The rule does not apply if the attack was not preconceived but merely triggered by infuriation of the appellant on an act made by the victim.[41] In the present case, it is apparent that the attack was not preconceived. It was triggered by the appellants anger because of the victims refusal to have a drink with the appellant and his companions. For failure of the prosecution to prove beyond reasonable doubt the attendance of the qualifying circumstance of treachery, the appellant can only be convicted of homicide. The penalty of homicide under Article 249 of the Revised Penal Code is reclusion temporal. There being no mitigating or aggravating circumstances attendant, the maximum of the indeterminate penalty shall be taken from the medium period of reclusion temporal. The minimum of the indeterminate penalty shall be taken from the full range of the penalty next lower in degree, namely, prision mayor. Thus, the appellant may be sentenced to an indeterminate penalty ranging from eight (8) years and one (1) day of prision mayor, in its medium period, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal in its medium period, as maximum.[42]

FIRST DIVISION [G.R. No. 103547. July 20, 1999] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMEO MALLARI y SANCHEZ, accused-appellant. SYNOPSIS Accused- appellant herein was charged with murder for stabbing to death one Alfredo Mendoza. Upon arraignment, appellant pleaded not guilty. Whereupon, trial on the merits ensued. After trial, the court found the accused guilty beyond reasonable doubt of the crime of murder and sentenced to suffer the penalty of reclusion perpetua, and indemnity. In this appeal, appellant raised several assignments of error for which the Court was not persuaded. The Supreme Court found nothing to indicate that the witness falsified the truth or that his observation has been inaccurate. As to inconsistency in the description of the weapon, suffice it to say that the alleged inconsistency, assuming there was one, was not fatal to the case at bar. Even without the description, all the elements of the crime of murder have already been satisfactorily established. The decision of the trial court finding the accused guilty and sentencing him to suffer the penalty ofreclusion perpetua was affirmed with the corresponding indemnity to the heirs of the victim. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; DISPUTABLE PRESUMPTION; EVIDENCE WILLFULLY SUPPRESSED WOULD BE ADVERSE WHEN PRODUCED; NOT APPLICABLE WHEN THE EVIDENCE IS MERELY CORROBORATIVE; CASE AT BAR. The disputable presumption that evidence willfully suppressed would be adverse if produced is not even applicable in the instant case. It is extant from the records that the prosecution has satisfactorily established its case against accused-appellant through the sole testimony of Wilfredo Eyas. Hence, there is no more necessity to present Borja as his testimony would only be corroborative, if not cumulative. In People vs. Pagal (G.R. Nos. 112620-21, May 14, 1997, 272 SCRA 449) this Court has ruled that the adverse presumption arising from suppression of evidence is not applicable when the evidence is merely corroborative or cumulative and/or likewise available to the defense. In the instant case, Borja was not a material witness but merely a corroborative one. 2. ID.; ID.; ID.; SUPPRESSION OF EVIDENCE; NOT PRESENT WHEN THE CORROBORATIVE WITNESSES WERE NOT PRESENTED IN COURT. In People vs. Jumanoy, (G.R. No. 101584, April 7, 1993, 221 SCRA 333, at 344) this Court held: 21

Civil Liabilities of the Appellants

The prosecutions failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecution has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several witnesses, as in the instant case, the prosecution need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the nonpresentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecutions case. 3. ID.; ID.; TESTIMONY OF A WITNESS; WHEN FOUND POSITIVE AND CREDIBLE IS SUFFICIENT TO PRODUCE A CONVICTION. Well-entrenched is the rule that the testimony of a lone eyewitness, if found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony bears the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be weighed, not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greater number and conviction can still be had on the basis of the credible and positive testimony of a single witness. Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observation had been inaccurate. 4. ID.; ID.; ID.; HEARSAY RULE; INDEPENDENTLY RELEVANT STATEMENT, AS AN EXCEPTION; CASE AT BAR. When Pfc. Obrero said they were informed by a certain Aling Vicky that Eyas was one of the drinking companions of the victim, he was only testifying that they were able to talk to a certain Aling Vicky. In so saying, he was not asserting that Eyas was present at the crime scene. Under our Rules of Evidence, this is considered an independently relevant statement and an exception to the hearsay rule. In People vs, Cusi, Jr. (No. L20986, August 14, 1965, 14 SCRA 945-946) this Court had occasion to rule that (w)hile the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement. 5. ID.; ID.; ID.; CREDIBILITY; FINDINGS OF THE TRIAL COURT; ACCORDED DUE WEIGHT AND RESPECT. It is well-entrenched that when the issue boils down to credibility, the findings of trial courts is accorded due weight and respect because of its unique position to properly observe the deportment of every witness during trial. 6. ID.; ID.; ID.; ID.; NOT AFFECTED BY MINOR INCONSISTENCIES. Inconsistencies in the testimonies of witnesses which refer to minor and insignificant details do not destroy their credibility. Such minor inconsistencies even manifest truthfulness and candor and erase any suspicion of rehearsed testimony.

seated Mendoza from behind while the latter was pouring beer into his glass. The stabbing was executed swiftly and lasted less than a minute. The suddenness and unexpectedness of the attack even failed to forewarn or arouse any alarm from Mendozas drinking companions. Because of the suddenness by which the crime was committed, Mendoza did not have any opportunity to defend himself. Accused-appellant deliberately approached Mendoza from behind to avoid any risk for himself and to ensure its execution. Clearly, the attack was treacherous. DECISION YNARES-SANTIAGO, J.: Accused-appellant Romeo Mallari y Sanchez, also known as Romy Toyo or Meo, was charged with murder in an information that reads as follows: That on or about December 9, 1990, in the City of Manila, Philippines, the said accused did then and there willfully, unlawfully and feloniously, with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one ALFREDO MENDOZA Y ESTRELLA, by then and there stabbing the latter with a bladed weapon on the chest thereby inflicting the latter mortal wounds which were the direct and immediate cause of his death thereafter.[1] Upon arraignment, accused-appellant pleaded not guilty. Whereupon, trial on the merits ensued. The prosecution presented Wilfredo Eyas, an alleged eyewitness; Pfc. Norberto Obrero of the Investigation Division and Dr. Marcial Ceido, Medico Legal Officer, both of the Western Police District. The defense, on the other hand, presented accused-appellant himself and his father Pedro Mallari. The facts as found by the trial court are as follows: At 8:30 in the evening of December 9, 1990, Alfredo Mendoza, Wilfredo Eyas, and Ricardo Borja were having a drinking spree at the corner of Claro M. Recto and Elcano Streets, Binondo, Manila.[2] Eyas sat in front of Mendoza about an armslength away while Borja sat on his right.[3] About four (4) meters away was the pushcart owned by a certain Aling Vicky where they bought beer.[4] Mendoza, Eyas and Borja were drinking for more or less thirty (30) minutes and consumed six (6) bottles of beer.[5] While Mendoza was pouring beer into his glass, accused-appellant suddenly appeared from behind Mendoza and stabbed him on the chest once with a pointed weapon.[6] After stabbing Mendoza, accused-appellant casually walked away and then fled from the scene. Eyas ran after accused-appellant but when the latter saw Eyas running after him, he turned around and ran after Eyas instead. Afraid, Eyas retraced his steps and returned to where he left his wounded comrade.[7] Mendoza, by then, had already been brought to Mary Johnston Hospital where he was pronounced dead on arrival. The guard on duty called up the homicide section of the Western Police District and reported the stabbing incident. Responding to the call, Pfc. Norberto Obrero and Pat. Henry Nuez went to the hospital where they saw Bartolome Castro and Joey Angeles who claimed to have been likewise stabbed by Romy Toyo on C.M. Recto and Elcano Streets, Binondo, Manila. They likewise learned that a certain Alejandro Quintana was also stabbed dead by Romy Toyo on the same street corner. At around 9:30 in the evening of December 9, 1990, the police investigators went to the crime scene where they were informed by a certain Aling Vicky that Wilfredo Eyas was one of the drinking companions of the victim. They sought Eyas but the latter only told them his name and address and did not give any statement regarding the incident. Eyas knew accused-appellant was then still at large and a notorious killer.

7.CRIMINAL LAW; AGGRAVATING CIRCUMSTANCE; TREACHERY; PRESENT WHEN THE OFFENDER EMPLOY MEANS, METHODS OR FORMS IN THE EXECUTION, WITHOUT RISK TO HIMSELF; CASE AT BAR. There is treachery when the offender commits any of the crime against the person, employing means, methods or forms in the execution, without risk to himself arising from the defense which the offended party might make. (People vs. Mario Villanueva y Faustino, G.R. No. 122746, January 29, 1999) In the instant case, accused-appellant stealthily approached the

22

Medico-Legal Officer Dr. Marcial Ceido autopsied the cadaver of Mendoza. According to him, Mendoza died of a penetrating stab wound right anterior thorax appearing at the right ventricle of the heart.[8] In his opinion, the relative position of the wound would be more in line with the theory that the assailant could have been standing when he attacked his seated victim.[9] Based on the information gathered, Pfc. Obrero prepared the Advance Information naming Romy Toyo or Meo as the suspect. On January 7, 1991, operatives of the Patrol Division of the Western Police District apprehended accused-appellant in connection with a robbery with homicide case.[10] Apprised of the apprehension, Pfc. Obrero asked Eyas and Borja to identify him. Eyas pointed to accused-appellant in a police line-up of seven persons as the killer of Alfredo Mendoza. On the basis of the identification, accused-appellant was formally charged for the killing of Alfredo Mendoza. Accused-appellant denied knowing Alfredo Mendoza or killing him. He confirmed being called Romy Toyo by his family and friends but denied being called Meong.[11] He claimed he was resting in his house at J.P. Rizal St., Makati on the day the stabbing occurred.[12] Accused-appellant also testified that he was invited to the Makati Police Station where he was informed of the charge of murder against him.[13] He admitted being made to join a police line-up twice in the Western Police District Station but denied that Eyas pointed or identified him. He further alleged that he did not even see Eyas during the police line-up.[14] He claimed that the police officers maltreated him while in detention and forced him to admit the charges filed against him.[15] In addition, accused-appellant alleged that Pfc. Obrero demanded money supposedly for the dropping of charges against him. Since the money given by his father and sister was not enough, only three (3) out of five (5) charges against him were dropped.[16] Accused-appellant claimed he only met Ricardo Borja, who was then also detained at the City Jail, for the first time when he appeared before the trial court in connection with his case.[17] Pedro Mallari, father of accused-appellant, testified that he accompanied his son to the police station and pleaded with Pfc. Obrero to help his son. However, Pfc. Obrero told him the case was already out of his hands. He admitted offering money to the policeman for the dropping of the cases against his son.[18] The trial court found accused-appellant guilty beyond reasonable doubt of murder and sentenced him to suffer the penalty of reclusion perpetua, to indemnify the heirs of Alfredo Mendoza in the amount of P50,000.00 and to pay the costs.[19] The accused-appellant raises the following assignment of errors: I. THE FAILURE TO PRODUCE BORJA TO TESTIFY IS TANTAMOUNT TO A SUPPRESSION OF EVIDENCE UNDER RULE 131 WHILE BEING AT THE SAME TIME A GROSS VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED TO COMPULSORY PROCESS. II THE TRIAL COURT ERRED IN GIVING FULL FAITH AND CREDIT TO WITNESS EYAS TESTIMONY. A] WITNESS EYAS ACCOUNT OF THE STABBING DOES NOT JIBE WITH THE MEDICAL FINDINGS OF THE MEDICO-LEGAL OFFICER AND IT FURTHERMORE DEFIES HUMAN EXPERIENCE.

C]

THERE WAS FAILURE TO PROVE EYAS PRESENCE AT THE TIME OF THE INCIDENT. THE LACK OF PROOF OF ILL-MOTIVE ON EYASS PART IS NOT REQUIRED IN THIS CASE CONTRARY TO THE TRIAL COURTS DECISION. EYAS TESTIMONY IS INCREDIBLE, AND FRAUGHT WITH INCONSISTENCIES. III

D]

E]

THE FINDING OF GUILT BEYOND REASONABLE DOUBT IS PERFORCE EQUALLY ERRONEOUS.[20] This Court is not persuaded. Consequently, accused-appellants conviction stands.

First: Contrary to the assertion of the defense, the prosecution is not guilty of suppression of evidence. The disputable presumption that evidence willfully suppressed would be adverse if produced is not even applicable in the instant case. It is extant from the records that the prosecution has satisfactorily established its case against accusedappellant through the sole testimony of Wilfredo Eyas. Hence, there is no more necessity to present Borja as his testimony would only be corroborative, if not cumulative.
In People v. Pagal[21] citing People v. de Jesus,[22] this Court has ruled that the adverse presumption arising from suppression of evidence is not applicable when the evidence is merely corroborative or cumulative and/or likewise available to the defense. In the instant case, Borja was not a material witness but merely a corroborative one. If at all, Borja would only confirm the matters already testified to by Eyas. It should be noted that Borja was a drinking companion of Mendoza and Eyas and in all likelihood, would only testify on what he saw during the incident which would not have been substantially or significantly different from what Eyas had testified on. In any event, it was within the prerogative of the prosecution whom to present as witness. More importantly, Borja was at the disposal of both the prosecution and the defense. Both parties subpoenaed Borja but the latter failed to appear at both times. The defense did not proffer proof that the prosecution prevented Borja from testifying. There is therefore no basis for it to conclude that the prosecution is guilty of suppression of evidence. The defense was not short of alternative remedies for their failure to compel Borja to appear before the court. They could have asked that Borja be cited for contempt, or if they were really desperate to disprove the eyewitness account of Eyas, they could have summoned other witnesses aside from Borja because, to borrow the words of the defense, there are of course others who have witnessed the crime.[23] In People v. Jumanoy,[24] this Court held: The prosecutions failure to present the other witnesses listed in the information did not constitute, contrary to the contention of the accused, suppression of evidence. The prosecution has the exclusive prerogative to determine the witnesses to be presented for the prosecution. If the prosecution has several witnesses, as in the instant case, the prosecution need not present all of them but only as many as may be needed to meet the quantum of proof necessary to establish the guilt of the accused beyond reasonable doubt. The testimonies of the other witnesses may, therefore, be dispensed with for being merely corroborative in nature. This Court has ruled that the nonpresentation of corroborative witnesses would not constitute suppression of evidence and would not be fatal to the prosecutions case. Regardless, the well-entrenched rule is that the testimony of a lone eyewitness, if found positive and credible by the trial court, is sufficient to support a conviction especially when the testimony bears 23

B]

TREACHERY NECESSARILY WAS NOT PROVEN.

the earmarks of truth and sincerity and had been delivered spontaneously, naturally and in a straightforward manner. It has been held that witnesses are to be weighed, not numbered; hence, it is not at all uncommon to reach a conclusion of guilt on the basis of the testimony of a single witness. For although the number of witnesses may be considered a factor in the appreciation of evidence, preponderance is not necessarily with the greater number and conviction can still be had on the basis of the credible and positive testimony of a single witness. Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that the witness falsified the truth or that his observation had been inaccurate.[25] The lower court found nothing to indicate that Eyas falsified the truth or that his observation had been inaccurate.

testimony of Wilfredo Eyas must be accorded by the Court full credit and probative value.[27] Besides, the medical findings corroborated the testimony of Eyas particularly on the manner by which the stabbing was committed. Eyass narration complemented the medical findings description of the wounds inflicted upon the victim. In addition, the finding that the victims stomach contained a liquid substance of alcoholic odor confirmed the fact that the victim was drinking beer when accused-appellant suddenly and unexpectedly lunged at him.

Second: The defense posits that it was highly incredible for accused-appellant to have stabbed his victim in the manner described by Eyas without him leaning back or touching the shoulders of his victim. Accused-appellant argues, (t)o produce that mortal wound by using only one hand and without touching the other parts of the body of the intended victim, the wielder of the knife must first lean back in order to gain enough momentum to produce the force required to inflict such kind of a stab wound. Either that or hang on to any part of the victims body with one hand and then plunge the knife at (sic) the chest with the other. In this case, no such leaning back was shown by the witness nor was there any proof given by the witness showing that the killer clinged (sic) to the victim before delivering the fatal blow.[26]
This reasoning is flawed. It presupposes that the demonstration in the trial court as to how accused-appellant supposedly stabbed the victim was squarely and exactly the same on all points with the actual stabbing. The defense exaggerates the point that accused-appellant did not lean back before plunging the pointed instrument nor did so without touching the shoulders of the victim in order to forcefully deliver the fatal blow. Suffice it to say that the cold pages of the records of this case do not graphically convey every minute detail that transpired in the lower court. Not every fearful glance or guilty sigh of the accused nor the resigned and restrained anguish of the victim is reflected and given life in the records. This is precisely the reason why this Court has often relied on the factual findings of the trial courts. Corollary to this, the court a quo found: After a minutiose and incisive consideration and judicious assessment of the evidence marshalled by the Prosecution, more particularly the testimony of Wilfredo Eyas, the Court found, and so holds that, indeed, the Prosecution was able to prove that it was Accused who stabbed the deceased, Alfredo Mendoza, on the chest which caused the latters death (Exhibits G and H and H-I). Wilfredo Eyas was barely armslength from in front of Alfredo Mendoza and positioned himself on the side of the latter and then stabbed Alfredo Mendoza on the chest, once, with a five-inch knife (minus the handle). The place where the stabbing occured was illumined by the light emanating from the 100-watt bulb hanging from the pushcart of Aling Vicky behind Wilfredo Eyas where the latter, Ricardo Borja and Alfredo Mendoza were having a drinking spree. Considering the proximity of Wilfredo Eyas to the deceased when the Accused stabbed the latter and the lighting conditions in the vicinity at the time, there is no scintilla of doubt in the mind of the Court of the identification of the Accused as the perpetrator of the macabre stabbing. Wilfredo Eyas has pointed to and identified the Accused in a police line-up of seven (7) persons on January 9, 1991, at the Homicide Section of the Western Police District as the person who stabbed Alfredo Mendoza (Exhibits J and J I). When Wilfredo Eyas testified before the Court, he spontaneously and unerringly pointed to and identified the Accused when asked by the Assistant City Prosecutor to identify and point, from among the persons inside the courtroom, to be the person who stabbed Alfredo Mendoza. There is no shred of evidence in the record and the Accused adduced none to prove that Wilfredo Eyas had any pernicious or devious motive to fabricate and concoct the charge against the Accused and tergervisate (sic) his testimony before the Court. The barefaced fact that Wilfredo Eyas and Alfredo Mendoza are friends is not enough to taint the testimony of Wilfredo Eyas. Absent such ill-motive, the

Third: The defense argues that Eyass presence at the crime scene was not proven considering that Aling Vicky, supposedly the policemans source of information, was not presented before the Court thereby making the policemans testimony of doubtful credibility for being hearsay. We disagree. When Pfc. Obrero said they were informed by a certain Aling Vicky that Eyas was one of the drinking companions of the victim, he was only testifying that they were able to talk to a certain Aling Vicky. In so saying, he was not asserting that Eyas was present at the crime scene. Under our Rules of Evidence, this is considered an independently relevant statement and an exception to the hearsay rule. In People v. Cusi, Jr.[28] this Court had occasion to rule that (w)hile the testimony of a witness regarding a statement made by another person, if intended to establish the truth of the fact asserted in the statement, is clearly hearsay evidence, it is otherwise if the purpose of placing the statement in the record is merely to establish the fact that the statement was made or the tenor of such statement.
Besides, there was no need to present Aling Vicky as Eyas himself categorically testified that he was at the crime scene at the time it was committed and positively identified accused-appellant as the lone assailant. The trial court believed Eyass version finding him more credible than accused-appellant. The Court sees no reason to disturb this finding. It is well-entrenched that when the issue boils down to credibility, the findings of trial courts is accorded due weight and respect because of its unique position to properly observe the deportment of every witness during trial.

