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EN BANC

ASSOCIATE JUSTICE DELILAH VIDALLON-MAGTOLIS, COURT OF APPEALS,

A.M. No. CA-05-20-P (Formerly OCA IPI No. 0581-CA-P) Complainant, Present: DAVIDE, JR., C.J., * PUNO, ** PANGANIBAN, * QUISUMBING, * YNARES-SANTIAGO, SANDOVAL-GUTIERREZ, CARPIO, AUSTRIA-MARTINEZ, CORONA, * CARPIO MORALES, CALLEJO, SR., * AZCUNA, TINGA, CHICO-NAZARIO, and GARCIA, JJ.
*

- versus -

CIELITO M. SALUD, CLERK IV, COURT OF APPEALS, Promulgated: Respondent. September 9, 2005 x----------------------------------- ---------------x DECISION

CALLEJO, SR., J.:

Cielito Salud, Clerk IV, Mailing Section of the Judicial Records Division, Court of Appeals (CA) stands charged with the following offenses: 1. 2. 3. Inefficiency and incompetence in the performance of official duties; Conduct grossly prejudicial to the best interest of the service; and Directly or indirectly having financial and material interest in an official transaction, under Section 22, paragraphs (p), (t) and (u), Rule XIV of the Omnibus Rules [1] Implementing the Civil Service Law.

The Facts

Melchor Lagua was found guilty of homicide in Criminal Case Nos. 118032-H and 118033-H before the Regional Trial Court of Pasig City, Branch 163.
[2]

On appeal, the case was assigned to the Sixth Division of the

Court of Appeals, docketed as CA-G.R. CR No. 27423. Lagua, who was then detained at the Bureau of Prisons National Penitentiary in Muntinlupa City, filed a Very Urgent Petition for Bail. Finding the petition well-taken, the appellate court issued a Resolution on October 9, 2003, directing him to post a P200,000.00 bond.

Laguas bond was approved in a Resolution

[3]

dated November 6, 2003, where the appellate court also

directed the issuance of an order of release in favor of Lagua. The resolution was then brought to the Office of the Division Clerk of Court, Atty. Maria Isabel M. Pattugalan-Madarang, for promulgation.

Irma Del Rosario, Utility Worker, noticed the respondents unusual interest in the Lagua case. The respondent had apparently been making inquiries whether the appellate court had already directed the issuance of an order of release in the said case and was initially told there was none yet. Due to his persistence, the records of the case were eventually found. Upon Bond,
[5] [4]

Atty. Madarang then directed the typing of the Order of Release


[6]

and to notify the mailing section that there were orders requiring personal service.

At around 4:00

p.m., the respondent then went to Atty. Madarangs office and assisted in arranging and stapling the papers for release. He brought the said resolutions and other papers himself to the Mailing Section.
[7]

On November 7, 2003, the respondent went to the National Penitentiary to serve the resolution and order of release in the Lagua case. The respondent left the prison compound at around 2:30 p.m.
[8]

In the meantime, Atty. Madarang received a telephone call from a certain Melissa Melchor, who introduced herself as Laguas relative. It was about 2:00 p.m. The caller asked h er how much more they had to give to facilitate Laguas provisional liberty. The caller also told Atty. Madarang that they had sought the help of a certain Rhodora Valdez of the Regional Trial Court (RTC) of Pasig, where the criminal case originated, but were told that they still had a balance to be given to Justice Magtolis and Atty. Madarang through the respondent. Atty. Madarang then called the said court and asked to speak to Ms. Valdez, pretending to be Laguas relative.

What transpired thereafter is contained in Atty. Madarangs Affidavit dated December 8, 2003, as follows: 4. That upon telephone queries made with the office of the Clerk of Court of RTC Pasig, I learned that Rhodora Valdez is the incumbent Process Server of RTC, [Branch] 163, Pasig City, from which the original case against accused-appellant Lagua originated. Disguising myself as accused-appellant Laguas relative, I dialed [Branch] 163, RTC, Pasig (6314273) but Rhodora Valdez did not report for work that day, according to Baby (also known as Ester), her officemate (who) answered my call. She added that Rhodora Valdez has been waiting for us (Laguas relatives) to call. Her exact words were these: Wala si Rhodora. Meron lang siyang nilakad. Pero kahapon pa nya hinihintay ang tawag nyo. May kulang pa kayo eh. Kailangan kasing i-en banc sa Court of Appeals ang kaso ni Lagua. That I coordinated with Ms. Cecil Secarro, the Acting Chief of the Mailing Section, to inquire if it was usual/normal for her to text her process servers on the field for an update of their deliveries, to which she answered in the affirmative. While she was in the office, she texted Salud for his whereabouts and he replied, that he was on his way back to Quezon City. That was before 4 p.m., adding that his deliveries were ok.