Fourth. The inconsistencies referred to by the defense were inconsequential and trivial. The points that mattered most in Eyass testimony were his presence at the crime scene, his identification of accused-appellant as the perpetrator of the crime, and his credible and corroborated narration of accused-appellants manner of stabbing Mendoza. The inconsistencies pointed out by the defense referred only to events occurring after the commission of the crime.
As to Eyass apparent inconsistency in his description of the weapon, suffice it to say that the alleged inconsistency, assuming there was one, is not fatal to the case at bar. In fact, Eyass account that a bladed weapon was used corresponds with the medico-legal officers finding that the fatal thrust was delivered using a pointed instrument. Be that as it may, the description of the weapon used in perpetrating the crime was not essential in establishing the guilt of accused-appellant. Even without said description, all the elements of the crime of murder have already been satisfactorily established. Inconsistencies in the testimonies of witnesses which refer to minor and insignificant details do not destroy their credibility. Such minor inconsistencies even manifest truthfulness and candor and erase any suspicion of rehearsed testimony.[29]

Fifth: The trial court correctly found that treachery attended the commission of the crime. There is treachery when the offender commits any of the crime against the person, employing means, methods or forms in the execution, without risk to himself arising from the defense which the offended party might make.[30] In the instant case, accused-appellant stealthily approached the seated Mendoza from behind while the latter was pouring beer into his glass. The stabbing was executed swiftly and lasted less than a minute. The suddenness and unexpectedness of the attack even failed to forewarn or arouse any alarm from Mendozas drinking companions. Because of the suddenness by which the crime was committed, Mendoza did not have any opportunity to defend himself. Accused-appellant deliberately approached Mendoza from behind to avoid any risk for himself and to ensure its execution. Clearly, the attack was
24

treacherous. In People v. Mario Villanueva y Faustino[31] this Court held: The victim was shot from behind by one who proceeded stealthily and quickly. The victim was not aware of any impending attack against his person, and even Adelfa Nacional, who had seen MARIO approach her husband, was surprised by the suddenness with which MARIO shot her husband. Under these circumstances, the victim was clearly deprived of an opportunity to defend himself, thus ensuring the execution of the offense without risk to MARIO. Hence, there was treachery. WHEREFORE, based on the foregoing, the decision of the Regional Trial Court-Br. 44, Manila, finding accused-appellant Romeo Mallari y Sanchez GUILTY of murder and sentencing him to suffer the penalty of reclusion perpetua, to indemnify the heirs of Alfredo Mendoza P50,000.00 and to pay the costs, is AFFIRMED. SO ORDERED. THIRD DIVISION REPUBLIC OF THE PHILIPPINES, Petitioner, G.R. No. 159275 Present: - versus CARPIO MORALES, J., Chairperson, BRION, BERSAMIN, VILLARAMA, JR., and SERENO, JJ. d) c)

Defendant Ricardo C. Silverio of Kawasaki Scrap Loaders and Toyota Rear Dump Trucks, respectively; b) received annually, for three consecutive years, special accommodations, privileges and exemptions by the Central Bank in the form of (i) increased dollar import quota allocation for the importation of Toyota vehicles for Delta Motors[,] Inc., and airconditioning and refrigerating equipment in excess of the limits prescribed under applicable Central Bank Rules and Regulations, and (ii) a more liberal mode of payment (i.e., documents against acceptance (D/A) vs. letter of credit (L/C) arrangement) contrary to Central Bank Rules and Regulations and to the manifest disadvantage of Plaintiff and the Filipino people; obtained huge amounts in loans, guarantees and other types of credit accommodations under favored and very liberal terms of credit fromgovernment financial institution, such as the Philippine National Bank, to finance the establishment, operation and working capital requirements of his various business/financial ventures, more particularly, the Delta Motors Corporation, to the serious detriment of Plaintiff and the Filipino people; was extended preferential status and treatment in the implementation of the Governments Progressive Car Manufacturing Program (PCMP) resulting in (i) unfair advantage to Defendant Ricardo C. Silverio, (ii) unjust and improper discrimination against the other participants in the PCMP, and (iii) the ultimate demise of PCMP, to the grave damage and prejudice of Plaintiff and the Filipino people; obtained from the Central Bank multi-million peso emergency loans as additional capital infusion to Filipinas Bank, a commercial banking institution owned and/or controlled by Defendant Ricardo C. Silverio; acted as dummy, nominee or agent of Defendants Ferdinand E. Marcos and Imelda R. Marcos in several corporations where said Defendants have substantial interests such as the Meralco Securities and the First Philippine Holdings Corporation and, with the active collaboration, knowledge and willing participation of Fe Roa Gimenez and Hector Rivera who served as conduit for the receipt of funds from said corporations. Defendants Fe Roa Gimenez and Hector Rivera are subjects of separate suits.[2]

THE HON. SANDIGANBAYAN Promulgated: (SECOND DIVISION), RICARDO C. SILVERIO, FERDINAND E. MARCOS August 25, 2010 (now substituted by his heirs), IMELDA R. MARCOS and PABLO P. CARLOS, JR. (now substituted by his heirs), Respondents. x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION VILLARAMA, JR., J.: This petition for certiorari seeks to annul and set aside the June 9, 2003 Resolution[1] of public respondent Sandiganbayan (Second Division) which denied the motion to reopen for presentation of plaintiffs additional evidence filed by the Republic of the Philippines. The factual antecedents: On July 22, 1987, petitioner through the Presidential Commission on Good Government (PCGG), instituted SB Civil Case No. 0011 for reconveyance, reversion, accounting, restitution and damages, entitled Republic of the Philippines v. Ferdinand E. Marcos,

e)

f)

Imelda R. Marcos, Ricardo C. Silverio and Pablo P. Carlos, Jr. Petitioner seeks to recover ill-gotten wealth acquired or

accumulated by the said respondents either singly or collectively, and includes charges of misappropriation and theft of public funds; plunder of the nations wealth; extortion; blackmail; bribery; embezzlement and other acts of corruption; betrayal of public trust; and abuse of power, to the grave and irreparable damage of petitioner. Private respondents Silverio and Carlos, Jr. were specifically charged with the following acts: a) gave to above Defendant spouses improper payments such as kickbacks and/or commissions in hundreds of thousands of US dollars in exchange for an award to

After the presentation of its witnesses Godofredo dela Paz (Bank Officer III, Bangko Sentral ng Pilipinas) and Ma. Lourdes O. Magno (PCGG Librarian), petitioner rested its case. In its Formal Offer of Evidence dated October 18, 2001, petitioner submitted only the following documents: EXH. A - Resolution of the Supreme Court promulgated on October 26, 1987, in G.R. 25

No. 77645 entitled Ricardo Silverio, petitioner, versus Presidential Commission on Good Government, respondent. Purpose: To show that there is a prima facie case against the defendant Ricardo Silverio, i.e., defendant has acquired assets and properties manifestly out of proportion to his usual and normal income. EXH. B - Memorandum dated April 27, 1987, of Godofredo dela Paz, re: Import Quota Allocations Granted to Delta Motors Corporation (DMC) EXH. B-1 - Signature of Godofredo dela Paz appearing on page 3 of Exh. B. Purpose: To show that Delta Motors Corporation, a corporation 96% owned by defendant Ricardo Silverio, was granted exemptions by the Central Bank in the matter of importing motor vehicles and air conditioning and refrigeration equipment because of said defendants close association with former President Ferdinand Marcos. EXH. C - A certification dated August 25, 1967, signed by defendant Ricardo Silverio whereby defendant committed himself to pay $499,500.00 to someone, in consideration of his arrangements for making possible the award to defendant of 1,000 units of Toyota rear dump trucks. EXH. C-1 - Signature of defendant Ricardo Silverio appearing at the bottom of Exh. C-1. Purpose: To show that defendant Ricardo Silverio gave to former President Marcos improper payments in exchange for an award to defendant of Toyota rear dump trucks. EXH. D - A certification dated August 25, 1967, signed by defendant Ricardo Silverio whereby defendant committed himself to pay $290,000.00 to someone, in consideration of his arrangements for making possible the award to defendant of 200 units Kawasaki Scoop loaders. EXH. D-1 - Signature of defendant Ricardo Silverio appearing at the bottom of Exh. D. Purpose: To show that defendant Ricardo Silverio gave to former President Marcos improper payments in exchange for an award to defendant of Kawasaki Scoop loaders. EXH. E - Letter dated May 10, 1980, of Ricardo Silverio addressed to President Ferdinand E. Marcos. Purpose: To show that the enterprises ostensibly owned by Ricardo Silverio, e.g. Filipinas Bank and Delta

Motors Corp., are beneficially owned and controlled by former President Ferdinand Marcos.[3]

Acting on the formal offer of evidence by the petitioner, as well as the comments/oppositions respectively filed by respondents Silverio, Carlos, Jr. and Marcos, public respondent issued a Resolution[4] on January 10, 2002 admitting only Exhibit A and denying admission of Exhibits B to E for being mere photocopies and irrelevant to the purpose for which they were offered, and failure to prove the due execution and authenticity of private writings. Nonetheless, the documents not admitted were allowed to remain on the records. On February 4, 2002, petitioner filed a Motion for Extension of Time to File Motion for Reconsideration,[5] expressing its intention to file a Consolidated Motion for Reconsideration with Motion to File Supplement to Formal Offer of Evidence. On February 26, 2002, petitioner filed a Motion to Admit Herein Motion for Reconsideration with Supplement to Formal Offer of Evidence[6] setting forth the following arguments: (a) Technical rules should be set aside when necessary to achieve the purposes behind PCGGs creation; (b) The best evidence rule does not apply since the contents of the writings are not in issue; (c) Assuming arguendo that the best evidence rule applies, then secondary evidence may be availed of when the original writing itself is unavailable and cannot be produced in court; and (d) Exhibits B and B-1 are admissible because they are relevant in establishing the fact that defendant Silverio was granted accommodations by reason of his close association with former President Marcos.[7] In a Resolution[8] dated May 21, 2002, public respondent denied petitioners Motion to Admit Herein Motion for Reconsideration with Supplement to Formal Offer of Evidence. It held that the petitioner was unable to establish the loss or destruction of the original documents and hence it cannot be permitted to present secondary evidence as required under Rule 130 of the Rules of Court. That the best evidence rule applies in this case is demonstrated by petitioners own purpose in offering the rejected documentary exhibits for how then can it intend to prove the defendants close business/personal relationship with defendant Ferdinand E. Marcos without inquiring into the contents thereof. Moreover, citing Section 19 of Rule 132, public respondent declared that the mere fact that the subject documents form part of the public records of private documents in the possession of PCGG, [which were] required by law to be entered therein, does not necessarily make them public documents; none of the exhibits offered by the petitioner is required by any law to be entered in a public record. As to Exhibits B and B-1, even if properly identified by Godofredo dela Paz, the one (1) who executed the same, still the court rejected these evidence on the ground that the same were mere photocopy and the offeror failed to lay the basis for the introduction of secondary evidence, again in violation of the best evidence rule.[9] On September 25, 2002, petitioner filed a Motion to Reopen Plaintiffs Presentation of Evidence[10] stating thus: 7. That on July 11, 2002, while preparing the files of PCGG documentary evidence for computer scanning, PCGG Librarian Ma. Lourdes Magnodiscovered the original copies of certain documentary evidence relevant to this case misfiled in a different case folder, thus, their availability now for presentation. The affidavit of Ma. Lourdes Magno dated September 23, 2002 is hereto attached as Annex A. Considering the voluminous records and documents involved in the numerous ill-gotten wealth cases initiated by the PCGG, such incident should understandably be unavoidable. It bears 26

emphasis that these documents were among those enumerated in the Pre-Trial Brief. Attached herewith are certified true copies of the said documents, the originals of which will be presented in the course of the proceedings, to wit: (a) Memorandum of Godofredo dela Paz dated 27 April 1987 (Annex B hereof) which was marked as plaintiffs Exhibit B in its Formal Offer of Evidence; (b) Delta Motor[s] Corporation stock certificate for 10,000 shares issued to defendant Silverio; (Annex C hereof) which was marked as plaintiffs Exhibit J in its Pre-Trial Brief; (c) Philippine American Investments Corporation stock certificate for 10,000 shares issued to Jose P. Madrigal (Annex D hereof) which was marked as plaintiffs Exhibit I in its Pre-Trial Brief; (d) Lepanto Consolidated Mining stock certificate for 3,183,750 shares issued to Fairmont Real Estate[,] Inc. (Annex E hereof) which was marked as plaintiffs Exhibit H in its Pre-Trial Brief; (e) Meralco stock certificate for 1,566 shares issued to defendant Silverio (Annex F hereof) which was marked as plaintiffs Exhibit C in its Pre-Trial Brief; (f) Meralco stock certificate for 1,175 shares issued to defendant Silverio (Annex G hereof) which was marked as plaintiffs Exhibit D in its Pre-Trial Brief; (g) Meralco stock certificate for 1,175 shares issued to defendant Silverio (Annex H hereof) which was marked as plaintiffs Exhibit C in its Pre-Trial Brief; and (h) letter of Silverio to former President Ferdinand E. Marcos dated 10 May 1980 (Annex I hereof) which was marked as plaintiffs Exhibit E in its Formal Offer of Evidence. Attached also as Annexes are certified photocopies of Silverios Letter dated 2 January 1974 (Annex J) and an Insular Minerals Exploration Hinobaan Copper Project Timetable (Annex K hereof). Plaintiff intends to recall Ma. Lourdes O. Magno as its witness to testify on the existence of the foregoing documents. 8. Further to prove its case against defendants, plaintiff also intends to present as additional evidence the relevant contents

of the transcript of defendant Silverios direct testimony in the case of US v. Imelda Marcos and Adnan Kashoggi, before the US District Court, Southern District of New York (SSS87, Cr 0598 [JFK]), particularly on the following facts: a. The personal help given by Ferdinand Marcos to defendant Silverio regarding the approval of an SSS loan; b. The corresponding transfer of shares of Delta Motors Corporation from defendant Silverio to Ferdinand Marcos then valued at $900,000; c. Defendant Silverios receipt and endorsement in blank of shares of Meralco Securities and First Philippine Holdings Corp. which were then given to a certain Mr. Fontanilla, one of the secretaries of Mr. Roberto Benedicto, and which were then delivered to Mr. Marcos; d. Delivery of cash dividends to Fe Roa Gimenez in Malacaang Palace; and, e. The 15% commission of Mr. Marcos out of the $6,000,000 from the Reparations Commission, among others. Plaintiff intends to make the necessary request for admission of such additional vital evidence, since the purpose of the rule governing requests for admissions of facts and genuineness of documents is to expedite trial and to relieve parties of the costs of proving facts which will not be disputed on trial and the truth of which can be ascertained by reasonable inquiry. Attached herewith as Annex L is the letter dated August 27, 2002 of the Presidential Commission on Good Government addressed to Monger, Tolles and Olsen, its counsel in the aforementioned case, requesting for authenticated and certified true copy of the transcript of stenographic notes in the said case. On the basis of the foregoing, plaintiff respectfully seeks to reopen the case for the presentation of its additional evidence.[11] (Emphasis supplied.)

Respondent Silverio filed his Opposition[12] asserting that the grounds cited by petitioner do not warrant a reopening of the presentation of evidence. Assuming that petitioner identified the misfiled documents in its pre-trial brief, still petitioners failure to present the same was due to gross and inexcusable negligence. He further pointed out that Atty. Edgardo L. Kilayko of the PCGG categorically declared at the September 18, 2001 hearing that petitioner had no other evidence apart from those already marked. He claimed that the timing of the discovery of the misfiled documents is highly suspect, after the court rejected these certain documents and only after fourteen (14) years since the case was filed when petitioner should have already gathered, prepared and presented its evidence.

27

In its Reply[13] to Opposition, petitioner argued that the paramount interest of justice, the recovery of ill-gotten wealth declared as an overriding policy of State under Executive Order Nos. 1, 2, 14 and 14-A, requires that petitioner Republic be granted the opportunity to present the originals of the exhibits it earlier presented, in compliance with the courts lawful order when it denied admission of mere photocopies of the same when they were first formally offered. Petitioner also stressed that respondent Silverios right to speedy trial was not violated as there was no unreasonable request for postponement of the trial but a supplication for the reopening of the case to present additional evidence to protect the States interest, the additional evidence sought to be offered being relevant and material to petitioners case. Aside from the originals of the exhibits earlier formally offered, as well as documents listed in the Pre-Trial Brief, petitioner seeks to present in evidence respondent Silverios own testimony in the case of US v. Imelda Marcos and Adnan Kashoggi wherein he testified to matters referred to in petitioners Motion to Reopen the presentation of evidence in this case; these are very material as they contain statements given by respondent Silverio under oath in a US District Court referring to acts and documents concerning the very allegations sought to be established by petitioner in this case. There can be no cries of surprise on the part of respondent Silverio since everything sought to be introduced are of public records, and as for aforementioned testimony, based on his own personal knowledge. On June 9, 2003, public respondent issued the assailed Resolution[14] denying the Motion to Reopen Plaintiffs Presentation of Evidence, as follows: WE view the motion more of the nature of a plea to reconsider our resolution denying the admission of Exhibits B to E. Thus, the prayer is to allow to present additional witness and/or to recall witness to establish the existence and execution of the original copies of Exhibits B to E. If we afford affirmative relief to the motion, it

Hence, this recourse via certiorari alleging grave abuse of discretion in the denial of petitioners motion to reopen presentation of plaintiffs evidence. On November 10, 2003, we granted petitioners urgent motion for issuance of a temporary restraining order and directed public respondent to refrain from acting on and/or taking cognizance of the Motion to Dismiss by way of Demurrer to Evidence (Motion to Dismiss) filed by respondent Silverio, and from enforcing its June 9, 2003 Resolution denying petitioners motion to reopen for presentation of additional evidence and its Order given in open court on August 1, 2003 submitting SB Civil Case No. 0011 for resolution, until further orders from this Court.[16] Petitioner submits that contrary to the ruling of public respondent, resolutions denying admissibility to petitioners documentary exhibits, as well as the subject resolution denying the motion to present additional evidence, were not final orders which may no longer be disturbed. Citing the case of Looyuko v. Court of Appeals,[17] petitioner points out that before judgment is rendered and for good cause shown, the court may still allow the introduction of additional evidence, and that is still within a liberal interpretation of the period for trial. Since no judgment has yet been rendered in SB Civil Case No. 0011, the presentation of additional evidence may still be resolved by public respondent and integrated in the judgment disposing of all the claims in the said case.[18] As to the length of time for the trial of the case, petitioner maintains that it is not fair to attribute delay solely to it; presentation of plaintiffs evidence was only terminated in 2002 when petitioner filed its formal offer of evidence, which public respondent denied. The presentation of additional evidence will not cause substantial injustice to respondent Silverio as these documents and the witnesses to be recalled were all declared in petitioners Pre-Trial Brief, while the testimony in a foreign court is none other than that of respondent Silverio, confirming material facts, which are the subject of SB Civil Case No. 0011. On the other hand, disallowing the presentation of additional evidence would cause undue prejudice to petitioners case.[19] Respondent Silverio reiterates that public respondent did not gravely abuse its discretion in denying petitioners motion which it claims will enable it to present the originals of the exhibits earlier offered for admission but only two (2) actually relates to the exhibits it had already offered in evidence. Public respondent court had denied admission to these two (2) exhibits not only because they violated the Best Evidence Rule but also because they are irrelevant and not properly authenticated. It is argued that the policy of relaxing the technical rules of procedure in cases of recovery of ill-gotten wealth is not a license to disregard the fundamental Rules of Evidence. As to the testimony given by respondent Silverio, petitioner had said that the same was given wayback in 1990 or twelve (12) years ago. Hence, it was available to the Republic long before it drafted its Pre-trial Brief and before it commenced presentation of evidence. Petitioners failure to present the alleged testimony of respondent Silverio is gross and inexcusable negligence and therefore cannot be a ground to reopen the case. Petitioners asseveration that to reopen the proceedings to allow it to present additional evidence would not cause substantial injustice to respondent Silverio cannot be serious. If twenty (20) years of long litigation is not harassment and injustice, respondent Silverio does not know what is. Respondent Silverio also points out that the Republics pre-trial brief dated September 1990 was superseded by the February 23, 1996 Pre-Trial Brief wherein petitioner makes no reference to any of the misfiled documents, and hence petitioner is now precluded from presenting such misfiled documents.[20] We grant the petition.

will render completely ineffective and totally at naught our Resolution denying the admission of these exhibits with all the grounds redoubtable as they are, spelled out in our Resolution. Our Resolution admitting only Exhibits B to E (sic) has long become final and executory and the issues in connection thereto has long been laid to rest. WE cannot allow it to be revived on the
pretext of another motion captioned differently without doing violence to the settled rule of finality of orders or decision. Worse everything would be an endless rigmarole without any end of the proceedings on sight.

Moreover, the documents and proofs alleged in the plaintiffs motion have been existing all along, some in fact as early as fourteen (14) years ago, and after these years of hearing, the

Court cannot just simply brush aside what had been taken up, and on the mere claim that those documents were misfiled and are now ready to be presented, reopen again the proceedings with all the adverse consequences to the time honored orderly presentation of evidence and the universally acclaimed expeditious, speedy and inexpensive disposition of all action[s] and proceedings.
WHEREFORE, for lack of merit, plaintiffs Motion to Reopen Plaintiffs Presentation of Evidence is denied. SO ORDERED.[15] (Italics supplied.)

28

First, on petitioners immediate resort to this Court without filing a motion for reconsideration with the public respondent of the assailed resolution denying its motion to reopen for presentation of additional evidence. As a rule, the special civil action of certiorari under Rule 65 of the 1997 Rules of Civil Procedure, as amended, lies only when the lower court has been given the opportunity to correct the error imputed to it through a motion for reconsideration of the assailed order or resolution.[21] This rule, though, has certain exceptions: (1) when the issue raised is purely of law, (2) when public interest is involved, or (3) in cases of urgency. As a fourth exception, the Court has also ruled that the filing of a motion for reconsideration before availment of the remedy of certiorari is not a sine qua non, when the questions raised are the same as those that have already been squarely argued and exhaustively passed upon by the lower court.[22] Aside from the public interest involved in the recovery of alleged ill-gotten wealth by the Government, it was shown that the issue herein raised by petitioner had already been squarely argued by it and amply discussed by public respondent in its assailed resolution. Hence, the requirement of prior filing of a motion for reconsideration may be dispensed with. Contrary to public respondents posture, its order denying admission to petitioners documentary exhibits, as well as the denial of the motion to reopen for presentation of additional evidence for plaintiff, was merely interlocutory. An order that does not finally dispose of the case, and does not end the Courts task of adjudicating the parties contentions and determining their rights and liabilities as regards each other, but obviously indicates that other things remain to be done by the Court, is interlocutory.[23]

their original case, and its ruling will not be disturbed in the appellate court where no abuse of discretion appears. So, generally, additional evidence is allowed when it is newly discovered, or where it has been omitted through inadvertence or mistake, or where the purpose of the evidence is to correct evidence previously offered.[28]

Considering that petitioner, in requesting to reopen the presentation of additional evidence after it has rested its case, sought to present documentary exhibits consisting of certified copies which had earlier been denied admission for being photocopies, additional documents previously mentioned in its pre-trial brief and new additional evidence material in establishing the main issue of ill-gotten wealth allegedly amassed by the private respondents, singly or collectively, public respondent should have, in the exercise of sound discretion, properly allowed such presentation of additional evidence. Bearing in mind that even if the originals of the documentary exhibits offered as additional evidence have been in the custody of the PCGG since the filing of the complaint or at least at the time of the preparation of its original pre-trial brief in September 1990, public respondent should have duly considered the explanation given by PCGG Commissioner Ruben C. Carranza and PCGG Librarian Ma. Lourdes O. Magno in their respective affidavits[29] attached to the motion, as to the belated discovery of the original documentary evidence which had long been in the possession of PCGG. Given the voluminous documents and papers involved in ill-gotten wealth cases, it was indeed unavoidable that in the course of trial certain documentary exhibits were omitted or unavailable by inadvertence, as what had happened in this case where the subject original documentary evidence were found misfiled in a different case folder. Lamentably, public respondent peremptorily denied petitioners plea for a chance to present additional evidence vital to its case, saying that it cannot just simply brush aside what had been taken up [after these years of hearing], and even alluding to the supposed adverse consequences to the time honored orderly presentation of evidence and the universally acclaimed expeditious, speedy and inexpensive disposition of all action[s] and proceedings. On the other hand, respondent Silverio contended that allowing the motion to reopen would only cause him to suffer further harassment and injustice. However, perusal of the records plainly reveals that petitioner was not responsible for the delay in the prosecution of this case. The protracted litigation was due to the numerous pleadings, postponements and various motions filed by respondents Marcoses. Clearly, public respondents rigid application of the rule on order of trial was arbitrary, improper and in utter disregard of the demands of substantial justice. Executive Order No. 14, series of 1986, issued by former President Corazon C. Aquino, provided that technical rules of procedure and evidence shall not be strictly applied to cases involving ill-gotten wealth. Apropos is our pronouncement in Republic v. Sandiganbayan (Third Division):[30] In all cases involving alleged illgotten wealth brought by or against the Presidential Commission on Good Government, it is the policy of this Court to set aside technicalities and formalities that serve merely to delay or impede their judicious resolution. This Court prefers to have such cases resolved on the merits before the Sandiganbayan. Substantial justice to all parties, not mere legalisms or perfection of form, should now be relentlessly pursued. Eleven years have passed since the government started its search for and reversion of such alleged ill-gotten wealth. The definitive resolution of such cases on the merits is thus long overdue. If there is adequate proof of illegal acquisition, accumulation, 29

Certiorari is an appropriate remedy to assail an interlocutory order (1) when the tribunal issued such order without or in excess of jurisdiction or with grave abuse of discretion; and (2) when the assailed interlocutory order is patently erroneous, and the remedy of appeal would not afford adequate and expeditious relief.[24] Recourse to a petition for certiorari to assail an interlocutory order is now expressly recognized in the ultimate paragraph of Section 1, Rule 41 of the Revised Rules of Court on the subject of appeal, which states:[25]
In all the above instances where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65.

Public respondent seriously erred in denying the motion to reopen for presentation of additional evidence on the basis of the supposed final and executory ruling which denied admission of Exhibits B to E in the Formal Offer of Evidence filed by the petitioner. Admission of additional evidence is addressed to the sound discretion of the trial court. Indeed, in the furtherance of justice, the court may grant the parties the opportunity to adduce additional evidence bearing upon the main issue in question.[26] The remedy of reopening a case for presenting further proofs was meant to prevent a miscarriage of justice.[27] While it is true that the 1997 Rules of Civil Procedure, as amended, prescribed an order of trial (Section 5, Rule 30), relaxation of the rule is permitted in sound discretion of the court. According to Justice Jose Y. Feria in his annotations on civil procedure: After the parties have produced their respective direct proofs, they are allowed to offer rebutting evidence only, but, it has been held, the court, for good reasons in the furtherance of justice, may permit them to offer evidence upon

misappropriation, fraud or illicit conduct, let it be brought out now. Let the titles over these properties be finally determined and quieted down with all reasonable speed, free of delaying technicalities and annoying procedural sidetracks. (Emphasis supplied.)

CONCEPCION CHUA GAW, Petitioner,

G.R. No. 160855 Present: YNARES-SANTIAGO, J.,

- versus -

It was incumbent upon the public respondent to adopt a liberal stance in the matter of procedural technicalities. More so in the instant case where the showing of a prima facie case of ill-gotten wealth was sustained by this Court in Silverio v. Presidential Commission on Good Government in No. L-77645 under the Resolution dated October 26, 1987.[31] Petitioner should be given the opportunity to fully present its evidence and prove that the various business interests of respondent Silverio have enjoyed considerable privileges obtained from [respondent] former President Marcos during [the latters] tenure as Chief Executive in violation of existing laws; privileges which could not have been so obtained were it not for the close association of [Silverio] with the former President.[32] No element of surprise could have been intended in the motion to reopen considering that these documentary exhibits were either certified copies of the originals in the custody of the PCGG, properly identified by the witness who prepared the same (Godofredo dela Paz) and statements under oath from a testimony given before the US District Court by respondent Silverio himself. The term grave abuse of discretion connotes capricious and whimsical exercise of judgment as is equivalent to excess, or a lack of jurisdiction. The abuse must be so patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.[33] Public respondent gravely abused its discretion in disallowing the presentation of additional evidence by the petitioner after the latter made a formal offer of documentary evidence, at the time the respondents had not even commenced the presentation of their evidence. Such arbitrary denial of petitioners motion to reopen for presentation of additional evidence would result in serious miscarriage of justice as it deprives the Republic of the chance to fully prove its case against the respondents and recover what could be illegallygotten wealth. WHEREFORE, the petition is hereby GIVEN DUE COURSE and the writ prayed for accordingly GRANTED. The Resolution dated June 9, 2003 of the Sandiganbayan (Second Division) in SB Civil Case No. 0011 is hereby ANNULLED and SET ASIDE. Said court is hereby DIRECTED to ALLOW the Republic of the Philippines to present additional evidence and recall witnesses as prayed for in its Motion to Reopen Plaintiffs Presentation of Evidence with utmost dispatch. The Temporary Restraining Order issued by this Court on November 10, 2003 is hereby LIFTED and SET ASIDE. No pronouncement as to costs. SO ORDERED.

AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ.

Chairperson,

SUY BEN CHUA and FELISA CHUA, Respondents.

Promulgated: April 16, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION NACHURA, J.: This is a Petition for Review on Certiorari from the Decision[1] of the Court of Appeals (CA) in CA-G.R. CV No. 66790 and Resolution[2] denying the motion for reconsideration. The assailed decision affirmed the ruling of the Regional Trial Court (RTC) in a Complaint for Sum of Money in favor of the plaintiff. The antecedents are as follows: Spouses Chua Chin and Chan Chi were the founders of three business enterprises[3] namely: Hagonoy Lumber, Capitol Sawmill Corporation, and Columbia Wood Industries. The couple had seven children, namely, Santos Chua; Concepcion Chua; Suy Ben Chua; Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. On June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. At the time of Chua Chins death, the net worth of Hagonoy Lumber was P415,487.20.[4] On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of Hereditary Rights in Favor of a Co-Heir[5] (Deed of Partition, for brevity), wherein the heirs settled their interest in Hagonoy Lumber as follows: one-half (1/2) thereof will pertain to the surviving spouse, Chan Chi, as her share in the conjugal partnership; and the other half, equivalent to P207,743.60, will be divided among Chan Chi and the seven children in equal pro indiviso shares equivalent to P25,967.00 each.[6] In said document, Chan Chi and the six children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc Huan. In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua, to lend themP200,000.00 which they will use for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within six (6) months without interest.[7] On June 7, 1988, respondent issued in their favor China Banking Corporation Check No. 240810[8] forP200,000.00 which he delivered to the couples house in Marilao, Bulacan. Antonio later encashed the check. On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent.[9] Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period. Respondent sent the couple a demand letter,[10] dated March 25, 1991, requesting them to settle their obligation with the warning that he will be constrained to take the appropriate legal action if they fail to do so. Failing to heed his demand, respondent filed a Complaint for Sum of Money against the spouses Gaw with the RTC. The complaint alleged that on June 7, 1988, he extended a loan to the spouses Gaw

THIRD DIVISION

30

for P200,000.00, payable within six months without interest, but despite several demands, the couple failed to pay their obligation.[11] In their Answer (with Compulsory Counterclaim), the spouses Gaw contended that the P200,000.00 was not a loan but petitioners share in the profits of Hagonoy Lumber, one of her familys businesses. According to the spouses, when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy Lumber. They claimed that respondent persuaded petitioner to temporarily forego her demand as it would offend their mother who still wanted to remain in control of the family businesses. To insure that she will defer her demand, respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber.[12] In his Reply, respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills Corporation, Columbia Wood Industries, and Hagonoy Lumber. He asserted that the spouses Gaw, in fact, have no right whatsoever in these businesses that would entitle them to an accounting thereof. Respondent insisted that the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber.[13] With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the respondent has arrogated to himself. They claimed that, despite repeated demands, respondent has failed and refused to account for the operations of Hagonoy Lumber and to deliver her share therein. They then prayed that respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6) share thereof, which was estimated to be worth not less than P500,000.00.[14] In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. In turn, he became the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale dated August 1, 1990.[15] Defendants, in their reply,[16] countered that the documents on which plaintiff anchors his claim of ownership over Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties. They claimed that these documents are mere paper arrangements which were prepared only upon the advice of a counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been executed by the heirs.[17] During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. On direct examination, respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. He narrated that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. According to respondent, when he was in high school, it was his father who managed the business but he and his other siblings were helping him. Later, his sister, Chua Sioc Huan, managed Hogonoy Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy Lumber when he was in high school, but he stopped when he got married and found another job. He said that he now owns the lots where Hagonoy Lumber is operating.[18] On cross-examination, respondent explained that he ceased to be a stockholder of Capitol Sawmill when he sold his shares of stock to the other stockholders on January 1, 1991. He further testified that Chua Sioc Huan acquired Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. He, in turn, became the owner of Hagonoy Lumber when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990. [19]

On re-direct examination, respondent stated that he sold his shares of stock in Capitol Sawmill for P254,000.00, which payment he received in cash. He also paid the purchase price of P255,000.00 for Hagonoy Lumber in cash, which payment was not covered by a separate receipt as he merely delivered the same to Chua Sioc Huan at her house in Paso de Blas, Valenzuela. Although he maintains several accounts at Planters Bank, Paluwagan ng Bayan, and China Bank, the amount he paid to Chua Sioc Huan was not taken from any of them. He kept the amount in the house because he was engaged in rediscounting checks of people from the public market. [20] On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure.[21] On February 11, 2000, the RTC rendered a Decision in favor of the respondent, thus: WHEREFORE, in the light of all the foregoing, the Court hereby renders judgement ordering defendant Concepcion Chua Gaw to pay the [respondent] the following: 1. P200,000.00 representing the principal obligation with legal interest from judicial demand or the institution of the complaint onNovember 19, 1991; 2. P50,000.00 as attorneys fees; and 3. Costs of suit. The defendants counterclaim is hereby dismissed for being devoid of merit. SO ORDERED.[22]

The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. It noted that respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the aforesaid amount. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioners advance share in the profits of their parents businesses. The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale, evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never impugned. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception to the best evidence rule. As for the Deed of Sale, since the contents thereof have not been put in issue, the non-presentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents. Also, the parties to the documents themselves do not contest their validity. Ultimately, petitioner failed to establish her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein. As for petitioners claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries, the trial court held that respondent is under no obligation to make such an accounting since he is not charged with operating these enterprises.[23] Aggrieved, petitioner appealed to the CA, alleging that the trial court erred (1) when it considered the amount of P200,000.00 as a loan obligation and not Concepcions share in the profits of Hagonoy Lumber; (2) when it considered as evidence for the defendant, plaintiffs testimony when he was called to testify as an adverse party under Section 10 (e), Rule 132 of the Rules of Court; and (3) when it 31

considered admissible mere copies of the Deed of Partition and Deed of Sale to prove that respondent is now the owner of Hagonoy Lumber.[24] On May 23, 2003, the CA affirmed the Decision of the RTC. [25] The appellate court found baseless the petitioners argument that the RTC should not have included respondents testimony as part of petitioners evidence. The CA noted that the petitioner went on a fishing expedition, the taking of respondents testimony having taken up a total of eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same. Moreover, the CA held that the petitioner failed to show that the inclusion of respondents testimony in the statement of facts in the assailed decision unduly prejudiced her defense and counterclaims. In fact, the CA noted that the facts testified to by respondent were deducible from the totality of the evidence presented. The CA likewise found untenable petitioners claim that Exhibits H (Deed of Sale) and Exhibit I (Deed of Partition) were merely temporary paper arrangements. The CA agreed with the RTC that the testimony of petitioner regarding the matter was uncorroborated she should have presented the other heirs to attest to the truth of her allegation. Instead, petitioner admitted the due execution of the said documents. Since petitioner did not dispute the due execution and existence of Exhibits H and I, there was no need to produce the originals of the documents in accordance with the best evidence rule.[26] On December 2, 2003, the CA denied the petitioners motion for reconsideration for lack of merit.[27] Petitioner is before this Court in this petition for review on certiorari, raising the following errors: I. THAT ON THE PRELIMINARY IMPORTANT RELATED ISSUE, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED IN THE APPLICATION AND LEGAL SIGNIFICANCE OF THE RULE ON EXAMINATION OF ADVERSE PARTY OR HOSTILE WITNESS UNDER SECTION 10 (d) AND (e) OF RULE 132, CAUSING SERIOUS DOUBT ON THE LOWER COURTS APPEALED DECISIONS OBJECTIVITY, ANNEX C. THAT ON THE IMPORTANT LEGAL ISSUE RELATIVE TO THE AFORESAID TWO OPPOSING CLAIMS OF RESPONDENT AND PETITIONER, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED UNDER THE LOWER COURTS DECISION ANNEX C AND THE QUESTIONED DECISION OF MAY 23, 2003 (ANNEX A) AND THE RESOLUTION OF DECEMBER 2, 2003, (ANNEX B) IN DEVIATING FROM AND DISREGARDING ESTABLISHED SUPREME COURT DECISIONS ENJOINING COURTS NOT TO OVERLOOK OR MISINTERPRET IMPORTANT FACTS AND CIRCUMSTANCES, SUPPORTED BY CLEAR AND CONVINCING EVIDENCE ON RECORD, AND WHICH ARE OF GREAT WEIGHT AND VALUE, WHICH WOULD CHANGE THE RESULT OF THE CASE AND ARRIVE AT A JUST, FAIR AND OBJECTIVE DECISION. (Citations omitted) THAT FINALLY, AS TO THE OTHER LEGAL IMPORTANT ISSUE RELATIVE TO

CLAIM OR OWNERSHIP OF THE HAGONOY LUMBER FAMILY BUSINESS, CLEAR AND PALPABLE LEGAL ERROR HAS BEEN COMMITTED ON THE REQUIREMENTS AND CORRECT APPLICATION OF THE BEST EVIDENCE RULE UNDER SECTION 3, RULE 130 OF THE REVISED RULES OF COURT.[28] The petition is without merit. Petitioner contends that her case was unduly prejudiced by the RTCs treatment of the respondents testimony as adverse witness during cross-examination by his own counsel as part of her evidence. Petitioner argues that the adverse witness testimony elicited during cross-examination should not be considered as evidence of the calling party. She contends that the examination of respondent as adverse witness did not make him her witness and she is not bound by his testimony, particularly during cross-examination by his own counsel.[29] In particular, the petitioner avers that the following testimony of the respondent as adverse witness should not be considered as her evidence: (11.a) That RESPONDENT-Appellee became owner of the HAGONOY LUMBER business when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990 (EXH.H); (11.b) That the HAGONOY LUMBER, on the other hand, was acquired by the sister Chua Sioc Huan, by virtue of Extrajudicial Partition and Renunciation of Hereditary Rights in favor of a Co-Heir (EXH. I); (11.c) That the 3 lots on which the HAGONOY LUMBER business is located were acquired by Lu Pieng from the Santos family under the Deed of Absolute Sale (EXH. J); that Lu Pieng sold the Lots to Chua Suy Lu in 1976 (EXHS. K, L, & M.); that Chua Siok Huan eventually became owner of the 3 Lots; and in 1989 Chua Sioc Huan sold them to RESPONDENT-Appellee (EXHS. Q and P); that after he acquired the 3 Lots, he has not sold them to anyone and he is the owner of the lots.[30] We do not agree that petitioners case was prejudiced by the RTCs treatment of the respondents testimony during crossexamination as her evidence. If there was an error committed by the RTC in ascribing to the petitioner the respondents testimony as adverse witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way, change the result of the case. In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. The rule is that the plaintiff must rely on the strength of his own evidence and not upon the weakness of the defendants evidence. Thus, it barely matters who with a piece of evidence is credited. In the end, the court will have to consider the entirety of the evidence presented by both parties. Preponderance of evidence is then determined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it.[31] 32

II.

III.