5.

6.

That I got Saluds mobile phone number from Ms. Secarro and started texting him at about the same time Ms. Secarro did. I represented myself as Arlyn, Laguas relative. Most of his text messages are still stored in my mobile phone. In fact, I received one text message from him while I was at the office of Justice Magtolis, (the Chairman of the th 6 Division and the ponente of C.R. No. 27423) in the late afternoon of November 7, 2003 while reporting to her this incident. Those stored in my phone are the following: 1. bkit, C rhodora to. 639204439082. Nov. 2003, 15:36:15 2. CNO KAMAGANAK AT ANONG PANGALAN MO 639204439082, 7 Nov 2003 16:14:47 3. SINO K KC NAGHIWALAY N KAMI 639204439082, 7 Nov 2003 16:40:21 4. TAWAG K S AKIN 639204439082 7 Nov 2003 17:18:47 5. NARELEASE N C MR. LAGUA. NAGKITA N B KAYO 639204439082-7 Nov 2003 19:44:52 6. Magkano b and binigay nyo sa middle nyo. Puede bang malaman 639184470111-7 Nov 2003 20:32:05 7. Gud evening. May gusto lng akong malaman. Sana alang makaalam kahit cino. Lito 6391844701117 Nov. 2003 19:54:20 8. Cno ang kausap n Rhodora. Pwede bang malaman 639184470111-7 Nov 2003 20:37:57 9. May landline ka. Tawagan kta bukas nang umaga 639184470111-7 Nov 2003 20:56:31 10. Wag s Court of Appeal. Txt na lang kta kung saan. 639184470111-7 Nov 2003 20:52:58 11. Gusto mo bukas nang umaga magkita tyo. 639184470111 7 Nov 2003 20:57:10 12. D ba pwede bukas tyo kita. May gusto lang ako malaman 639184470111 7 Nov 2003 21:02:41 13. D 2ngkol kay rhodora duon sa kasama ko kaninang lalakeng pinsan 639184470111 7 Nov 2003, 21:04:28 14. Ala po ako sa Lunes sa opis. Sa hapon po puede kyo 639184470111, 7 Nov 2003 21:07:23 15. Kay Melchor Lagua 639184470111 7 Nov 2003 21:08:19 16. Kasama ko cya kanina nang lumabas 639184470111 7 Nov. 2003 21:13:05 17. Ano m ba Melchor Lagua 639184470111 7 Nov 2003 21:15:52 18. Between 5 and 5:30 ng hapon. Bkit. 639184470111 7 Nov. 2003 21:54:24 19. 3 PM PUWEDE KB 639004039082 10 Nov 2003 12:09:32 20. Kilala mo b c rhodora. Nagkita na b kayo. Ala naman problema sa kanya. Ok naman 639184470111 7 Nov 2003, 21:57:13 21. MAGKITA N LANG TAYO 639204439082 10 Nov. 2003, 12:20:16 22. A, OK, NAGKITA N B KAYO NG KAMAGANAK MO 639204439082 10 Nov 2003 15:12:14

23. D TALAGA AKO DARATING DAHIL WALA AKONG KAILANGAN S IYO. 639204439082 10 Nov 2003 18:36:03 7. That Salud called me up in the morning of November 8, 2003 at around 7:33 but I purposely did not answer him. Why did he need to call me up? That I personally called up the Bureau of Prisons for the exact time the Order of Release was delivered and when accused appellant Lagua was released. I learned that the Order of Release was received at 9:15 A.M. and that Lagua was released between 5-5:30 P.M. of November 7, 2003. That I was able to talk to Rhodora Valdez the following Monday, November 10, 2003. Again, I introduced myself as Laguas relative, Arlyn a nd told her I only wanted to know how much more we had to pay for Laguas release. She refused to entertain me because according to her, Hindi ikaw ang kausap ko. Duda ako sa yo. Kung gusto mo, puntahan mo ako dito bukas, para magkita tayo. Pero lumabas na si Lagua. Itinawag sa akin ni Lito Salud. Then, she [hung] up.

8.

9.

10. That on Tuesday, November 11, 2003, I brought Salud, accompanied by Ms. Secarro to Justice Magtolis. Out of the confrontation, we discovered that Salud did not properly serve the copies of the Resolution and Order of Release upon the accused-appellant and his counsel, Atty. Salvador C. Quimpo of the Quimpo Dingayan-Quimpo and Associates. He gave them to a certain Art, allegedly Laguas relative who he claimed approached him at the Bureau of Prisons in the morning of November 7, 2003. He told Justice Magtolis that he gave these documents to Art, who promised to take care of them, even before he could deliver the copy addressed to the Director of Prisons. He never mentioned that this Art was connected with the office of accused-appellants counsel. Because of this information from Salud himself, I did not sign the Certificate of Service, Annex C. 11. That several days later, Salud accompanied by Ms. Secarro, came to my office to apologize. But before he could even say a word, he broke down in [wails]. In between his [9] loud cries, he uttered, Boss, patawad po, alang-alang sa aking mga anak.

On November 11, 2003, Justice Magtolis called the respondent to her office. When confronted, the respondent denied extorting or receiving money for Laguas release, or in any other case. He, however, admitted serving the copies of resolution and order of release intended for Lagua and his counsel to Art Baluran.
[10]

Justice

Magtolis then called the respondent to a meeting with Clerk of Court Atty. Tessie L. Gatmaitan, who stated that she would transfer the respondent to another office which has nothing to do with cases.

Justice Magtolis lodged the complaint against the respondent in a Letter dated November 14, 2003, containing, among others, the following allegations: The delivery of resolutions/orders to unauthorized persons and complete strangers who promised to take care thereof (siya na raw ang bahala) constitutes not only neglect of duty but also conduct prejudicial to the best interest of the service. Staying for the whole day within the vicinity of the National Bilibid Prisons to the point of failing to fulfill his other duties for the day constitutes inefficiency and incompetence in the performance of official duties. On the other hand, the use of my name and that of our Division Clerk of Court to illegally solicit financial or material benefit from parties with pending cases before this Court is illegal per se. In view of the foregoing, it is respectfully requested that Cielito Salud be subjected to [11] an administrative investigation and disciplinary action.

Attached to the complaint were the following documents to support the charges:

ANNEX A - Record of the cases received by Salud on November 6, 2003 for delivery/service the following day, November 7, 2003. Please note that in each of the 3 cases assigned to him, there are several parties/counsels to be served. ANNEX B - Certificate of Service signed by Salud, attested by the Acting Chief of the Mailing Section and Division Clerk of Court Ma. Ramona L. Ledesma, showing that the parties/counsel in SP-67586 were served only on November 10, 2003 (not on November 7, 2003). ANNEX C Certificate of Service for CR-27423, and corresponding Delivery Receipts.

C-1 - Delivery Receipts for Defense Counsel Salvador Quimpo signed by someone whose signature was identified by Salud [as] Art a cousin of appellant Melchor Lagua. C-2 - Delivery Receipt for the accused-appellant, received by the same Art and not served thru the Director of Prisons. C-3 - Delivery Receipt for the OSG, showing that it was delivered/received by the said office on November 10, 2003, not on November 7, 2003. C-4 - Delivery Receipt for the Director of Prisons showing receipt on November 7, 2003. ANNEX D - Record of Resolutions in 3 other cases (SP-80241, SP-65404 and SP-77957) received for service by Salud on November 10, 2003. The resolutions/processes in these 3 cases were delivered/served to the parties/counsel on November 10, 2003 together with undelivered resolutions left unserved/undelivered on November 7, 2003. ANNEX E - Certification signed by Salud showing service to parties/counsel in SP-65404 (received by Salud on November 10, 2003) on November 10, 2003 (same date) ANNEX F, F-1 & F-2 - Delivery Receipts for parties/counsel in SP-65404, showing service/delivery on November 10, 2003 in contrast to his minimal delivery/services on November 7, 2003 only in Muntinlupa. ANNEX G - Copy of the resolution dated November 6, 2003 of the 6 Division approving the appellants bond and directing the issuance of an order of release. ANNEX H - Copy of the Order of Release upon Bond, which Salud was supposed to deliver, among others on November 7, 2003 to the defense counsel, the appellant and the [12] OSG.
th