That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the formers testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party,[32] except by evidence of his bad character.[33] Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted.[34] A party who calls his adversary as a witness is, therefore, not bound by the latters testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on.[35] A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him.[36] This, the petitioner failed to do. In the present case, the petitioner, by her own testimony, failed to discredit the respondents testimony on how Hagonoy Lumber became his sole property. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrangement. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business. Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented.[37] All the parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the evidence.[38] As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered, regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony. Significantly, the RTCs finding that the P200,000.00 was given to the petitioner and her husband as a loan is supported by the evidence on record. Hence, we do not agree with the petitioners contention that the RTC has overlooked certain facts of great weight and value in arriving at its decision. The RTC merely took into consideration evidence which it found to be more credible than the self-serving and uncorroborated testimony of the petitioner. At this juncture, we reiterate the well-entrenched doctrine that the findings of fact of the CA affirming those of the trial court are accorded great respect, even finality, by this Court. Only errors of law, not of fact, may be reviewed by this Court in petitions for review oncertiorari under Rule 45.[39] A departure from the general rule may be warranted where the findings of fact of the CA are contrary to the findings and conclusions of the trial court, or when the same is unsupported by the evidence on record.[40] There is no reason to apply the exception in the instant case because the findings and conclusions of the CA are in full accord with those of the trial court. These findings are buttressed by the evidence on record. Moreover, the issues and errors alleged in this petition are substantially the very same questions of fact raised by petitioner in the appellate court. On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of indebtedness.[41] A check, the entries of which are in writing, could prove a loan transaction.[42] It is pure naivet to insist that an entrepreneur who has several sources of income and has access to

considerable bank credit, no longer has any reason to borrow any amount. The petitioners allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is implausible. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent. However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. By virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. Thus, when the respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the sole owner of Hagonoy Lumber. At that time, both petitioner and respondent no longer had any interest in the business enterprise; neither had a right to demand a share in the profits of the business. Respondent became the sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an advance on petitioners share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber. Even assuming, arguendo, that the check was an advance on the petitioners share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against his personal, and not against the business enterprises account. It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary Public. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity.[43] It is entitled to full faith and credit upon its face.[44] A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law.[45] A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner.[46] Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not the result of bona fide negotiations between a true seller and buyer. The best evidence rule as encapsulated in Rule 130, Section 3,[47] of the Revised Rules of Civil Procedure applies only when thecontent of such document is the subject of the inquiry. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original.[48] Moreover, production of the original may be dispensed with, in the trial courts discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production.[49] Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition.[50] As for the Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically deny it in the manner required by the rules.[51] The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provisional paper arrangements made upon the advice of counsel.[52] Apparently, the petitioner does not contest the contents of these deeds but alleges that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary. 33

An agreement or the contract between the parties is the formal expression of the parties rights, duties and obligations. It is the best evidence of the intention of the parties.[53] The parties intention is to be deciphered from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract.[54] Thus, when the terms of an agreement have been reduced to writing, it is deemed to contain 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.[55] WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. CV No. 66790 datedMay 23, 2003 and Resolution dated December 2, 2003 are AFFIRMED. SO ORDERED. THIRD DIVISION [G.R. No. 107372. January 23, 1997.] RAFAEL S. ORTAEZ, petitioner, vs. THE COURT OF APPEALS, OSCAR INOCENTES, and ASUNCION LLANES INOCENTES, respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; WHEN THE TERMS OF A CONTRACT WERE REDUCED TO WRITING, IT IS DEEMED TO CONTAIN ALL THE TERMS AGREED UPON. 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 unreliable 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. Considering that the written deeds of sale were the only repository of the truth, whatever is not found in said instruments must have been waived and abandoned by the parties. Examining the deeds of sale, we cannot even make an inference that the sale was subject to any condition. As a contract, it is the law between the parties. 2. ID.; ID.; ID.; LAND SETTLEMENT AND DEVELOPMENT CORP. CASE (117 PHIL. [1963], NOT APPLICABLE TO CASE AT BAR. To buttress their argument, private respondents rely on the case of Land Settlement and Development Corp. vs. Garcia Plantation where the Court ruled that a condition precedent to a contract may be established by parol evidence. However, the material facts of the case are different from this case. In the former, the contract sought to be enforced expressly stated that it is subject to an agreement containing the conditions-precedent which were proven through parol evidence. Whereas, the deeds of sale in this case, made no reference to any preconditions or other agreement. In fact, the sale is denominated as absolute in its own terms. 3. ID.; ID.; ID.; CANNOT VARY, CONTRADICT OR DEFEAT THE OPERATION OF A VALID INSTRUMENT. The parol evidence herein sought to be introduced would vary, contradict or defeat the operation of a valid instrument, hence, contrary to the rule that: "The parol evidence rule forbids any addition . . . the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, other or different terms were orally agreed upon by the parties." 4. ID.; ID.; ID.; CANNOT INCORPORATE ADDITIONAL CONTEMPORANEOUS CONDITIONS. Although parol evidence is admissible to explain the meaning of a contract, "it cannot serve the

purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake." No such fraud or mistake exists in this case. 5. ID.; ID.; ID.; INADMISSIBLE WHERE THE CONTRACTS ARE CLEAR AND UNAMBIGUOUS. We disagree with private respondents' argument that their parol evidence is admissible under the exceptions provided by the Rules, specifically, the alleged failure of the agreement to express the true intent of the parties. In this case, the deeds of sale are clear, without any ambiguity, mistake or imperfection, much less obscurity or doubt in the terms thereof. 6. ID.; ID.; ID.; GROUND THEREFOR MUST BE EXPRESSLY PLEADED. We are not persuaded by private respondents' contention that they "put in issue by the pleadings" the failure of the written agreement to express the true intent of the parties. Record shows that private respondents did not expressly plead that the deeds of sale were incomplete or that it did not reflect the intention of the buyer (petitioner) and the seller (private respondents). Such issue must be "squarely presented." Private respondents merely alleged that the sale was subject to four (4) conditions which they tried to prove during trial by parol evidence. Obviously, this cannot be done, because they did not plead any of the exceptions mentioned in the parol evidence rule. Their case is covered by the general rule that the contents of the writing are the only repository of the terms of the agreement. Considering that private respondent Oscar Inocentes is a lawyer (and former Judge) he was "supposed to be steeped in legal knowledge and practices" and was "expected to know the consequences" of his signing a deed of absolute sale. Had he given an iota's attention to scrutinize the deeds, he would have incorporated important stipulations that the transfer of title to said lots were conditional. RESOLUTION FRANCISCO, J p: On September 30, 1982, private respondents sold to petitioner two (2) parcels of registered land in Quezon City for a consideration of P35,000.00 and P20,000.00, respectively. The first deed of absolute sale covering Transfer Certificate of Title (TCT) No. 258628 provides in part: "That for and in consideration of the sum of THIRTY FIVE THOUSAND (P35,000.00) PESOS, receipt of which in full is hereby acknowledged, we have sold, transferred and conveyed, as we hereby sell, transfer and convey, that subdivided portion of the property covered by TCT No. 258628 known as Lot No. 684-G-1-B-2 in favor of RAFAEL S. ORTANEZ, of legal age, Filipino, whose marriage is under a regime of complete separation of property, and a resident of 942 Aurora Blvd., Quezon City, his heirs or assigns." 1 while the second deed of absolute sale covering TCT No. 243273 provides: That for and in consideration of the sum of TWENTY THOUSAND (P20,000.00) PESOS receipt of which in full is hereby acknowledged, we have sold, transferred and conveyed, as we hereby sell, transfer and convey, that consolidated-subdivided portion of the property covered by TCT No. 243273 known as Lot No. 5 in favor of RAFAEL S. ORTAEZ, of legal age, Filipino, whose marriage is under a regime of complete separation of property, and a resident of 942 Aurora Blvd., Cubao, Quezon City his heirs or assigns. 2 Private respondents received the payments for the above-mentioned lots, but failed to deliver the titles to petitioner. On April 9, 1990 the latter demanded from the former the delivery of said titles. 3 Private respondents, however, refused on the ground that the title of the first lot is in the possession of another person, 4 and petitioner's acquisition of the title of the other lot is subject to certain conditions. Offshoot, petitioner sued private respondents for specific performance before the RTC. In their answer with counterclaim private respondents

34

merely alleged the existence of the following oral conditions 5 which were never reflected in the deeds of sale: 6 "3.3.2 Title to the other property (TCT No. 243273) remains with the defendants (private respondents) until plaintiff (petitioner) shows proof that all the following requirements have been met: (i) Plaintiff will cause the segregation of his right of way amounting to 398 sq. m.; (ii) Plaintiff will submit to the defendants the approved plan for the segregation; (iii) Plaintiff will put up a strong wall between his property and that of defendants' lot to segregate his right of way; (iv) Plaintiff will pay the capital gains tax and all other expenses that may be incurred by reason of sale. . . . During trial, private respondent Oscar Inocentes, a former judge, orally testified that the sale was subject to the above conditions, 7 although such conditions were not incorporated in the deeds of sale. Despite petitioner's timely objections on the ground that the introduction of said oral conditions was barred by the parol evidence rule, the lower court nonetheless, admitted them and eventually dismissed the complaint as well as the counterclaim. On appeal, the Court of Appeals (CA) affirmed the court a quo. Hence, this petition. We are tasked to resolve the issue on the admissibility of parol evidence to establish the alleged oral conditions-precedent to a contract of sale, when the deeds of sale are silent on such conditions. 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. 8 Spoken words could be notoriously unreliable unlike a written contract which speaks of a uniform language. 9 Thus, under the general rule in Section 9 of Rule 130 10 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. 11 Considering that the written deeds of sale were the only repository of the truth, whatever is not found in said instruments must have been waived and abandoned by the parties. 12 Examining the deeds of sale, we cannot even make an inference that the sale was subject to any condition. As a contract, it is the law between the parties. 13 Secondly, to buttress their argument, private respondents rely on the case of Land Settlement Development, Co. vs. Garcia Plantation 14 where the Court ruled that a condition precedent to a contract may be established by parol evidence. However, the material facts of that case are different from this case. In the former, the contract sought to be enforced 15 expressly stated that it is subject to an agreement containing the conditions-precedent which were proven through parol evidence. Whereas, the deeds of sale in this case, made no reference to any pre-conditions or other agreement. In fact, the sale is denominated as absolute in its own terms. cdt Third, the parol evidence herein sought to be introduced would vary, contradict or defeat the operation of a valid instrument, 16 hence, contrary to the rule that: The parol evidence rule forbids any addition to . . . the terms of a written instrument by testimony purporting to show that, at or before the signing of the document, other or different terms were orally agreed upon by the parties. 17 Although parol evidence is admissible to explain the meaning of a contract, "it cannot serve the purpose of incorporating into the contract additional contemporaneous conditions which are not mentioned at all in the writing unless there has been fraud or mistake." 18 No such fraud or mistake exists in this case.

Fourth, we disagree with private respondents' argument that their parol evidence is admissible under the exceptions provided by the Rules, specifically, the alleged failure of the agreement to express the true intent of the parties. Such exception obtains only in the following instance: [W]here the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument. In such a case, extrinsic evidence of the subject matter of the contract, of the relations of the parties to each other, and of the facts and circumstances surrounding them when they entered into the contract may be received to enable the court to make a proper interpretation of the instrument. 19 In this case, the deeds of sale are clear, without any ambiguity, mistake or imperfection, much less obscurity or doubt in the terms thereof. Fifth, we are not persuaded by private respondents contention that they "put in issue by the pleadings" the failure of the written agreement to express the true intent of the parties. Record shows 20 that private respondents did not expressly plead that the deeds of sale were incomplete or that it did not reflect the intention 21 of the buyer (petitioner) and the seller (private respondents). Such issue must be "squarely presented." 22 Private respondents merely alleged that the sale was subject to four (4) conditions which they tried to prove during trial by parol evidence. 23 Obviously, this cannot be done, because they did not plead any of the exceptions mentioned in the parol evidence rule. 24 Their case is covered by the general rule that the contents of the writing are the only repository of the terms of the agreement. Considering that private respondent Oscar Inocentes is a lawyer (and former judge) he was "supposed to be steeped in legal knowledge and practices" and was expected to know the consequences" 25 of his signing a deed of absolute sale. Had he given an iota's attention to scrutinize the deeds, he would have incorporated important stipulations that the transfer of title to said lots were conditional. 26 One last thing, assuming arguendo that the parol evidence is admissible, it should nonetheless be disbelieved as no other evidence appears from the record to sustain the existence of the alleged conditions. Not even the other seller, Asuncion Inocentes, was presented to testify on such conditions. ACCORDINGLY, the appealed decision is REVERSED and the records of this case REMANDED to the trial court for proper disposition in accordance with this ruling. SO ORDERED. Narvasa, C .J ., Davide, Jr., Melo and Panganiban, JJ., concur. SECOND DIVISION ADELA G. RAYMUNDO, EDGARDO R. RAYMUNDO, LOURDES R. RAYMUNDO, TERESITA N. RAYMUNDO, EVELYN R. SANTOS, ZENAIDA N. RAYMUNDO, LUIS N. RAYMUNDO, JR. and LUCITA R. DELOS REYES, Petitioners, G.R. No. 171036 Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ.

- versus ERNESTO LUNARIA, ROSALINDA Promulgated: RAMOS and HELEN MENDOZA, Respondents. October 17, 2008 x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

35

DECISION QUISUMBING, J.: Assailed in this petition for review are the Court of Appeals Decision[1] dated October 10, 2005 and the Resolution[2] dated January 10, 2006 in CA-G.R. CV No. 75593. The facts in this case are as follows: Sometime in May 1996, petitioners approached respondent Lunaria to help them find a buyer for their property situated at Marilao, Bulacan with an area of 12,126 square meters for the amount of P60,630,000. Respondent Lunaria was promised a 5% agents commission in the event that he finds a buyer. After respondents found a buyer, Cecilio Hipolito, an Exclusive Authority to Sell[3] was executed embodying the agreement made by the parties. After the corresponding Deed of Absolute Sale of Real Property[4] was registered in the Registry of Deeds, a copy thereof was given to the Far East Bank and Trust Co., which was then holding in escrow the amount of P50,000,000 to be disbursed or paid against the total consideration or price of the property. On February 14, 1997, Ceferino G. Raymundo, one of the coowners, advised respondents to go to the bank to receive the amount ofP1,196,000 as partial payment of their total commission. Also, respondents were instructed to return after seven days to get the balance of the commission due them. On February 21, 1997, respondents returned to the bank. However, the check covering the balance of their commission was already given by the bank manager to Lourdes R. Raymundo, the representative of the petitioners. Respondents tried to get the check from the petitioners, however, they were told that there is nothing more due them by way of commission as they have already divided and distributed the balance of the commissions among their nephews and nieces. For their part, petitioners counter that there was a subsequent verbal agreement entered into by the parties after the execution of the written agreement. Said verbal agreement provides that the 5% agents commission shall be divided as follows: 2/5 for the agents, 2/5 for LourdesRaymundo, and 1/5 for the buyer, Hipolito. The share given to Lourdes Raymundo shall be in consideration for the help she would extend in the processing of documents of sale of the property, the payment of the capital gains tax to the Bureau of Internal Revenue and in securing an order from the court. The 1/5 commission given to Hipolito, on the other hand, will be used by him for the payment of realty taxes. Hence, for failure of the respondents to receive the balance of their agents commission, they filed an action for the collection of a sum of money before the Regional Trial Court of Valenzuela City, Branch 172. On January 22, 2002, the trial court rendered a Decision[5] in favor of the respondents. The dispositive portion of said decision reads: WHEREFORE, rendered as follows: judgment is hereby

SO ORDERED.[6]

Aggrieved, petitioners appealed. In a Decision dated October 10, 2005, the Court of Appeals affirmed the decision of the trial court with the modification that the amount of moral and exemplary damages awarded to respondents shall be reduced. The dispositive portion reads: WHEREFORE, the appealed Decision dated January 22, 2002 is affirmed, subject to the modification that the award of moral damages is reduced to P50,000.00 and exemplary damages to P25,000.00. SO ORDERED.[7]

On October 28, 2005, petitioners filed a Motion for Reconsideration.[8] However, it was denied in a Resolution dated January 10, 2006. Hence, the instant petition raising the following issues: I. THE HONORABLE COURT SERIOUSLY ERRED IN APPLYING THE PAROLE EVIDENCE RULE IN THIS CASE (DECISION, PAGE 7,PARAGRAPH 1). THIS PRINCIPLE HAS NO APPLICATION TO THE FACTS OF THE INSTANT CASE. II. FURTHER, IT ERRED IN REQUIRING, ALBEIT IMPLICITLY, THE PETITIONERS TO ESTABLISH THE VERBAL AGREEMENT MODIFYING THE EARLIER WRITTEN AGREEMENT (THE EXCLUSIVE AUTHORITY TO SELL) BY MORE THAN A PREPONDERANCE OF EVIDENCE (DECISION, PAGE 8). THIS IS PLAINLY CONTRARY TO LAW THAT MERELY REQUIRES PREPONDERANCE OF EVIDENCE IN CIVIL CASES. III. FINALLY, EVEN CONCEDING FOR THE SAKE OF ARGUMENT THAT PETITIONERS STILL OWE THE RESPONDENTS THE BALANCE OF THEIR COMMISSION, THE HONORABLE COURT ERRED IN RULING THE PETITIONERS ARE EACH JOINTLY AND SEVERALLY[LIABLE] FOR THE PAYMENT OF THE ENTIRE BROKERS FEES. THIS RULING HAS NO LEGAL BASIS AND IS CONTRARY TO ART. 1207 OF THE NEW CIVIL CODE.[9]

1) Ordering the defendants, jointly and severally, to pay the plaintiffs the amount of P1,834,900.00, representing the unpaid commission, plus interest thereon at the legal rate from the filing of this case until fully paid; 2) Ordering the defendants to, jointly and severally, pay the plaintiffs the amount of P200,000.00 as moral damages and the amount ofP100,000.00 as exemplary damages; and 3) Ordering the defendants [to], jointly and severally, pay the plaintiffs the amount of P150,000.00 as attorneys fees, plus the costs of suit.

Plainly stated, the issues for resolution are: Did the Court of Appeals err (1) in applying the parol evidence rule; (2) in requiring petitioners to establish their case by more than a preponderance of evidence; and (3) in holding petitioners jointly and severally liable for the payment of the entire brokers fees? Anent the first issue, petitioners contend that the Court of Appeals erred in applying the parol evidence rule to the facts of the case because the verbal agreement was entered into subsequent to the written agreement. Further, they aver that there is no rule that requires an agreement modifying an earlier agreement to be in the same form as the earlier agreement in order for such modification or amendment to be valid.

36

Conversely, respondents argue that the Court of Appeals did not apply the parol evidence rule in this case. Although the appellate court stated and emphasized the general legal principle and rule on parol evidence, it did not apply the parol evidence rule with regard to the evidence adduced by the petitioners. We rule for the respondents. To begin with, we agree with petitioners claim that the parol evidence rule does not apply to the facts of this case. First, the 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.[10] Notably, the claimed verbal agreement was agreed upon not prior to but subsequent to the written agreement. Second, the validity of the written agreement is not the matter which is being put in issue here. What is questioned is the validity of the claim that a subsequent verbal agreement was agreed upon by the parties after the execution of the written agreement which substantially modified their earlier written agreement. Nonetheless, even if we apply the parol evidence rule in this case, the evidence presented by the petitioners fell short in proving that a subsequent verbal agreement was in fact entered into by the parties. We subscribe to the findings of both the trial court and the appellate court that the evidence presented by petitioners did not establish the existence of the alleged subsequent verbal agreement. As pointed out by the trial court: Note that no written evidence was presented by the defendants to show that the plaintiffs [herein respondents] agreed to the above-sharing of the commission. The fact is that the plaintiffs are denying having ever entered into such sharing agreement. For if the plaintiffs as sales agents indeed agreed to share the commission they are entitled to receive by virtue of the Exclusive Authority to Sell with Lourdes G. Raymundo and Hipolito, it passes understanding why no written agreement to that effect was ever made. The absence of such written agreement is mute but telling testimony that no such sharing arrangement was ever made.[11] As to the second issue, petitioners contend that the appellate court erred in requiring them to prove the existence of the subsequent verbal agreement by more than a mere preponderance of evidence since no rule of evidence requires them to do so. In support of this allegation, petitioners presented petitioner Lourdes Raymundo who testified that she was given 2/5 share of the commission pursuant to the verbal sharing scheme because she took care of the payment of the capital gains tax, the preparation of the documents of sale and of securing an authority from the court to sell the property. For their part, respondents counter that the appellate court did not require petitioners to prove the existence of the subsequent oral agreement by more than a mere preponderance of evidence. What the appellate court said is that the petitioners failed to prove and establish the alleged subsequent verbal agreement even by mere preponderance of evidence. Petitioners abovecited allegation has no merit. By preponderance of evidence is meant that the evidence as a whole adduced by one side is superior to that of the other.[12] It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term greater weight of evidence or greater weight of the credible evidence. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.[13]

Both the appellate court and trial court ruled that the evidence presented by the petitioners is not sufficient to support their allegation that a subsequent verbal agreement was entered into by the parties. In fact, both courts correctly observed that if Lourdes Raymundo was in reality offered the 2/5 share of the agents commission for the purpose of assisting respondent Lunaria in the documentation requirement, then why did the petitioners not present any written court order on her authority, tax receipt or sales document to support her self-serving testimony? Moreover, even the worksheet allegedly reflecting the commission sharing was unilaterally prepared by petitioner Lourdes Raymundo without any showing that respondents participated in the preparation thereof or gave their assent thereto. Even the alleged payment of 1/5 of the commission to the buyer to be used in the payment of the realty taxes cannot be given credence since the payment of realty taxes is the obligation of the owners, and not the buyer. Lastly, if the said sharing agreement was entered into pursuant to the wishes of the buyer, then he should have been presented as witness to corroborate the claim of the petitioners. However, he was not. As to the third issue, petitioners contend that the appellate court erred in holding that the petitioners were each jointly and severally liable for the payment of the brokers fees. They contend that the Civil Code provides that unless the parties have expressly agreed to be jointly and severally liable for the entire brokers fees, each of the petitioners should only be held liable to the extent of their proindiviso share in the property sold. For their part, respondents argue that the appellate court did not err in affirming the joint and several liability of the petitioners. They aver that if there was error on the part of the trial court, it was not raised or assigned as error by petitioners in their appeal. It was also not included in the Statement of Issues in their brief which they submitted for resolution by the Court of Appeals. In fact, the same was never mentioned, much less questioned, by petitioners in their brief. On this score, we agree with respondents. The general rule is that once an issue has been adjudicated in a valid final judgment of a competent court, it can no longer be controverted anew and should be finally laid to rest.[14] In this case, petitioners failed to address the issue on their solidary liability when they appealed to the Court of Appeals. They are now estopped to question that ruling. As to them, the issue on their liability is already valid and binding. WHEREFORE, the petition is DENIED for lack of merit. The Decision dated October 10, 2005 and the Resolution dated January 10, 2006 of the Court of Appeals in CA-G.R. CV No. 75593 are AFFIRMED. Costs against petitioners. SO ORDERED.

Republic of the Philippines SUPREME COURT Baguio City SECOND DIVISION

G.R. No. 103066 April 25, 1996 WILLEX PLASTIC INDUSTRIES, CORPORATION, petitioner, vs. HON. COURT OF APPEALS and INTERNATIONAL CORPORATE BANK, respondents.

37

complaint because of some payments made by the former; MENDOZA, J.:p This is a petition for review on certiorari of the decision 1 of the Court of Appeals in C.A.-G.R. CV No. 19094, affirming the decision of the Regional Trial Court of the National Capital Judicial Region, Branch XLV, Manila, which ordered petitioner Willex Plastic Industries Corporation and the Inter-Resin Industrial Corporation, jointly and severally, to pay private respondent International Corporate Bank certain sums of money, and the appellate court's resolution of October 17, 1989 denying petitioner's motion for reconsideration. The facts are as follows: Sometime in 1978, Inter-Resin Industrial Corporation opened a letter of credit with the Manila Banking Corporation. To secure payment of the credit accomodation, Inter-Resin Industrial and the Investment and Underwriting Corporation of the Philippines (IUCP) executed two documents, both entitled "Continuing Surety Agreement" and dated December 1, 1978, whereby they bound themselves solidarily to pay Manilabank "obligations of every kind, on which the [Inter-Resin Industrial] may now be indebted or hereafter become indebted to the [Manilabank]." The two agreements (Exhs. J and K) are the same in all respects, except as to the limit of liability of the surety, the first surety agreement being limited to US$333,830.00, while the second one is limited to US$334,087.00. On April 2, 1979, Inter-Resin Industrial, together with Willex Plastic Industries Corp., executed a "Continuing Guaranty" in favor of IUCP whereby "For and in consideration of the sum or sums obtained and/or to be obtained by Inter-Resin Industrial Corporation" from IUCP, InterResin Industrial and Willex Plastic jointly and severally guaranteed "the prompt and punctual payment at maturity of the NOTE/S issued by the DEBTOR/S . . . to the extent of the aggregate principal sum of FIVE MILLION PESOS (P5,000,000.00) Philippine Currency and such interests, charges and penalties as hereafter may be specified." On January 7, 1981, following demand upon it, IUCP paid to Manilabank the sum of P4,334,280.61 representing Inter-Resin Industrial's outstanding obligation. (Exh. M-1) On February 23 and 24, 1981, Atrium Capital Corp., which in the meantime had succeeded IUCP, demanded from Inter-Resin Industrial and Willex Plastic the payment of what it (IUCP) had paid to Manilabank. As neither one of the sureties paid, Atrium filed this case in the court below against Inter-Resin Industrial and Willex Plastic. On August 11, 1982, Inter-Resin Industrial paid Interbank, which had in turn succeeded Atrium, the sum of P687,600.00 representing the proceeds of its fire insurance policy for the destruction of its properties. In its answer, Inter-Resin Industrial admitted that the "Continuing Guaranty" was intended to secure payment to Atrium of the amount of P4,334,280.61 which the latter had paid to Manilabank. It claimed, however, that it had already fully paid its obligation to Atrium Capital. On the other hand, Willex Plastic denied the material allegations of the complaint and interposed the following Special Affirmative Defenses: (a) Assuming arguendo that main defendant is indebted to plaintiff, the former's liability is extinguished due to the accidental fire that destroyed its premises, which liability is covered by sufficient insurance assigned to plaintiff; (b) Again, assuming arguendo, that the main defendant is indebted to plaintiff, its account is now very much lesser than those stated in the (c) The complaint states no cause of action against WILLEX; (d) WLLLEX is only a guarantor of the principal obliger, and thus, its liability is only secondary to that of the principal; (e) Plaintiff failed to exhaust the ultimate remedy in pursuing its claim against the principal obliger; (f) Plaintiff has no personality to sue. On April 29, 1986, Interbank was substituted as plaintiff in the action. The case then proceeded to trial. On March 4, 1988, the trial court declared Inter-Resin Industrial to have waived the right to present evidence for its failure to appear at the hearing despite due notice. On the other hand, Willex Plastic rested its case without presenting any evidence. Thereafter Interbank and Willex Plastic submitted their respective memoranda. On April 5, 1988, the trial court rendered judgment, ordering InterResin Industrial and Willex Plastic jointly and severally to pay to Interbank the following amounts: (a) P3, 646,780.61, representing their indebtedness to the plaintiff, with interest of 17% per annumfrom August 11, 1982, when Inter-Resin Industrial paid P687,500.00 to the plaintiff, until full payment of the said amount; (b) Liquidated damages equivalent to 178 of the amount due; and (c) Attorney's fees and expenses of litigation equivalent to 208 of the total amount due. Inter-Resin Industrial and Willex Plastic appealed to the Court of Appeals. Willex Plastic filed its brief, while Inter-Resin Industrial presented a "Motion to Conduct Hearing and to Receive Evidence to Resolve Factual Issues and to Defer Filing of the Appellant's Brief." After its motion was denied, Inter-Resin Industrial did not file its brief anymore. On February 22, 1991, the Court of Appeals rendered a decision affirming the ruling of the trial court. Willex Plastic filed a motion for reconsideration praying that it be allowed to present evidence to show that Inter-Resin Industrial had already paid its obligation to Interbank, but its motion was denied on December 6, 1991: The motion is denied for lack of merit. We denied defendant-appellant Inter-Resin Industrial's motion for reception of evidence because the situation or situations in which we could exercise the power under BP 129 did not exist. Movant here has not presented any argument which would show otherwise. Hence, this petition by Willex Plastic for the review of the decision of February 22, 1991 and the resolution of December 6, 1991 of the Court of Appeals.

38

Petitioner raises a number of issues. [1] The main issue raised is whether under the "Continuing Guaranty" signed on April 2, 1979 petitioner Willex Plastic may be held jointly and severally liable with Inter-Resin Industrial for the amount paid by Interbank to Manilabank. As already stated, the amount had been paid by Interbank's predecessor-in-interest, Atrium Capital, to Manilabank pursuant to the "Continuing Surety Agreements" made on December 1, 1978. In denying liability to Interbank for the amount, Willex Plastic argues that under the "Continuing Guaranty," its liability is for sums obtained by Inter-Resin Industrial from Interbank, not for sums paid by the latter to Manilabank for the account of Inter-Resin Industrial. In support of this contention Willex Plastic cites the following portion of the "Continuing Guaranty":

It has been held that explanatory evidence may be received to show the circumstances under which a document has been made and to what debt it relates. 4 At all events, Willex Plastic cannot now claim that its liability is limited to any amount which Interbank, as creditor, might give directly to Inter-Resin Industrial as debtor because, by failing to object to the parol evidence presented, Willex Plastic waived the protection of the parol evidence rule. 5 Accordingly, the trial court found that it was "to secure the guarantee made by plaintiff of the credit accommodation granted to defendant IRIC [Inter-Resin Industrial] by Manilabank, [that] the plaintiff required defendant IRIC to execute a chattel mortgage in its favor and a Continuing Guaranty which was signed by the defendant Willex Plastic Industries Corporation." 6 Similarly, the Court of Appeals found it to be an undisputed fact that "to secure the guarantee undertaken by plaintiff-appellee [Interbank] of the credit accommodation granted to Inter-Resin Industrial by Manilabank, plaintiff-appellee required defendant-appellants to sign a Continuing Guaranty." These factual findings of the trial court and of the Court of Appeals are binding on us not only because of the rule that on appeal to the Supreme Court such findings are entitled to great weight and respect but also because our own examination of the record of the trial court confirms these findings of the two courts. 7 Nor does the record show any other transaction under which InterResin Industrial may have obtained sums of money from Interbank. It can reasonably be assumed that Inter-Resin Industrial and Willex Plastic intended to indemnify Interbank for amounts which it may have paid Manilabank on behalf of Inter-Resin Industrial. Indeed, in its Petition for Review in this Court, Willex Plastic admitted that it was "to secure the aforesaid guarantee, that INTERBANK required principal debtor IRIC [Inter-Resin Industrial] to execute a chattel mortgage in its favor, and so a "Continuing Guaranty" was executed on April 2, 1979 by WILLEX PLASTIC INDUSTRIES CORPORATION (WILLEX for brevity) in favor of INTERBANK for and in consideration of the loan obtained by IRIC [Inter-Resin Industrial]." [2] Willex Plastic argues that the "Continuing Guaranty," being an accessory contract, cannot legally exist because of the absence of a valid principal obligation. 8 Its contention is based on the fact that it is not a party either to the "Continuing Surety Agreement" or to the loan agreement between Manilabank and Interbank Industrial. Put in another way the consideration necessary to support a surety obligation need not pass directly to the surety, a consideration moving to the principal alone being sufficient. For a "guarantor or surety is bound by the same consideration that makes the contract effective between the principal parties thereto. It is never necessary that a guarantor or surety should receive any part or benefit, if such there be, accruing to his principal." 9 In an analogous case, 10 this Court held: At the time the loan of P100,000.00 was obtained from petitioner by Daicor, for the purpose of having an additional capital for buying and selling coco-shell charcoal and importation of activated carbon, the comprehensive surety agreement was admittedly in full force and effect. The loan was, therefore, covered by the said agreement, and private respondent, even if he did not sign the promissory note, is liable by virtue of the surety agreement. The only condition that would make him liable thereunder is that the Borrower "is or may become liable as maker, endorser, acceptor or otherwise." There is no doubt that Daicor is liable on the promissory note evidencing the indebtedness.

For and in consideration of the sums obtained and/or to be obtained by INTER-RESIN INDUSTRIAL CORPORATION, hereinafter referred to as the DEBTOR/S, from you and/or your
principal/s as may be evidenced by promissory note/s, checks, bills receivable/s and/or other evidence/s of indebtedness (hereinafter referred to as the NOTE/S), I/We hereby jointly and severally and unconditionally guarantee unto you and/or your principal/s, successor/s and assigns the prompt and punctual payment at maturity of the NOTE/S issued by the DEBTOR/S in your and/or your principal/s, successor/s and assigns favor to the extent of the aggregate principal sum of FIVE MILLION PESOS (P5,000,000.00), Philippine Currency, and such interests, charges and penalties as may hereinafter be specified. The contention is untenable. What Willex Plastic has overlooked is the fact that evidence aliunde was introduced in the trial court to explain that it was actually to secure payment to Interbank (formerly IUCP) of amounts paid by the latter to Manilabank that the "Continuing Guaranty" was executed. In its complaint below, Interbank's predecessor-in-interest, Atrium Capital, alleged: 5. to secure the guarantee made by plaintiff of the credit accommodation granted to defendant IRIC [Inter-Resin Industrial] by Manilabank, the plaintiff required defendant IRIC [Inter-Resin Industrial] to execute a chattel mortgage in its favor and a Continuing Guaranty which was signed by the other defendant WPIC [Willex Plastic]. In its answer, Inter-Resin Industrial admitted this allegation although it claimed that it had already paid its obligation in its entirety. On the other hand, Willex Plastic, while denying the allegation in question, merely did so "for lack of knowledge or information of the same." But, at the hearing of the case on September 16, 1986, when asked by the trial judge whether Willex Plastic had not filed a crossclaim against Inter-Resin Industrial, Willex Plastic's counsel replied in the negative and manifested that "the plaintiff in this case [Interbank] is the guarantor and my client [Willex Plastic] only signed as a guarantor to the guarantee." 2 For its part Interbank adduced evidence to show that the "Continuing Guaranty" had been made to guarantee payment of amounts made by it to Manilabank and not of any sums given by it as loan to Inter-Resin Industrial. Interbank's witness testified under cross examination by counsel for Willex Plastic that Willex "guaranteed the exposure/of whatever exposure of ACP [Atrium Capital] will later be made because of the guarantee to Manila Banking Corporation." 3

39

The surety agreement which was earlier signed by Enrique Go, Sr. and private respondent, is an accessory obligation, it being dependent upon a principal one which, in this case is the loan obtained by Daicor as evidenced by a promissory note. [3] Willex Plastic contends that the "Continuing Guaranty" cannot be retroactivelt applied so as to secure payments made by Interbank under the two "Continuing Surety Agreements." Willex Plastic invokes the ruling in El Vencedor v. Canlas 11 and Dio v. Court of Appeals 12 in support of its contention that a contract of suretyship or guaranty should be applied prospectively. The cases cited are, however, distinguishable from the present case. In El Vencedor v. Canlas we held that a contract of suretyship "is not retrospective and no liability attaches for defaults occurring before it is entered into unless an intent to be so liable is indicated." There we found nothing in the contract to show that the paries intended the surety bonds to answer for the debts contracted previous to the execution of the bonds. In contrast, in this case, the parties to the "Continuing Guaranty" clearly provided that the guaranty would cover "sumsobtained and/or to be obtained" by Inter-Resin Industrial from Interbank. On the other hand, in Dio v. Court of Appeals the issue was whether the sureties could be held liable for an obligation contracted after the execution of the continuing surety agreement. It was held that by its very nature a continuing suretyship contemplates a future course of dealing. "It is prospective in its operation and is generallyintended to provide security with respect to future transactions." By no means, however, was it meant in that case that in all instances a contrast of guaranty or suretyship should be prospective in application. Indeed, as we also held in Bank of the Philippine Islands v. Foerster, 13 although a contract of suretyship is ordinarily not to be construed as retrospective, in the end the intention of the parties as revealed by the evidence is controlling. What was said there 14 applies mutatis mutandis to the case at bar: In our opinion, the appealed judgment is erroneous. It is very true that bonds or other contracts of suretyship are ordinarily not to be construed as retrospective, but that rule must yield to the intention of the contracting parties as revealed by the evidence, and does not interfere with the use of the ordinary tests and canons of interpretation which apply in regard to other contracts. In the present case the circumstances so clearly indicate that the bond given by Echevarria was intended to cover all of the indebtedness of the Arrocera upon its current account with the plaintiff Bank that we cannot possibly adopt the view of the court below in regard to the effect of the bond. [4] Willex Plastic says that in any event it cannot be proceeded against without first exhausting all property of Inter-Resin Industrial. Willex Plastic thus claims the benefit of excussion. The Civil Code provides, however: Art. 2059. This excussion shall not take place: (1) If the guarantor has expressly renounced it; (2) If he has bound himself solidarily with the debtor;

The pertinent portion of the "Continuing Guaranty" executed by Willex Plastic and Inter-Resin Industrial in favor of IUCP (now Interbank) reads: If default be made in the payment of the NOTE/s herein guaranteed you and/or your principal/s may directly proceed against Me/Us without first

proceeding against and exhausting DEBTOR/s propertiesin the same manner as if all such
liabilities constituted My/Our direct and primary obligations. (emphasis supplied)

This stipulation embodies an express renunciation of the right of excussion. In addition, Willex Plastic bound itself solidarily liable with Inter-Resin Industrial under the same agreement: For and in consideration of the sums obtained and/or to be obtained by INTER-RESIN INDUSTRIAL CORPORATION, hereinafter referred to as the DEBTOR/S, from you and/or your principal/s as may be evidenced by promissory note/s, checks, bills receivable/s and/or other evidence/s of indebtedness (hereinafter referred to as the NOTE/S), I/We hereby jointly and assigns the prompt and punctual payment at maturity of the NOTE/S issued by the DEBTOR/S in your and/or your principal/s, successor/s and assigns favor to the extent of the aggregate principal sum of FIVE MILLION PESOS (P5,000,000.00), Philippine Currency, and such interests, charges and penalties as may hereinafter he specified. [5] Finally it is contended that Inter-Resin Industrial had already paid its indebtedness to Interbank and that Willex Plastic should have been allowed by the Court of Appeals to adduce evidence to prove this. Suffice it to say that Inter-Resin Industrial had been given generous opportunity to present its evidence but it failed to make use of the same. On the otherhand, Willex Plastic rested its case without presenting evidence. The reception of evidence of Inter-Resin Industrial was set on January 29, 1987, but because of its failure to appear on that date, the hearing was reset on March 12, 26 and April 2, 1987. On March 12, 1987 Inter-Resin Industrial again failed to appear. Upon motion of Willex Plastic, the hearings on March 12 and 26, 1987 were cancelled and "reset for the last time" on April 2 and 30, 1987. On April 2, 1987, Inter-Resin Industrial again failed to appear. Accordingly the trial court issued the following order: Considering that, as shown by the records, the Court had exerted every earnest effort to cause the service of notice or subpoena on the defendant Inter-Resin Industrial but to no avail, even with the assistance of the defendant Willex the defendant Inter-Resin Industrial is hereby deemed to have waived the right to present its evidence. On the other hand, Willex Plastic announced it was resting its case without presenting any evidence. Upon motion of Inter-Resin Industrial, reconsidered its order and set the hearing Inter-Resin Industrial again moved for hearing be postponed to August 11, 1987. however, the trial court anew on July 23, 1987. But the postponement of the The hearing was, therefore, 40

severally and unconditionally guarantee unto you and/or your principal/s, successor/s and

reset on September 8 and 22, 1987 but the hearings were reset on October 13, 1987, this time upon motion of Interbank. To give Interbank time to comment on a motion filed by Inter-Resin Industrial, the reception of evidence for Inter-Resin Industrial was again reset on November 17, 26 and December 11, 1987. However, Inter-Resin Industrial again moved for the postponement of the hearing. Accordingly the hearing was reset on November 26 and December 11, 1987, with warning that the hearings were intransferrable. Again, the reception of evidence for Inter-Resin Industrial was reset on January 22, 1988 and February 5, 1988 upon motion of its counsel. As Inter-Resin Industrial still failed to present its evidence, it was declared to have waived its evidence. To give Inter-Resin Industrial a last opportunity to present its evidence, however, the hearing was postponed to March 4, 1988. Again Inter-Resin Industrial's counsel did not appear. The trial court, therefore, finally declared Inter-Resin Industrial to have waived the right to present its evidence. On the other hand, Willex Plastic, as before, manifested that it was not presenting evidence and requested instead for time to file a memorandum. There is therefore no basis for the plea made by Willex Plastic that it be given the opportunity of showing that Inter-Resin Industrial has already paid its obligation to Interbank. WHEREFORE, the decision of the Court of Appeals is AFFIRMED, with costs against the petitioner. SO ORDERED.