In his counter-affidavit,

[13]

the respondent vehemently denied the charges. He never demanded money

from Laguas relative; his name had been used by someone and was, thus, a mere victim of the circumstances. Moreover, the fact that he immediately released the CA order in question was clear proof that he had no financial interest in the transaction. His version of the events that occurred that day is as follows: 4.1 That on November 6, 2003 at around 1:38 p.m. the Acting Chief of the Mailing Section gave me an assignment to deliver the Writ of Habeas Corpus (hearing on November 26, 2003 at RTC, Zamboanga) for CA-G.R. SP No. 80238 for delivery to NBI, PAO, Quezon City, Muntinlupa; That I delivered a copy of the Writ of Habeas Corpus to [the National] Bureau of Investigation (NBI); That while I was at the NBI, I received a text message from my boss, requesting me to return to the office immediately because there is another notice of resolution coming from Atty. Ledesma which I have to serve to Quezon City and Las Pias; In compliance with the request, I returned to the Office and arrived at around 3:15 p.m.;

4.2

4.3

4.4

4.5

That when I received the resolution, I read the same and found out that the hearing is still scheduled on December 10, 2003 at 10:30 a.m.; That when I was about to leave to deliver the Writ of Habeas Corpus and the Notice of Hearing to the PAO, Quezon City, my officemate Jun Vicencio told me to wait because Irma, the staff of Atty. Madarang requested me to standby because I need to deliver the Order of Release to the New Bilibid Prison, Muntinlupa; That because of the request I waited until 4:00 p.m.; That because its already late, I decided to go to Atty. Madarangs office to inquire about the Order of Release which I need to deliver to the New Bilibid Prison, Muntinlupa; That Atty. Madarang told me to wait a little while because the order is about to be finished. So I waited. That Atty. Madarang gave to me the Order of Release at 4:15 p.m. That because I am aware that I may not reach [the] New Bilibid Prison on time, I told Atty. Madarang that I can deliver it on November 7, 2003, early in the morning. She agreed and told me THANK YOU Ikaw na ang bahala; That I informed my boss about the Order of Release that was assigned to me and she had it listed in our logbook. I asked my boss [Cecil Secarro] if I can deliver the Notice of Hearing for SP 67586 and the others on Monday if I cannot finish delivering them on November 7, 2003. She agreed but told me to be sure that the Order of Release will be served first and the others be served not later than Monday, November 10, 2003. Thereafter, I went home. That on November 7, 2003, I went straight to [the] New Bilibid Prison and arrived there before 8:00 [a.m.] Unfortunately, all the staff wearing white uniforms and the security guards were falling in line in front of the building of the New Bilibid Prison. So I could not enter the administration office. That while I was standing in front of the building where the administrative office is located, a certain ART approached me and asked me if I am the personnel of the Court of Appeals who will deliver the Order of Release. That I said yes, and he told me his name and said that he is a relative of MELCHOR LAGUA (prisoner) and is connected with the office of Atty. [Quimpo]. That at around 9:30 [a.m.] I was able to enter the administrative offices but because there was no staff inside I went to the documentation office. The staff in the documentation office told me to submit the Order of Release to the administrative office. He said that they will prepare the documents of MELCHOR LAGUA (prisoner) but also told me that the prisoner might be released on Monday yet because the signatories are busy attending the ongoing 98 anniversary celebration; That I returned to the administrative office and was able to find Mr. JUANITO TORRES, Administrative Officer III, who received the copy for the Director but refused to receive the copy of Mr. LAGUA. He told me to wait for his staff to receive the copy of Mr. LAGUA; That because the staff were not around, I went to the canteen to buy softdrinks to quench my thirst; That Mr. ART followed me in the canteen and told me to assist in the release of Mr. LAGUA because there were no personnel attending to the Order of Release; That since my boss told me to insure the release of the prisoner, I waited for my staff to arrive who will attend to the matter; That I delivered the copy of Mr. LAGUA to the staff. But ART told them he can receive the copy of Mr. LAGUA because he is his relative so, the staff told me to give the copy to ART.