1. To Benedicta T. Cabahug, Lot A subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NW. boundary in favor of Lots B, E, and D, of the subdivision; 2. To Eduardo Ceniza, Lot B subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lots A, D & E of the subdivision; 3. To Carlos Ceniza, Lot C;

4. To Guillermo Ceniza Jr., Lot D subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its NE. boundary in favor of Lot B and E of the subdivision; and 5. To Victoria Ceniza, Lot E, subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lot D of the subdivision.[1] Lots A, B, and C were adjacent to a city street. But Lots D and E were not, they being interior lots. To give these interior lots access to the street, the heirs established in their extrajudicial partition an easement of right of way consisting of a 3-meter wide alley between Lots D and E that continued on between Lots A and B and on to the street. The partition that embodied this easement of right of way was annotated on the individual titles issued to the heirs. Roughly, the lots including the easement of right of way would take the following configurations,[2] not drawn here to accurate size and proportion but illustrative of their relative locations: But, realizing that the partition resulted in an unequal division of the property, the heirs modified their agreement by eliminating the easement of right of way along Lots A, D, and E, and in its place, imposed a 3-meter wide alley, an easement of right of way, that ranexclusively along the southwest boundary of Lot B from Lots D and E to the street.[3] Thus: Victoria (now petitioner Victoria Salimbangon) later swapped lots with Benedicta with the result that Victoria became the owner of Lot A, one of the three lots adjacent to the city street. Victoria and her husband (the Salimbangons) constructed a residential house on this lot and built two garages on it. One garage abutted the street while the other, located in the interior of Lot A, used the alley or easement of right of way existing on Lot B to get to the street. Victoria had this alley cemented and gated. Subsequently, however, respondent spouses Santos and Erlinda Tan (the Tans) bought Lots B, C, D, and E from all their owners. The Tans built improvements on Lot B that spilled into the easement area. They also closed the gate that the Salimbangons built. Unable to use the old right of way, the Salimbangons lodged a complaint with the City Engineer of Mandaue against the Tans. For their part, the Tans filed an action with the Regional Trial Court (RTC) of Mandaue against the Salimbangons in Civil Case MAN-3223 for the extinguishment of the easement on Lot B and damages with application for preliminary injunction.[4] The Salimbangons filed their answer with counterclaims. After hearing or on February 9, 2001 the RTC rendered judgment, upholding the Salimbangons easement of right of way over the alley on Lot B, the lot that belonged to the Tans. The court pointed out that the easement in this case was established by agreement of the parties for the benefit of Lots A, D, and E. Consequently, only by mutual agreement of the parties could such 41

Regalado, Romero, Puno and Torres, Jr., JJ., concur.


SECOND DIVISION SPS. MANUEL AND VICTORIA SALIMBANGON, Petitioners, Chairperson, - versus G.R. No. 185240 Present: Carpio, J., Brion,

Del Castillo, Abad, and Perez, JJ. SPS. SANTOS AND ERLINDA TAN, Respondents. Promulgated: January 20, 2010 x -------------------------------------------------------------------------------------- x

DECISION
ABAD, J.: This case is about the admissibility of testimony that tends to modify a written agreement among the parties and the extinction of the easement of right of way upon consolidation in one person of the ownership of the dominant and the servient estates. The Facts and the Case Guillermo Ceniza died intestate on July 11, 1951, leaving a parcel of land at Poblacion, Mandaue City. Twenty years later on July 17, 1973 his children Benedicta, Guillermo, Jr., Victoria, Eduardo, and Carlos executed an extrajudicial declaration of heirs and partition, adjudicating and dividing the land among themselves as follows:

easement be extinguished. The RTC declined, however, to award damages to the Salimbangons. Both parties appealed to the Court of Appeals (CA) in CAG.R. CV 73468. On July 27, 2007 the CA[5] reversed the RTC decision, extinguished the easement of right of way established on the alley in Lot B of the Tans, and denied the Salimbangons claim for damages. The court ruled that based on the testimony of one of the previous owners, Eduardo Ceniza, the true intent of the parties was to establish that easement of right of way for the benefit of the interior lots, namely, Lots D and E. Consequently, when ownership of Lots B, D, and E was consolidated into the Tans, the easement ceased to have any purpose and became extinct. The Salimbangons filed a motion for reconsideration but the CA denied the same in its resolution of October 14, 2008. This prompted them to file the present petition. Questions Presented Two questions are presented: 1. Whether or not the CA erred in admitting in evidence contrary to the parol evidence rule Eduardo Cenizas testimony respecting the true intent of the heirs in establishing the easement of right of way as against what they stated in their written agreement; and 2. Whether or not the CA erred in ruling that the easement of right of way established by the partition agreement among the heirs for the benefit of Lot A has been extinguished. The Courts Ruling One. The Salimbangons point out that the CA ought to have rejected Eduardo Cenizas testimony that the heirs had intended to establish the easement of right of way solely for the benefit of the interior Lots D and E which had no access to the city street. The partition agreement also made Lot A, now owned by the Salimbangons, a beneficiary of that easement. Thus: 2. To Eduardo Ceniza [now the Tans], Lot B subject to a perpetual and grat[u]itous road right of way 1.50 m. wide along its SW. boundary in favor of Lots A, D & E of the subdivision;[6] (Underscoring supplied) The parol evidence rule, said the Salimbangons, precluded the parties from introducing testimony that tended to alter or modify what the parties had agreed on above. But the exclusionary provision of the parol evidence rule admits of exceptions. Section 9, Rule 130 of the Revised Rules on Evidence states: Sec. 9. Evidence of written agreements. - When the terms of an

(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. The term agreement includes wills. (7a) Here, the Tans had put in issue the true intent and agreement of the parties to the partition when they alleged in their complaint that, contrary to what paragraph 2 quoted above seems to imply, the easement was actually for the benefit of Lots D and E only. The complaint thus said: So that in the same partition instrument, the said heirs voluntarily agreed to establish the so-called perpetual and gratuitous easement of road right of way along LOT A, with 1.50 meters wide and along LOT B, with the same 1.50 meters wide. Understandably, this servitude voluntarily constituted on LOTS A and B was had for the benefit and use by the owners of LOTS D(Guillermo Ceniza, Jr.) and E (defendant Victoria Ceniza Salimbagon).[7] (Underscoring supplied) Consequently, with the above averment, the Tans were entitled to introduce evidence to establish the true intent and agreement of the parties although this may depart from what the partition agreement literally provided. At any rate, as the CA said, the Salimbangons did not object at the hearing to admission of Eduardo Cenizas testimony even when this seemed at variance, as far as they were concerned, with the partition agreement among the heirs. Consequently, the Salimbangons may also be deemed to have waived their right to now question such testimony on appeal. Two. The Salimbangons point out that the partition agreement among the heirs established in their favor, as owners of Lot A, an easement of right of way on Lot B from the interior of their lot to the city street. Since theirs was an easement established by agreement of the parties, only by mutual agreement could the same be extinguished. But, firstly, as Eduardo Ceniza testified, the true agreement of the heirs was for the establishment of an easement of right of way for the benefit solely of the lots that did not have direct access to the street, namely Lots D and E. His testimony made sense. As originally constituted in that agreement, each of Lots A and B was to contribute a strip of 1.5 meters between them that when combined formed a 3-meter wide alley leading from Lots D and E to the street. To the extent that Lots A and B retained the right to use the 1.5-meter portion that they contributed to the establishment of the easement, the agreement gave their owners the right to use the common alley as well. As Eduardo testified, however, the true intent of the heirs was to give Lots D and E access to the street. Lots A and B did not need this alley since they were facing the street. Consequently, when the owner of Lots D and E also became the owner of Lot B, the easement of right of way on Lot B became extinct by operation of law.[8] The existence of a dominant estate and a servient estate is incompatible with the idea that both estates belong to the same person. Secondly, there is no question that when the heirs realized that it was not fair to take strips of 1.5 meters from each of Lots A, D, and E for the easement of right of way when these lots were already small, the heirs executed a Cancellation of Annotation of Right of 42

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. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading: (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;

Way, etc. that cancelled the easement of right of way they earlier established on Lots A, D, and E and in its place imposed a 3-meter wide easement of right of way solely on Lot B. Although the cancellation document did not say so, it was implicit that the changed location of the easement cancelled not only the 1.5-meter strip of easement imposed on Lot A of the Salimbangons but also their right to use the new 3-meter easement alley that lay entirely on Lot B. Strictly speaking, if the Salimbangons insist that their right as dominant estate under the original partition agreement remains, then that would be partly on a 1.5-meter strip of their own Lot A and partly on the equivalent 1.5-meter strip on the side of Lot B, not on the new 3-meter alley established entirely on Lot B. The point is that, obviously, in establishing the new easement of right of way, the heirs intended to abandon the old one. Since this 3-meter alley on Lot B directly connected Lots D and E to the street, it is also obvious that only the latter lots were its intended beneficiary. And, with the ownership of Lots B, D, and E now consolidated in a common owner, namely, the Tans, then the easement of right of way on Lot B may be said to have been extinguished by operation of law.[9] ACCORDINGLY, this Court DENIES the petition and AFFIRMS in all respects the decision dated July 27, 2007 and resolution dated October 14, 2008 of the Court of Appeals in CA-G.R. CV 73468. SO ORDERED. SECOND DIVISION [G.R. No. 96405. June 26, 1996.] BALDOMERO INCIONG, JR., petitioner, vs. COURT OF APPEALS and PHILIPPINE BANK OF COMMUNICATIONS, respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; DOES NOT SPECIFY THAT THE WRITTEN AGREEMENT BE A PUBLIC INSTRUMENT. 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" [FRANCISCO, THE RULES OF COURT OF THE PHILIPPINES, Vol. VII, Part I, 1990 ed., p. 179] Thus, for the parol evidence rule to apply, a written contract need not be in any particular form, or be signed by both parties. As a general rule, bills, notes and other instruments of a similar nature are not subject to be varied or contracted by parol or extrinsic evidence. 2. CIVIL LAW; OBLIGATIONS; SOLIDARY OR JOINT AND SEVERAL OBLIGATION, DEFINED. 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. [TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. IV, 1991 ed., p. 217] 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 the 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. [Sesbreo v. Court of Appeals, G.R. No. 89252, May 24, 1993, 222 SCRA 466, 481.] 3. ID.; GUARANTY; GUARANTOR AS DISTINGUISHED FROM SOLIDARY DEBTOR. 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 codebtor, and a fiador in 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." [TOLENTINO, CIVIL CODE OF THE PHILIPPINES, Vol. V, 1992 ed., p. 502] DECISION 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 P5,000.00.

43

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 "P50,000-" 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 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 motion 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, at 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: "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 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

44

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 solidum (surety). The later, 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 fianza; 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, JJ ., concur. THIRD DIVISION [G.R. No. 121506. October 30, 1996.] MACTAN CEBU INTERNATIONAL AIRPORT AUTHORITY, petitioner, vs. COURT OF APPEALS, REGIONAL TRIAL COURT, BRANCH 9, CEBU CITY, MELBA LIMBACO, LINDA C. LOGARTA and RAMON C. LOGARTA, respondents. SYLLABUS 1. REMEDIAL LAW; EVIDENCE; PAROL EVIDENCE RULE; CONSTRUED. Under the parol evidence rule, when the terms of an agreement have been reduced into 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. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading, the failure of the

written agreement to express the true intent of the parties thereto. HAECID 2. ID.; ID.; ID.; ADMISSIBLE WHERE THE RIGHT TO REPURCHASE WAS THE MOVING CAUSE OR FORMS PART OF THE DEED OF SALE; CASE AT BAR. In the case at bench, the fact which private respondents seek to establish by parol evidence consists of the agreement or representation made by the NAC that induced Inez Ouano to execute the deed of sale; that the vendors and their heirs are given the right of repurchase should the government no longer need the property. Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. It is recognized that proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, and whether the action is at law or in equity. 3. ID.; ID.; ID.; FAILURE TO OBJECT ADMISSION THEREOF, DEEMED WAIVED. More importantly, no objection was made by petitioner when private respondents introduced evidence to show the right of repurchase granted by the NAC to Inez Ouano. 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 if not so made, it will be understood to have been waived. 4. CIVIL LAW; STATUTE OF FRAUDS; REQUIREMENT SUFFICIENTLY COMPLIED WHERE RIGHT TO REPURCHASE LOT FORMS PART OF THE DEED OF SALE. Under Art. 1403 of the Civil Code, a contract for the sale of real property shall be unenforceable unless the same or some note or memorandum thereof be in writing and subscribed by the party charged or his agent. Evidence of the agreement cannot be received without the writing, or a secondary evidence of its contents. In the case at bench, the deed of sale and the verbal agreement allowing the right of repurchase should be considered as an integral whole. The deed of sale relied upon by petitioner is in itself the note or memorandum evidencing the contract. Thus, the requirement of the Statute of Frauds has been sufficiently complied with. 5. ID.; ID.; DOES NOT APPLY TO CONTRACTS PARTIALLY PERFORMED. The principle of the Statute of Frauds only applies to executory contracts and not to contracts either partially or totally performed, as in this case, where the sale has been consummated; hence, the same is taken out of the scope of the Statute of Frauds. As the deed of sale has been consummated, by virtue of which, petitioner accepted some benefits thereunder, it cannot now deny the existence of the agreement. The Statute of Frauds was enacted for the purpose of preventing fraud. It should not be made the instrument to further them. CDScaT RESOLUTION FRANCISCO, J p: Petitioner Mactan Cebu International Airport Authority (MCIAA) 1 seeks a reversal of the decision 2 of the Court of Appeals (CA) dated March 23, 1995 as well as the resolution 3 dated August 7, 1995 denying petitioner's motion for reconsideration. The facts, as stated in the assailed decision, and which we adopt, are as follows: "Sometime in 1949, officers of the National Airport Corporation informed the owners of the various lots surrounding the Lahug Airport that the government will purchase their lands for the expansion of the airport. The landowners were convinced to sell their properties, otherwise, the government will be forced to institute expropriation proceedings in courts. They were also assured that their properties will 45

be returned to them when these are no longer being used by the airport (TSN-Daclan, 15 June 1992, pp. 5-7; TSN-Sanchez, 29 September 1992, p. 12; TSN-Daclan, 9 February 1993, pp. 7-9, 12). "Initially, Inez Ouano did not want to sell her property because she does not have enough to bequeath to her grandchildren and the price offered by the government was very low. Nonetheless, she agreed to sell since the government was going to expropriate the land anyway. She was also reassured by the promise that the land will be returned to her when it is no longer in use (TSN-Daclan, 15 June 1992, pp. 56). "Eufemio Vercide, one of the affected landowners testified that in a meeting called by the NAC, the landowners were given documents to sign, and he asked for a rider or certification which would indicate that the land will be returned to him should it not be used by the airport. He testified that it was only after the rider was given to him that he signed the document of sale (TSN-Catin, 24 September 1992; Deposition of Eufemio Vercide; Records pp. 146-155). The rider dated 8 November, 1949, signed by Mariano Reyes for the NAC and Vercide reads, as follows: "This RIDDER (sic), shall remain in full force up to whensoever and whatever the Lahug Airport may happen in the future. All statements in anticipations herein below stated, shall remain valid in favor of the landowners. "That in the event that this Lahug Airport will be left dead and of no use, or be transferred to another place or locality, then the parcels of land mentioned in the attached Doc. No. 698, Page 8, Book No. XVII, Series of 1949 by Atty. Daniel Tumulak, shall be returned to the same owner, EUFEMIO O. VERCIDE at the same selling price without any interest (Exhibit "F-1"; Records, p. 92)." "The sale of Inez' property was covered by a Deed of Sale signed by her and Mariano Reyes representing the NAC. The deed indicates that the Lot 742 was sold for P2,596.40; and Lot 953 for P1,125.20. The deed does not contain any provision regarding Inez' right to repurchase the properties. Nor does she have any rider such as the one given to Vercide. "Nonetheless, during her lifetime, Inez used to remind her granddaughter Melba Limbaco, who was living with her, about the assurance by the NAC officials that the properties will be returned. Inez also made Melba understand that the latter can recover the land herself should Inez die before the proper time arises. xxx xxx xxx

II. RESPONDENT COURT ERRED IN RULING THAT THE STATUTE OF FRAUDS DOES NOT APPLY IN THE INSTANT CASE AS THE CONTRACT HAS BEEN PARTIALLY EXECUTED. 5 Anent the first error, the CA's finding that there was an agreement allowing the right of repurchase, was established after admitting the parol evidence presented by private respondents. We reject petitioner's argument that in the absence of any rider providing for such right of repurchase, no evidence, whatsoever can be received to establish that such a right indeed exists. Both the RTC and the CA correctly ruled that the right of repurchase granted by the NAC to Inez Ouano can be sufficiently established by parol evidence. The Court of Appeals, based on the parol evidence presented by private respondents, thus stated: "We see no reason, however, why Inez should be considered as not similarly situated as the owners of these other lots. All these lots surround the Lahug Airport and were acquired by the government for the proposed expansion of the airport. The appellee has not presented any evidence to show that Inez' lots were acquired for a different purpose or under different conditions. Why then should the sale of such lots be singled out as not subject to the right to repurchase when a good number of the lots around them were already repurchased by their original owners? 6 Under the parol evidence rule, when the terms of an agreement have been reduced into 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. However, a party may present evidence to modify, explain or add to the terms of the written agreement if he puts in issue in his pleading, the failure of the written agreement to express the true intent of the parties thereto. 7 In the case at bench, the fact which private respondents seek to establish by parol evidence consists of the agreement or representation made by the NAC that induced Inez Ouano to execute the deed of sale; that the vendors and their heirs are given the right of repurchase should the government no longer need the property. Where a parol contemporaneous agreement was the moving cause of the written contract, or where the parol agreement forms part of the consideration of the written contract, and it appears that the written contract was executed on the faith of the parol contract or representation, such evidence is admissible. 8 It is recognized that proof is admissible of any collateral parol agreement that is not inconsistent with the terms of the written contract though it may relate to the same subject matter. The rule excluding parol evidence to vary or contradict a writing does not extend so far as to preclude the admission of existing evidence to show prior or contemporaneous collateral parol agreements between the parties, but such evidence may be received, regardless of whether or not the written agreement contains any reference to such collateral agreement, and whether the action is at law or in equity. 9 More importantly, no objection was made by petitioner when private respondents introduced evidence to show the right of repurchase granted by the NAC to Inez Ouano. 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 if not so made, it will be understood to have been waived. 10 As regards the second assigned error, the CA correctly held that the Statute of Frauds does not apply to the case at bench. In support thereof, the CA declared: "It will be stressed that the right to repurchase is part of the contract of sale, albeit not incorporated in the deed of sale. It is not an independent agreement or contract. It is, therefore, correct for the trial court to hold that the contract has been partially executed by the sale of the properties to the appellant." 11 Under Art. 1403 of the Civil Code, a contract for the sale of real property shall be unenforceable unless the same or some note or memorandum thereof be in writing and subscribed by the party charged or his agent. Evidence of the agreement cannot be received 46

"Upon learning that other landowners were able to recover their properties and that the then Pres. Aquino had ordered that the airport be transferred to Mactan, the appellees tried to repurchase the properties originally owned by their grandmother. On 2 October 1991, they wrote to Capt. Antonio Oppus, the manager of appellant, signifying their intention to repurchase the properties originally owned by their grandmother (Exhibit "D", Records, pp. 82-83). Capt. Oppus replied through a letter dated 17 October 1991 denying their request because the deed of sale covering the properties does not contain any condition relating to the right to repurchase. These properties, it was explained, had become the absolute properties of the NAC (Exhibit "E" Records, p. 84). 4 Private respondents thereafter filed a case for reconveyance with the Regional Trial Court (RTC) which ruled in their favor. On appeal to the CA, the same was affirmed in toto. Hence, this petition assigning the following errors: "I. RESPONDENT COURT ERRED IN RULING THAT THERE WAS AN AGREEMENT ALLOWING INEZ OUANO AND HER SUCCESSORS TO REPURCHASE THE LOTS IN QUESTION ABSENT ANY "RIDER" IN THE DEED OF SALE SIMILAR TO THE SALES OF ADJACENT LOTS WHICH CONTAINED RIDERS.

without the writing, or a secondary evidence of its contents. In the case at bench, the deed of sale and the verbal agreement allowing the right of repurchase should be considered as an integral whole. The deed of sale relied upon by petitioner is in itself the note or memorandum evidencing the contract. Thus, the requirement of the Statute of Frauds has been sufficiently complied with. Moreover, the principle of the Statute of Frauds only applies to executory contracts and not to contracts either partially or totally performed, 12 as in this case, where the sale has been consummated; hence, the same is taken out of the scope of the Statute of Frauds. As the deed of sale has been consummated, by virtue of which, petitioner accepted some benefits thereunder, it cannot now deny the existence of the agreement. 13 The Statute of Frauds was enacted for the purpose of preventing fraud. It should not be made the instrument to further them. 14 ACCORDINGLY, the petition is hereby DENIED. SO ORDERED. Narvasa, C .J ., Davide, Jr., Melo, and Panganiban, JJ ., concur.

47

Republic of the Philippines SUPREME COURT Manila EN BANC G.R. No. 137933 January 28, 2002

Crame found that Jennifer was in "non-virgin state physically." The examination disclosed a "congested, fleshy-type hymen with shallow healing laceration at 9 oclock position and the external vaginal orifice admits tip of the examiners smallest finger."8 For his defense, accused-appellant denied the allegations against him.9 According to accused-appellant, he has been living with Jennifers grandmother for ten (10)10 or eighteen (18) years.11 Accused-appellant claimed that Jennifer was not living with them during the time the alleged rape occurred.12 Later on, he testified that prior to July, 1997, Jennifer was living with them since 1990.13 However, Jennifer was taken from them sometime in July 1997, but he does not know why.14 The trial court meted out its judgment of conviction on the basis of the victims clear, trustworthy and positive testimony that she was raped several times by accused-appellant. Because of the penalty imposed, this case is now before us on automatic review. On April 20, 1999, accused-appellant, through his counsel, filed a petition before this Court to dismiss the case that is subject of our automatic review because (i) the three-page double-spaced decision of the trial court is bereft of material facts supporting the conviction; (ii) the medico-legal certificate is merely a scrap of paper since the physician who conducted the examination was not presented as a witness that deprived accused-appellant of his right to crossexamination; (iii) the case of attempted homicide filed by the victims grandmother against accused-appellant was provisionally dismissed; and (iv) accused-appellant was merely a "fall guy" and that another person is responsible for the commission of the crime charged against him.15 In the appellants brief filed on November 4, 1999, accused-appellant assigns the following errors"The lower court erred: "I. In promulgating a brief and short decision with material facts that have been omitted with no allusions to the transcripts of records erroneous of tenses and grammar jotted by the Court Stenographer. "II. In denying the accused his right to plead for a DNA Test to determine that the blood found in the panty of the victim is not his but of another man, Venancio Mendoza, live-in husband of Jennelyn, mother of Jennifer Donayre, the victim. "III. In not finding the accused as a fall guy framed up to take the place of Venancio Mendoza, live-in husband of Jennelyn, mother of Jennifer, whose behavior in the courtroom as a witness has been beyond normal."16 The Philippine Constitution no less, mandates that no decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.17 This vital requirement is not only demanded from the courts. Quasi-judicial bodies are similarly required to give basis for all their decisions, rulings or judgments pursuant to the Administrative Code18 whose roots may also be traced to the Constitutional mandate. A decision need not be a complete recital of the evidence presented. So long as the factual and legal basis are clearly and distinctly set forth supporting the conclusions drawn therefrom, the decision arrived at is valid. Nonetheless, in order to effectively buttress the judgment arrived at, it is imperative that a decision should not be simply limited to the dispositive portion but must state the nature of the case, summarize the facts with references to the record, and contain a statement of the applicable laws and jurisprudence and the tribunals assessments and conclusions on the case. This practice would better 48

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. VALENTIN BARING, JR., accused-appellant. BUENA, J.:

Sandoval-Gutierrez, and Carpio, JJ., concur. Valentin Baring, Jr., herein


accused-appellant, was indicted for statutory rape committed against a seven-year-old girl in an information that reads-

"That prior to August 2, 1997 and on several occasions thereto, in the Municipality of Dasmarias, Province of Cavite, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd designs, by means of force, violence and intimidation taking advantage of his superior strength over the person of the victim who is only seven (7) years old, did, then and there, wilfully, unlawfully and feloniously, have carnal knowledge of one Jennifer Donayre, against her will and consent, to her damage and prejudice. "CONTRARY TO LAW."1 On his arraignment accused-appellant pleaded not guilty to the crime charged. After trial, the Regional Trial Court of Imus, Cavite rendered a decision dated January 20, 1999, convicting accused-appellant of rape, to wit "WHEREFORE, finding the accused guilty beyond reasonable doubt of the felony of rape, the accused-Valentin Baring Jr. is sentenced to die by lethal injection and to pay the victim an indemnity of P50,000.00 plus moral damages of another P50,000.00 plus the cost of this suit. "SO ORDERED."2 In a sworn complaint,3 Jennifer Donayre accused Valentin Baring, Jr., her grandmothers commonlaw husband, of raping her on several occasions. It appears that Jennifer was living with her grandmother in Dasmarias, Cavite. She does not know her real father since her mother and father were separated.4 Since 1990, when she was about 8 months old5 until 1997, she was left under her grandmothers care and custody. She calls Valentin Baring, Jr. as "Papa."6 According to Jennifer, the repeated sexual abuse happened when she was about 6 years old whenever she was left alone in the house. Accused-appellant would touch her private parts, and on such occasions, accused-appellant would remove her panty, mount on her and violate her. She informed her grandmother that accused-appellant sexually abused her.7 On July 29, 1997, Jenelyn Donayre-Mendoza visited her daughter Jennifer, herein victim, in Dasmarias, Cavite. She learned from her daughter that the latter was sexually abused by accused-appellant. Acting on her daughters accounts of sexual abuse, she took Jennifer to the National Bureau of Investigation and filed a complaint. Thereafter, Jennifer underwent a medical examination at the Philippine National Police (PNP) Crime Laboratory Service in Camp Crame, Quezon City. Dr. Dennis G. Bellen, the medico-legal officer at Camp

enable a court to make an appropriate consideration of whether the dispositive portion of the judgment sought to be enforced is consistent with the findings of facts and conclusions of law made by the tribunal that rendered the decision.19 Compliance with this requirement will sufficiently apprise the parties of the various issues involved but more importantly will guide the court in assessing whether the conclusion arrived at is consistent with the facts and the law. In the case at bar, the trial courts decision may cast doubt as to the guilt of accused-appellant. Such doubt may be engendered not by the lack of direct evidence against accused-appellant but by the trial courts failure to fully explain the correlation of the facts, the weight or admissibility of the evidence presented for or against the accused, the assessments made from the evidence presented, and the conclusions drawn therefrom after applying the pertinent law as basis of the decision. Accused-appellant claims that the trial court erred in convicting him of the crime of rape despite prosecutions failure to present the examining physician to appear in court depriving him of his constitutional right to confront a witness against him.20 However, a review of the transcript of stenographic notes reveal that accusedappellants counsel waived presentation of the medico -legal officer and thus, was not deprived of his constitutional right to confront said witness, to wit"PROS. ORQUIEZA: Your Honor, I was informed by the mother of the private complainant that the doctor is no longer connected with the Crime Laboratory Service at Camp Crame, Quezon City but was reassigned to the Eastern Police District at Mandaluyong City. "PROS. ORQUIEZA: I just prefer that a subpoena be sent. We have to ask for the postponement. "ATTY. ABUBAKAR: We can dispense with the testimony. "COURT: Provided this is admitted. "COURT: Do you admit the due execution and authenticity of the report of the doctor? "ATTY. ABUBAKAR: We admit everything written here because (sic) doctor says. "COURT: Yes, whatever is written there, do you admit that? ATTY. ABUBAKAR Yes, your Honor. "COURT:

No need to present the doctor "PROS. ORQUIEZA: We will no longer present Dr. Dennis G. Bellen of the Philippine National Police Crime Laboratory Service at Camp Crame, Quezon City. We have here the xerox copy of the medico legal report no. M-2831-97. "COURT: Will you show that to Atty. Abubakar. "ATTY. ABUBAKAR: Yes, your Honor. "COURT: Admitted. You dispense the testimony of the doctor.21 A medical certificate after all is not indispensable to prove the commission of rape.22 It is well entrenched in our jurisprudence that a medical examination of the victim is not indispensable in a prosecution for rape inasmuch as the victims testimony alone, if credible, is sufficient to convict the accused of the crime.23 Besides, testimonies of rape victims who are of tender age are credible,24 and the testimonies of child-victims are given full weight and credit.25 Accused-appellant likewise impugns the credibility of the victim by pointing out that the rape was filed one year after its commission, which allegedly leaves doubt as to the real identity of the culprit. Delay in reporting an incident of rape does not create any doubt over the credibility of the complainant nor can it be taken against her.26 The following realities justified the delay in the filing of the case against accused-appellant: (1) the victim was merely six years old when she was sexually abused; (2) the victim lived separately from her mother and was left under her grandmothers care; and, (3) the victims sexual abuser happens to be her step-grandfather. According to accused-appellant, he was simply framed-up and that another person also raped the victim.27 He avers that his allegation is supported by the testimony of the victims mother Jenelyn that the victim was likewise abused by the latters husband. The categorical testimony of the victim that she was raped by accusedappellant cannot be overturned by the bare denial and defense of being framed-up interposed by accused-appellant. The victim made a positive, clear and categorical declaration pointing to accusedappellant as the person who sexually ravaged her"Q: Are you the same Jennifer Donayre the private complainant against the accused Valentin Baring, Jr.? "A: "x x x "Q: Yes, sir. xxx xxx

Who is your father?

"A: I do not know the name of my father because my father and mother are separated.

49

"Q: him?

If your father is in the courtroom can you point to

"Q: "A:

In whose house or place? In the house of my grandmother. Who are the residents of that house at that time?

"A: Yes, sir. (Witness pointing to a man inside this courtroom when asked given [sic] his name as Valentin Baring.) "Q: "A: Is he your true father? No sir. He is my stepfather.

"Q:

"A: At that time nobody was in the house because they were working. "xxx xxx xxx

"Q: You were pointing to your stepfather, do you know what things or particular things, if any, he did to you? "A: Yes, sir.

"Q: Can you recall if the rape you mentioned to us happened while you were 7 years old, 6 years old? What was your age then if you can recall? "A: 6 years old.

"Q: What were those particular things your stepfather had done to you? "A: He raped me.

"Q: How many times did your stepfather do to you these things you mentioned to us that is by placing (sic) on top of you and inserting his penis into your private parts and kissing you? "A: "Q: "A: 10 times. Do you know how to count? Yes, sir.

"Q: When your stepfather raped you, what actually did your stepfather do to you? "A: He removed my panty.

"Q: What did your stepfather do after removing your panty? "A: "Q: "A: He placed himself on top of me. Was he naked when he placed himself on top of you? Yes, sir.

"Q: How many is this? (prosecutor is depicting two fingers) "A: Two, sir.

"Q: How about this, how many? (Prosecutor is depicting five fingers). "A: "Q: "A: Five, sir. How about this?(Prosecutor is depicting 10 fingers) Ten, sir.28

"Q: When he was on top of you, did he place his penis inside your private parts? "A: Yes, sir.

"Q: What did you feel when his penis was inside your private parts, if any? "A: I felt pain.

Accused-appellant even contends that the failure of the prosecution to establish the dates when the other alleged rapes were committed justifies the outright dismissal of the case.29 Failure to specify the exact date or time when the rapes occurred does not ipso facto make the information defective on its face.30 When all the essential elements of the crime of rape are stated in the information, an accused is sufficiently apprised of the charged against him. Moreover, the precise time of the commission of the crime of rape is not an essential element of rape.31 Neither is the exact date of commission of rape an element of the crime32 for the gravamen of the offense of rape is sexual intercourse without consent.33 Accused-appellant contends that the trial court denied him his right to subject the blood found on the victims panty for DNA testing. The records reveal that accused-appellants counsel initially asked the court to subject the alleged blood found in the victims panty to a DNA test for comparison with accused-appellants blood.34 However, he voluntarily withdrew his proposition.35 Obviously, accused-appellants counsel is misleading the Court. It was even accused-appellants counsel who recalled the submission for DNA testing. The alleged denial of accuseds right to avail of the DNA tests is a futile attempt to 50

"Q: Was your private part bleeding as a result of the insertion of the penis of your stepfather into your private parts? "A: "Q: "A: "Q: "A: "Q: "A: Yes, sir. Did he kiss you while he was on top of you? Yes, sir. What parts of your body or face was kissed? My cheek. Where did this happen? Dasmarias, Cavite.

confuse the issues. He lost sight of the categorical testimony of the victim pinning him down as the perpetrator. It would have been more prudent for him to attack this damaging evidence directly. It must be noted that in the prosecution of rape cases, the presentation of the bloodstained panty is not even essential.36 The victims credible testimony, standing alone, is sufficient basis for the conviction of accused-appellant. Cases subject of our review, especially those in the nature of child sexual abuse, often involve victims of tender years. On account of the increased number of children coming into the realm of the judicial system, we adopted the "Rule on Examination of a Child Witness" to govern the examination of child witnesses who may either be victims, accused or witnesses to a crime.37 This rule ensures an environment that allows children to give reliable and complete evidence, minimize trauma, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth.38 In line with our foregoing thrust to protect children, we observed the peculiar physical examination performed by the doctor on the sevenyear-old victim in this wise"GENITAL There is absence of pubic hair. Labia majora full, convex and slightly gaping with the pinkish brown labia minora presenting in between. On separating, the same disclosed a congested, fleshy-type hymen with shallow healing laceration at 9 o'clock position. External vaginal orifice

less experienced clinician, and internal structures such as vaginal ridges, rugae, and vaginal columns may be visualized. This is purely a matter of how much traction is applied, and the degree of patient relaxation, and has no proven correlation with past sexual abuse. Likewise, it is not possible to obtain accurate measurements of the dilated hymenal opening, unless photographs are taken at the point of maximal dilation and measurements are taken from the photographs using a calibrated measuring device. Rings of different sizes that are etched into eyepieces of certain types of colposcopes can be used to estimate diameter size but not to obtain exact measurements."42 Hence, insertion of a finger or any foreign matter inside the hymenal opening under the pretext of determining abuse is unnecessary and inappropriate. The Philippine Judicial Academy [PHILJA] training program for family court judges,43 through the auspices of the U.P.P.G.H. Child Protection Unit, sanctioned that in prepubertal girls44 without active bleeding, all that is needed is an external examination with a good light source and magnification. Be that as it may, the physical findings alone will not be conclusive of child sexual abuse, for a child who gives a clear, consistent, detailed, spontaneous description of being sexually molested may still have normal genital examination. Despite the physical or laboratory findings, however, a childs clear and convincing description of the abuse has a high rate of probability. We are not at all uninformed in this cases, have consistently upheld the unwavering testimony.45 Also, there Examination of a Child Witness, which regard for we, in a plethora of full weight of a young victims is Section 22 of the Rule on categorically states:

admits tip of the finger."39 (emphasis ours)

examiners

smallest

This Court is disturbed by the method of physical examination done on the seven-year-old victim. We noticed that in the examiners effort to show the existence of abuse, the examining physician inserted his smallest finger, as shown in the medico-legal report that the external vaginal orifice admits tip of the examiner's finger. It bears to stress that this particular manner of establishing evidence by determining the diameter/hymenal opening in rape cases was a common practice in the past. With the passage of R.A. 7610, this Court has nonetheless allowed the utilization of the same kind of evidence in the prosecution of Child Abuse cases. In light however of radical medical developments and findings, specifically as to the determination of the existence of child sexual abuse, this Court deems it necessary to firmly adopt a more "child sensitive" approach in dealing with this specie or genre of crime. In the international scientific community, recent medical studies have shown that measurement of hymenal opening is unreliable in determining and/or proving child sexual abuse "The diameter of the hymenal opening previously has been used as a diagnostic criterion for abuse. More recent studies have shown this to be undependable (Paradise, 1989).Factors affecting hymenal and anal diameter include the examination position (McCann, Voris, Simon, & Wells, 1990) and the degree of relaxation of the child. The anal diameter is also affected by the presence of stool in the ampulla. Hymenal diameter may increase with age and with the onset of pubertal development."40 In fact, there is no evidence, nor published research studies which show that enlarged hymenal opening diameter is any more common in abused than in non-abused children."41 Thus "In the latest revision of the classification system, enlarged hymenal opening is also removed as a criterion that should be considered suspicious for abuse. With labial traction, the hymenal opening may appear quite large, especially to the

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 proof required in criminal and non-criminal cases. What is important at this point, and we do not hesitate to reiterate, is that forensic examination inclusive of physical examination and forensic interview of sexually assaulted children [adolescents included] must be conducted with maximum sensitivity to the young victims feelings of vulnerability and embarrassment. Great care must be observed in order to make the examination less stressful lest they be more traumatic to the victim than the very assault itself. The value of collecting evidence should always be weighed against the emotional cost of the procedure and examination of the child. We now come to the matter of the death penalty imposed by the trial court. The single information filed against accused-appellant, docketed as Criminal Case No. 6334-98, charged him with the crime of "Multiple Statutory Rape."46 Even then, accused-appellant cannot be held answerable for the other incidents of rape committed. Each and every charge of rape is a separate and distinct crime so that each of the other rapes charged should be proven beyond reasonable doubt.47 Article 266-B, paragraph No.5 of the Revised Penal Code, imposes death penalty when the victim is a child below seven (7) years old. The allegation in the information specifically stated that "xxx the victim xxx is only seven years old" which clearly rules out the application of this specific provision that can justify the imposition of the capital punishment. Paragraph No. 1 of the same article which warrants the imposition of the death penalty if the crime of rape is committed where 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,48 will not apply for while the victim is under eighteen (18) years old, the accused-appellant is not the common-law husband of the victims mother. The trial court therefore erred in meting out the death penalty upon accused-

51

appellant for qualified rape. Thus, accused-appellant may only be sentenced to suffer the penalty of reclusion perpetua. In line with our prevailing jurisprudence,49 we sustain the trial courts award of P50,000.00 civil indemnity andP50,000.00 moral damages. WHEREFORE, the decision of the Regional Trial Court, Branch 21, Imus, Cavite, in Criminal Case No. 6334-98, finding accused-appellant Valentin Baring, Jr., guilty beyond reasonable doubt of rape is hereby AFFIRMED with the MODIFICATION that the sentence is reduced to reclusion perpetua. SO ORDERED.

Kakingcio arrived back home after lunch time. Alma hid from her uncle. On February 3, 1996, at 8:00 in the evening, Alma was asleep in the sala of their house. She was awakened when she felt her pants being pulled down. She was aghast when she saw Kakingcio beside her pulling down her pants. She resisted and ran out of the house to escape from Kakingcio. She rushed to the house of a neighbor Ka Caring to whom Alma revealed that her uncle raped her and that he was about to rape her again. Caring adviced Alma not to return to their house. Alma slept in the house of Caring. Alma returned to their house the next day, February 4, 1996. By then, Kakingcio was no longer in the house. On February 5, 1996, Alejandra went up the hill to gather camote tops. She was then armed with a bolo. Alma followed Alejandra to the hills and revealed to her that Kakingcio raped her on February 1, 1996. Alejandra was livid with rage. She rushed back to the house and confronted Kakingcio with the charge of Alma. Alejandra and Kakingcio quarreled. She berated him for having taken advantage of his own flesh and blood. She told him to leave the house. Kakingcio agreed on the condition that he would bring his personal belongings with him. After Kakingcio left, Alejandra accompanied Alma to the barangay captain and complained against Kakingcio. The Barangay Captain wrote a letter to the local police authorities requesting assistance to Alejandra and Alma. On February 9, 1996, Dra. Bibiana A. Cardente, the Municipal Health Officer of Capoocan, Leyte, examined Alma. The doctor prepared and signed a medico-legal certificate on her examination of Alma which contains her findings: Physical Examination Findings: Breast: normal, no abrasions, no lacerations, no hematoma

Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Pardo, Ynares-Santiago, De Leon, Jr.,
EN BANC [G.R. No. 142930. March 28, 2003] THE PEOPLE OF THE PHILIPPINES, appellee, vs. KAKINGCIO CAETE, appellant. DECISION CALLEJO, SR., J.: Before the Court on automatic review is the Decision[1] of the Regional Trial Court of Leyte, Branch 36, in Criminal Case No. 2523, convicting appellant of rape, imposing on him the death penalty and ordering him to pay damages to the victim in the amount of P50,000.