4.6

4.7 4.8

4.9

4.10 4.11

4.12

4.13

4.14

4.15

4.16

4.17

4.18

4.19

4.20

4.21

4.22

That I gave the copy of the Order of Release for the accused to ART. ART also told me that he is authorized to receive the copy for Atty. Quimpo because he is also the representative of the law office. Hence, I also gave the copy for Atty. Quimpo to ART; That I was able to finish my duty at the New Bilibid Prison at around 2:30 [p.m.] and I proceeded to Purok I, 6A Bayanan, Muntinlupa to serve the Writ of Habeas Corpus in CA-G.R. SP No. 80238; That because of [sic] the address of the addressee was incomplete, I found a hard time locating the address of the addressee and when I found Purok I, 6A, the persons thereat do not know JOEL DE LA PAZ. I asked for their help but nobody in the place knew JOEL DE LA PAZ; That I left Muntinlupa late in the afternoon and due to the lack of time I decided to deliver the other documents on the next working day which is Monday, November 10, 2003; That I delivered the other documents on Monday, November 10, 2003, without any problem; That I was surprised when Atty. Madarang later on accused me that I used her name and the name of Justice Magtolis to demand money from Mr. LAGUAS [14] relative.

4.23

4.24

4.25

4.26

4.27

Considering the gravity of the charges, then Acting Presiding Justice Cancio C. Garcia

[15]

referred the

matter to Atty. Elisa B. Pilar-Longalong, Assistant Clerk of Court, for investigation, report, and recommendation.

The Investigation

The requisite hearings were held from December 12, 2003 to August 4, 2004.

Atty. Madarang affirmed the contents of her Affidavit

[16]

dated December 8, 2003. She testified that the

respondent later came to her office along with Ms. Secarro. Amidst his cries, he pleaded, Boss , patawad po, alang-alang sa aking mga anak. She replied, Wait, wala ka namang kasalanan sa akin. Ikaw ang nagpasimuno ng lahat ng ito. The respondent repeated, Boss, patawad po alang alang sa aking mga anak , and Atty. Madarang answered, Okey lang, pinatawad na kita. Hindi naman ako galit sa iyo.
[17]

Justice Magtolis testified that Atty. Madarang reported having received a telephone call from the alleged relative of Lagua. She narrated that she gave the name Arlyn to the caller, and, thereafter, exchanged text messages with the respondent. Justice Magtolis instructed Atty. Madarang to continue communicating with the respondent and, if possible, to see it through a possible pay-off where a National Bureau of Investigation (NBI) agent would be asked to assist them. However, the entrapment did not materialize. The respondent thereafter came to her office, where he was asked why he was unable to serve all the other papers and documents that day.
[18]

He also admitted that he served a copy of the resolution to the wrong person (Baluran). Justice Magtolis

also stated that she threatened to transfer the respondent, and that the latter vehemently objected, pleaded, and cried saying, Huwag naman pong pa-transfer. When asked why, the respondent said that he has children in school and something like, Dyan po ako kumikita.
[19]

Another witness was Cristy Flores, convicted of three counts of estafa who served time at the Correctional Institute for Women in Batangas City. She testified that the respondent was introduced to her in December 1998 by a certain Crisanta Gamil.
[20]

Gamil was also detained at the correctional facility; the

respondent had worked on her appeal bond papers and asked for P20,000.00 to facilitate the issuance of the appeal bond.
[21]

The payment was made right in front of her, and the respondent issued a receipt.

[22]

The witness
[23]

also testified that Gamil told her, O, at least dyan mo ipalakad ang papel mo. Okay yan, sigurado.

The

respondent visited her in May 1999, as she had asked him to fix her appeal bond. During the visit, the respondent took the pertinent documents from her. payment ofP7,000.00
[25] [24]

The witness also stated that she gave the respondent a partial
[26]

on May 16, 1999 and he issued a receipt.

They then proceeded to the Documents

Section where they secured copies of the court decision, certificate of manifestation and her picture. She made

the last payment of P13,000.00 in June 13, 1999, and also issued a receipt. The respondent was also asking for an additional payment ofP15,000.00, which she was unable to give. Flores narrated that she introduced another detainee to the respondent, Dalawangbayan, whom the latter was also able to help. She stated that according to Dalawangbayan, the respondent asked for P200,000.00. She further testified that she knew the respondent as Joselito M. Salud, and not Cielito Salud.
[27]

After the incident, she wrote a letter to Associate Justice Conrado Vasquez, Jr. to ask for assistance

regarding her appeal bond.