Evidence of the Prosecution Abdomen: normal The spouses Paquito Caete and Sedaria Caete had three children, one of whom was Alma, who was born on March 24, 1983. In 1986, the spouses decided to live separately. Sedaria resided in Pook West, Cubala, Biliran, with some of her children by Paquito. The latter decided to live in Basey, Samar, and brought Alma with him. Thereafter, Paquito decided to live with his older brother, Kakingcio Caete, and the latters common-law wife, Alejandra Caete, whom Alma called Yaya Alejandra, and their two children, five and four years old, respectively, in Barangay Gayad, Capoocan, Leyte. After some years, Paquito and Alma decided to return to and live in Basey, Samar. In the meantime, Paquito became blind and a paralytic. In January 1996, Kakingcio had Paquito and Alma fetched from Basey, Samar, and brought to Barangay Gayad, Capoocan, Leyte, to live with him and his family. By then, Alma was already twelve years old. She noticed that her uncle Kakingcio was nice and amiable to her. On February 1, 1996, Alejandra visited her daughter in Montebello, Kananga, Leyte, leaving behind Kakingcio and their two young children and Paquito and Alma. At about 8:00 p.m., Alma was already asleep. Paquito was sleeping near her feet. The house was dark. Momentarily, Alma was awakened when she felt someone caressing her. When she opened her eyes, she saw her uncle Kakingcio who was wearing a pair of short pants but naked from waist up. He was beside her with his left palm touching her forehead, down to her face, hand and feet. She could smell liquor from his breath. He poked an 8-inch long knife on her neck and whispered to her: Ma, dont tell your yaya because I will do something to you. Kakingcio then removed his short pants, lifted her skirt and pulled down her panties. He threatened to kill her if she made a sound. Alma was terrified. Kakingcio then inserted his private organ into Almas vagina and made a push and pull movement of his body. Alma felt pain in her private part and could do nothing but cry as Kakingcio ravished her. In the process, Alma lost consciousness. When she regained consciousness, it was already 6:00 in the morning of February 2, 1996. She was weak and could hardly stand up. She noticed blood in her vagina. By then, Kakingcio had already left the house. Alma could do nothing but cry. Extremities: normal Pelvic Examination: scanty pubic hair noted External Genitalia: grossly normal Internal & Speculum Examination Findings: Introitus: non-parous, admits 2 fingers with slight difficulty Cervix: pinkish, soft hymenal healed old lacerations at 6 oclock and 9 oclock Discharges: scanty brownish discharges Uterus: small Adnexa: negative for masses and tenderness[2] Alma was entrusted to the Lingap Center in Pawing Palo, Leyte. On April 26, 1996, an Information was filed with the Regional Trial Court of Leyte, Branch 36, charging Kakingcio with rape, thus: That on or about the 1st day of February, 1996, in the municipality of Capoocan, Province of Leyte, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent and with lewd designs and by use of force and intimidation then armed with the short bladed weapon, did then and there wilfully, unlawfully and feloniously have carnal knowledge with ALMA CAETE, a minor (12 years old) against her will to her damage and prejudice.

52

CONTRARY TO LAW.[3] When arraigned on September 18, 1996, Kakingcio, assisted by counsel, pleaded not guilty to the crime charged. When he testified, Kakingcio denied having sexually assaulted Alma. He interposed the defense of alibi. He claimed that he was a farmer. He planted root crops such as banana. On February 1, 1996, he went to the house of Romulo Lukaba located at Barangay Gayad, Capoocan, Leyte, about three kilometers from his house, for the purpose of accompanying and helping Rolly Lukaba, the son of Romulo, gather coconuts in the coconut plantation of Romulo in the mountains. It took Kakingcio thirty minutes to reach the place. At about 9:00 in the evening, Kakingcio, Rolly and Romulo drank tuba. By 10:00 in the evening, Rolly and Kakingcio went to sleep. Romulo, however, left the two. The next day, Rolly and Kakingcio went back to the mountains and gathered coconuts. Kakingcio returned to their house on February 7, 1996. Kakingcio testified that he was not aware of any reason why his wife and Alma would charge him with rape. On February 4, 2000, the trial court rendered a decision finding Kakingcio guilty beyond reasonable doubt of rape and imposing on him the penalty of death in view of the presence of the special qualifying circumstance of the minority of private complainant Alma and her relationship to Kakingcio and the special aggravating circumstance of use of a deadly weapon and without any mitigating circumstance in the commission of the crime. In his appellants brief, appellant Kakingcio assails the decision of the trial court contending that: I THE TRIAL COURT ERRED IN PARTICIPATING DIRECTLY AND ACTIVELY IN THE PRESENTATION AND RECEPTION OF THE PROSECUTIONS EVIDENCE THEREBY FAILING TO UPHOLD THE COLD NEUTRALITY OF AN IMPARTIAL JUDGE. II THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF RAPE DESPITE WANT OF CLEAR, POSITIVE AND CONVINCTING IDENTIFICATION. III THE TRIAL COURT ERRED IN GIVING UNDUE WEIGHT AND CREDENCE TO THE INCREDIBLE TESTIMONY OF THE PRIVATE COMPLAINANT AND IN DISREGARDING THE EVIDENCE ADDUCED BY THE DEFENSE. IV ON THE ASSUMPTION HOWEVER THAT THE ACCUSED-APPELLANT IS GUILTY OF RAPE, THE TRIAL COURT ERRED IN IMPOSING UPON HIM THE PENALTY OF CAPITAL PUNISHMENT DESPITE THE FACT THAT THE QUALIFYING CIRCUMSTANCE OF RELATIONSHIP WAS NOT ALLEGED IN THE INFORMATION, HENCE, THE APPROPRIATE PENALTY SHOULD ONLY BE RECLUSION PERPETUA.[4] On the first three assignments of errors, the appellant avers that the prosecution had a difficulty proving that the appellant raped the private complainant in light of her testimony that when the appellant mounted her, he still had his short pants on. When the prosecution tried to elicit from the offended party how appellants penis could have been inserted into her vagina with his pants still on and the appellants counsel objected to the question, the presiding judge himself took the cudgels for the prosecution and propounded questions on the private complainant. Worse, the presiding judge posed leading questions to

the private complainant. The presiding judge was biased and partial to the prosecution. To buttress his contention, the appellants counsel cited a portion of the transcript of the stenographic notes taken during the trial on September 17, 1997: PROS. PERIDA: Q A Q So, after he laid himself over you with his trouser what else happened? His penis was inserted into my vagina, sir. Where did he let his penis exit considering that he is then wearing a short pants?

ATTY. DILOY: Objection your Honor! It is leading. COURT: Q A How did he manage to have his penis inserted to your vagina? No, sir, because when he placed himself on top of me he pulled down his shorts and thereafter he inserted his penis into my vagina. At that time what was your apparel going up from your vagina? I was wearing then a t-shirt and skirt, sir. About your skirt? He pulled up my skirt, sir. What about your t-shirt? He did not do anything about my t-shirt. After placing his penis on your vagina, what else transpired? He keeps on kissing me sir. At that time he keeps on kissing you, where was his penis in relation to your vagina? It was inside my vagina sir.[5]

Q A Q A Q A Q A Q A

The appellant further stresses that when Alma was raped it was nighttime and the place where she was molested was dark. She could not have recognized and identified the appellant as her rapist. Furthermore, Alma failed to report the rape immediately to the police authorities. The Court does not agree with the appellants submission. In People v. Ancheta,[6] this Court emphasized that a presiding judge enjoys a great deal of latitude in examining witnesses within the course of evidentiary rules. The presiding judge should see to it that a testimony should not be incomplete or obscure. After all, the judge is the arbiter and he must be in a position to satisfy himself as to the respective claims of the parties in the criminal proceedings. In People v. Zheng Bai Hui,[7] this Court reiterated that: In any case, a severe examination by a trial judge of some of the witness for the defense in an effort to develop the truth and to get at the real facts affords no justification for a charge that he has assisted the prosecution with an evident desire to secure a conviction, or that he had intimidated the witnesses for the defense. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be essential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negligent in the performance of their duties if they permitted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness 53

as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarificatory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party. In this case, the relevant direct-examination questions posed by the public prosecutor of the private complainant and her corresponding answers, the objections thereto by the appellants counsel and the questions propounded by the trial court were as follows: Q A Q A Q A Q A Q After taking off your panty or underware (sic) what else transpired? He placed himself on top of me sir. Please describe to us your uncle at that moment when he placed himself over your body! He placed himself on top of me in a prone position. What was he wearing at that time when he was carressing (sic) your face down to your arm? He was just wearing a short pants sir. What about the upper portion of his body? None sir. At the time he put himself over you on a prone position, what about his short pants, was it still there?

Let the witness answer that Your Honor! ATTY. DILOY: We submit Your Honor! COURT: Q What were your uncle, when your uncle placed himself on top of your body as you said, in a prone position, was he wearing clothes or none? He was still wearing Your Honor. What clothes? Short pants Your Honor.

A Q A

Proceed Fiscal! PROS. PERIDA: Q A Q So, after he laid himself over you with his trouser, what else happened? His penis was inserted into my vagina sir. Where did he let his penis exit considering that he is then wearing a short pants?

ATTY. DILOY: Objection Your Honor! It is leading! COURT: Q A How did he manage to have his penis inserted to your vagina? No sir, because when he placed himself on top of me he pulled down his shorts and thereafter he inserted his penis into my vagina. At that time what was your apparel going up from your vagina? I was wearing then a T-shirt and skirt sir. About your skirt? He pulled up my skirt sir. What about your t-shirt? He did not do anything about my t-shirt. After placing his penis on your vagina, what else transpired? He keeps on kissing me sir. At that time he keeps on kissing you, where was his penis in relation to your vagina? It was inside my vagina sir. While his penis was inside your vagina and the accused keeps on kissing you what else transpired? (witness weeping in tears as been directly examined by the Public Prosecutor).

ATTY. DILOY: We request Your Honor that the question not be made in a leading manner! COURT: Place of record the comment! PROS. PERIDA: I withdraw that Your Honor! Q Where was the short pants which your uncle originally wearing that time? Q A Q A Q A Q A Q A Q A

ATTY. DILOY: He was wearing it Your Honor as described by the witness! PROS. PERIDA: At this moment now, when he was already on top of the victim! ATTY. DILOY: It was answered by the witness! According to the witness, accused was wearing short pants but the upper part of his body the accused had nothing worn! PROS. PERIDA: That is agreed Your Honor. Now my question is, at the time Kakingcio Caete was already on top of Alma where was this short pants! ATTY. DILOY: It was being worn by the accused! PROS. PERIDA:

COURT: Place it of record that the child witness is crying in the witness stand! PROS. PERIDA: May we ask for suspension Your Honor! I move for suspension considering the condition of the victim witness Your Honor! Hes already crying!

54

COURT: We can come back tomorrow.[8] The Court finds nothing improper in the questions posed by the trial court. Neither are the questions prejudicial to the appellant or suggestive of any partiality of the trial court. It bears stressing that from the testimony of the private complainant, the appellant was wearing his short pants before he mounted her and even when he was already on top of her and managed to penetrate her sexual organ with his penis. The public prosecutor wanted the private complainant to explain to the court how the appellant could have inserted his penis into her vagina considering that he was still wearing his short pants. Although crudely and ungrammatically phrased, the question of the public prosecutor where did he let his penis exit considering that he is then wearing a short pants was not leading. The trial court should have overruled the objection and allowed the private complainant to answer the question. However, the trial court was not precluded from asking questions to avoid further wrangling between the public prosecutor and the appellants counsel which may frightened or unnerved the private complainant, a minor and who was unused to judicial proceedings. After all, the trial court was mandated to discover the truth. As it turned out, the private complainant cried profusely as she testified impelling the trial court to order a continuance. Even the counsel of the appellant agreed to a continuance. Parenthetically, under Sections 19 to 21 of the Rule on Examination of a Child Witness which took effect on December 15, 2000, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of justice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and intimidate the child: Sec. 19. Mode of questioning. The court shall exercise control over the questioning of children so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form.[9] While it may be true that it was dark when the appellant ravished the private complainant in his house, it cannot, however, be gainsaid that the private complainant could have sufficiently identified the appellant as the culprit. The appellant was the uncle of the private complainant. She and her father Paquito had been living with the appellant and his family off and on for years before she and her father were brought back with appellant in January 1996 to Capoocan, Leyte, to live anew with the appellant and his family. The private complainant was thus familiar not only with the physical build of the appellant but also with his voice and peculiar smell. A person may be identified by these factors. Once a person has gained familiarity with another, identification is quite an easy task.[10] In this case, the appellant poked a knife on her neck and whispered to the private complainant before she raped her: Ma, ayaw pagsumat kan imo yaya kay may-ada ako ha imo bubuhaton (Ma, dont tell to your yaya because I will do something to you. Ma was the nickname of Alma, the private complainant. Yaya was Alejandra Caete, the commonlaw wife of the appellant.[11] Moreover, as testified to by the private complainant, the only persons left in the house in the evening of February 1, 1997 were the appellant and his two young children, Paquito, who was blind and an invalid, and the private complainant: PROS. PERIDA: Q You stated that on February 1, there was no light at the place where you were raped. How did you recognize with certainty that it was Kakingcio Caete who raped you?

I object to that Your Honor. It should have been taken during the direct examination. PROS. PERIDA: No, Your Honor. We are already talking about lights Your Honor. COURT: Well, at least for purposes or in the interest of the trial, let the witness answer! WITNESS: A Because we were the only one staying in the house, and besides I can detect his smell.

PROS. PERIDA: Q Why? What was his smell?

WITNESS: A Smells like a smoker.[12]

When Alejandra Caete confronted the appellant on February 5, 1997, with the claim of the private complainant that he raped the latter and demanded that the appellant leave the house, the appellant did not deny the charge and even agreed to leave the house on condition that he be allowed to take his personal belongings with him: PROS. PERIDA: Q On the following day, that was Monday, February 5, 1996, what did you do if any?

WITNESS: A That morning Monday, my auntie Yaya Alejandra went up the hill and I followed them and I told them about my ordeal that I was raped by my Yayo Kaking.

PROS. PERIDA: Q Who was the companion of your Yaya Alejandra who went up the hill?

WITNESS: A Her daughter Ate Belen.

PROS. PERIDA: Q What is her real name?

WITNESS: A Belen Pepito.

PROS. PERIDA: Q Was he already married?

WITNESS: A That her family name is the surname of her mother.

PROS. PERIDA: Q When you told your Yaya Alejandra, how did she react to your information?

WITNESS: A Upon learning about the rape incident she was very angry and she reacted angrily and carried with her the camote tops and went down proceeding towards their house bringing with her a long bolo, in our dialect it is used for farming and cutting grass and a long pointed bolo, a sharp instrument, and upon 55

ATTY. DILOY:

reaching their house they have a quarrel with my uncle. PROS. PERIDA: Q How about you, did you follow your Yaya in going home?

that the private complainant would weave a story of defloration and undergo a medical examination of her private parts and charge the appellant with rape for which, if convicted, he could be meted the penalty of either reclusion perpetua or death. As this Court held: Accused failed to attribute any ill motive on the part of the victim to testify falsely and impute against him the commission of a grave offense such as rape. To the contrary, the trial court observed that the victim lived in place more rural than most rural villages in the country, and was still unaffected by the wordly ways of urban life. It is highly inconceivable for a young barrio lass, inexperienced with the ways of the world, to fabricate a charge of defloration, undergo a medical examination of her private parts, subject herself to public trial, and tarnish her familys honor and reputation unless she was motivated by a potent desire to seek justice for the wrong committed against her.[18] In contrast to the positive and straightforward testimony of the private complainant, the appellants denial of the charge, which is merely a negative self-serving evidence, cannot prevail. Equally undeserving of merit is his defense of alibi. Appellant failed to prove with clear and convincing evidence that it was physically impossible for him to have been in his house at the time when the private complainant was raped.[19] The only evidence adduced by the appellant to prove alibi was his own testimony. By his own admission, the appellants house was barely a thirty-minute walk to the house of Romulo Lukaba. It was thus not physically impossible for the appellant to have been in his house at 8:00 in the evening of February 1, 1996, when the private complainant was raped.

WITNESS: A Yes, sir.

PROS. PERIDA: Q After they quarrel, what transpired?

WITNESS: A My auntie, Yaya Alejandra told my uncle Yayo Kaking to leave the house because he ate his own blood, and Yayo Kaking answered in the affirmative, saying Yes, I will leave the house so long I will bring with me all my belongings.[13]

The credibility of the private complainant was not degraded by her and Alejandra Caetes reporting the sexual assault to the police authorities only on February 5, 1996. The evidence shows that the private complainant was only twelve years old when she was raped by the appellant. She and her father, who was completely blind and a paralytic, were living in the house of the appellant. The latter threatened to kill her if she revealed what he did to her. It was thus easy for the appellant to fulfill the threat if she divulged the violation of her honor.[14] The private complainant could do nothing but cry. When the appellant tried in the evening of February 3, 1996 to violate her again, she ran to a neighbor, Ka Caring, divulged to her that the appellant tried to rape her anew and sought her help. In fact, the private complainant slept in the house of Ka Caring that evening and went back home only the next morning on February 4, 1996. On February 5, 1996, the private complainant revealed to her Yaya Alejandra, the wife of the appellant, that the latter had raped her. In People v. Bea,[15] this Court held that it is not uncommon for a young girl at the tender age of sixteen years to be intimidated into silence and conceal the sexual assault on her by the appellant.[16] When cross-examined by the public prosecutor, the appellant unabashedly admitted that he did not know any improper or ill-motive on the part of the private complainant for charging him with rape, and on the part of his wife Alejandra Caete for reporting the sexual assault on the private complainant by the appellant to the police authorities: Q The complainant here testified in Court that she was raped by you at 9:00 oclock in the evening of February 1, 1996. Are you aware of that? No, sir. In fact the victim here testified that it was your very own wife who accompanied her to report this matter to the barangay (sic) Chairman of Barangay Gayad, and likewise reported this matter to the PNP of Capoocan. Are you aware of that? No, sir. Do you know of any reason or reasons why your own wife would report this rape incident against your person? I dont know sir what is her reason. And you dont know likewise of any reason or reasons why your own niece, a twelve (12) year old child would accuse you of rape, right? I dont know also, sir.[17]

Proper Penalty on Appellant

The trial court imposed the death penalty on the appellant on its finding that the appellant used a knife when committing the crime and that the private complainant was under eighteen years of age and the niece of the appellant and, hence, a relative of the private complainant within the third civil degree. This Court agrees with the trial court that the appellant used a knife in committing the crime charged and that he is the uncle of the private complainant and, hence, her relative within the third civil degree. However, as to the latter, there is no allegation in the Information that the appellant is the uncle of the private complainant as required by Section 8 of Rule 110 of the Revised Rules of Criminal Procedure.[20] In People v. Bernaldez,[21] this Court held that the minority of the private complainant and her relationship to the appellant must be alleged in the Information because these circumstances are special qualifying circumstances for rape to warrant the imposition of the death penalty. Although this rule took effect on December 1, 2000, or before the crime charged in the Information was committed, the Court has consistently applied the rule retroactively. Thus, since the relationship of the private complainant and the appellant was not alleged in the Information, the appellant cannot be convicted of qualified rape, otherwise he would be deprived of his right to be informed of the nature of the charge against him. The appellant may only be convicted of simple rape with the special aggravating circumstance of use of a deadly weapon in the commission of the crime. Rape with use of a deadly weapon is punishable by reclusion perpetua to death under the third paragraph of Article 335 of the Revised Penal Code, as amended. Since the prosecution failed to prove any aggravating circumstance in the commission of the crime, the appellant may be meted only the penalty of reclusion perpetua conformably with Article 63 of the Revised Penal Code.

A Q

A Q

A Q

Civil Liability of Appellant

The records show that the private complainant lived in a rural area, unaffected by the worldly ways of urban life. It is thus incredible 56

The trial court ordered the appellant to pay P50,000 as civil indemnity but failed to award moral damages and exemplary damages considering the tender age of the private complainant and of the uncle-niece relationship of the appellant and the private complainant.[22] In light of recent case law, the Court must order the appellant to pay the private complainant the amounts of P50,000 as moral damages[23] and P25,000 as exemplary damages. IN LIGHT OF ALL THE FOREGOING, the Decision of the Regional Trial Court of Leyte, Branch 36, in Criminal Case No. 2523, is hereby AFFIRMED WITH MODIFICATION. The appellant KAKINGCIO CAETE is found guilty beyond reasonable doubt, as principal, of simple rape under Article 335 of the Revised Penal Code, as amended, and is meted the penalty of reclusion perpetua, and ordered to pay to private complainant Alma Caete the amounts of P50,000 as civil 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, Corona, Carpio-Morales, and Azcuna, JJ., concur. Ynares-Santiago, J., on leave.

57