Atty. Salvador Quimpo, Laguas counsel, testified that it was Engineer Art Baluran who hired him as counsel of the said accused. He stated that he gave an oral authorization to Baluran to get the CA resolutions or orders; Baluran was the one who furnished him a copy of the resolution.
[28]

He called Mr. Baluran to say that an

order for Laguas release had already been issued by the appellate court. The witness stated, however, that he had never seen the respondent before.
[29]

The respondent testified that he has been a CA employee since 1991. He admitted that he knew Flores, and met her in January 1999 when he brought Gamils order of release in the Batangas City Jail. He claimed that he was waiting for the relatives of Gamil as they were the ones who would pay for his fare home, and while waiting, he talked to the jailguard/warden. Flores then approached him and asked him if he was from the CA. When the respondent answered in the affirmative, Flores replied that Justice Vasquez was her neighbor in Bian, Laguna.

The respondent admitted that he was in the Correctional Institute for Women in Mandaluyong City on May 16, 1999, as he was then visiting Vilma Dalawangbayan. He also saw Flores.
[30]

When asked why he visited

Dalawangbayan, the respondent replied that Flores had written a letter to him (which he dubbed as maintrigang sulat)
[31]

addressed Lito Salud, Mailing Section, Court of Appeals. In the said letter, Flores asked him to help

Dalawangbayan, just like he had helped Gamil. The respondent then showed the letter to then Chief of Office Prudencio B. Aguilar, who told him, Puntahan mo yan, Lito at maintriga yang sulat na yan, baka tayo mapahamak dyan.
[32]

Thus, he went to the Correctional Institute in Mandaluyong City to sort things out with

Dalawangbayan and Gamil. The respondent, however, stated that he could not find the letter anywhere and had already been lost.
[33]

During his May 16, 1999 visit to the correctional facility, Flores approached him in the visiting hall, and said suddenly, Sandali lang, Kuya, then left. He then talked to Dalawangbayan about the controversial letter, explaining that his job in the Court of Appeals was only to remand the records and deliver the Orders for release, just like what he did in Gamils case.
[34]

He again visited Dalawangbayan on June 13, 1999

[35]

as evidenced by

the entries in the visitors logbook. He was no longer able to speak to Flores, but made five other such visits to Dalawangbayan in the correctional facility.

The Findings of the Investigating Officer

In her Report dated January 21, 2005, Atty. Longalong found that the respondent was guilty as charged, and made the following recommendation: In view of all the foregoing, there is substantial evidence to hold respondent liable for the offenses charged. He is liable for inefficiency and incompetence in the performance of his official duties and for conduct prejudicial to the best interest of the service when he admittedly served the copies of the resolution and order of release in the Lagua case intended for detained appellant and his counsel on Mr. Baluran whom he admitted to have met only on that day, against the rules and normal office procedure on personal service. His long stay in the Bureau of Prisons also caused the delay in the service of other court processes assigned to him for service on that day. He is also liable for having financial or material interest in an official transaction considering his undue interest in the service of the order of release and actual release of Lagua to the point of staying almost the whole day in the Bureau of Prisons and the aborted deal as can be concluded from the phone call of Melissa Melchor to Atty. Madarang and subsequent exchange of text messages with Atty. Madarang disguising as Laguas relative. RECOMMENDATION: 1. Rule IV, Section 52 of Civil Service Commission Memorandum Circular No. 19, S. 1999, issued pursuant to Book V of the Administrative Code of 1987, provides that the penalty for the first offense of inefficiency and incompetence in the performance of official duties, for conduct prejudicial to the best interest of the service and for directly or indirectly having financial and material interest in any official transaction is suspension for a period of 6 months, 1 day to 1 year. Pursuant to Section 55 of the same Memorandum Circular, if the respondent is found guilty of 2 or more charges, the penalty to be imposed should be that corresponding to the most serious charge and the rest shall be considered as aggravating circumstances. Section 54-c of the same Memorandum Circular provides that the maximum of the penalty shall be imposed where only aggravating and no mitigating circumstances are present. Since in this case, the penalty is the same for all 3 offenses, the maximum of the penalty for the first offense which is suspension for 1 year [may be] imposed on the respondent. 2. Considering that the prescribed penalty for the offense exceeds one month suspension, the case may now be referred to the Supreme Court for appropriate action, [36] pursuant to Circular No. 30-91 of the Office of the Court Administrator.

The Ruling of the Court

On the charge of inefficiency, the respondent is clearly administratively liable. After serving Laguas copy of the resolution and order of release to the prison Director, he should have immediately returned to his station or served the other resolutions and documents for personal service. As an officer of the court, the respondent plays an essential part in the administration of justice. He is required to live up to the stringent standards of his office, and his conduct must, at all times, be above reproach and suspicion. He must steer clear of any act which would tend to undermine his integrity, or erode somehow the peoples faith and trust in the courts.
[37]

As the respondent himself admitted, he stayed on until 2:30 p.m. without any valid reason, despite the

fact that he knew he still had to serve several orders and resolutions. As pointed out by the Investigating Officer, inefficiency and incompetence in the performance of official duties is classified as a grave offense, and is punishable by suspension for six months and one day to one year.
[38]

Indeed, the complainant in administrative proceedings has the burden of proving the allegations in the complaint by substantial evidence. If a court employee is to be disciplined for a grave offense, the evidence against him must be competent and derived from direct knowledge; as such, charges based on mere suspicion and speculation cannot be given credence. Thus, if the complainant fails to substantiate a claim of corruption and bribery, relying on mere conjectures and suppositions, the administrative complaint must be dismissed for lack of merit.
[39]

However, in administrative proceedings, the quantum of proof required to establish malfeasance is not

proof beyond reasonable doubt but substantial evidence, i.e., that amount of relevant evidence that a reasonable mind might accept as adequate to support a conclusion, is required.
[40]

The findings of investigating magistrates

on the credibility of witnesses are given great weight by reason of their unmatched opportunity to see the deportment of the witnesses as they testified.
[41]

To determine the credibility and probative weight of the testimony of a witness, such testimony must be considered in its entirety and not in truncated parts. To determine which contradicting statements of a witness is to prevail as to the truth, the other evidence received must be considered.
[42]

Thus, while it is true that there is no

direct evidence that the respondent received any money to facilitate the release of detained Lagua, the following circumstances must be taken as contrary to the respondents plea of innocence:

First. The respondent admitted that he was the sender of the first three text messages in Atty. Madarangs cellphone: bkit, C rhodora to; CNO KAMAGANAK AT ANONG PANGALAN MO; and SINO K KC NAGHIWALAY N KAMI. The respondents testimony on the matter is as follows: Q: In the hearing of December 2, 2003, in the TSN on page 32 onwards

ATTY. ROSERO: Is that the testimony of Atty. Madarang, Justice? JUSTICE MAGTOLIS: Oo. I will just refer to your admission through your counsel that Cellphone No. 6392044390[8]2 is yours. You admitted that? ATTY. ROSERO: I think we made an admission as to that matter, Justice. Well just check the affidavit of Atty. Madarang. JUSTICE MAGTOLIS: Here, admitted. Basahin mo. ATTY. ROSERO: Yes, Justice, admitted but not the cellphone number JUSTICE MAGTOLIS: Sige, ulitin natin, 6392044390[9]2. ATTY. ROSERO: Yes, admitted. That is his cellphone. JUSTICE MAGTOLIS: This cellphone is yours. Q: Do you also admit that you called Atty. Madarang several times on November 7, 2003?

ATTY. ROSERO: November 7 is a Friday. Tumawag ka daw several times kay Atty. Madarang, November 7? JUSTICE MAGTOLIS: Texted, Im sorry I will correct that, texted. A: Nauna po siyang magtext sa akin, Justice, hindi po ako nagtext sa kanya. Nagtext po siya sa akin sumagot po ako sa kanya. There was an exchange several times? Nuong pong text niya sa akin hindi po several times dahil kung makita nyo po dyan.

Q: A:

JUSTICE MAGTOLIS: Let me see the affidavit of Atty. Madarang. After this question, may I ask for a continuance? ATTY. ROSERO: No objection, Your Honor. JUSTICE MAGTOLIS: All these text messages were checked by us with your counsel in the cellphone of Atty. Madarang which were preserved until we allowed her to erase these. There are exchanges here: 6392044390[8]2, November 7. When she texted she answered, Bkit c Rhodora 2 and then second was, Cnong kamaganak anong pangalan mo? This is addressed to you, this is your telephone? Opo. But the one who answered is Rhodora? Ako po yun. Ikaw ang sumasagot. Why did you say that you are Rhodora? Justice, nung ma-receive ko po yong text niya apat na beses ko pong na -receive ang text ni Arlene.

A: Q: A: Q: A:

INVESTIGATOR: Who is Arlene? A: Atty. Madarang. Arlene, sa text po niya sa akin, Sir Lito, kamaganak po ito ni Mr. Lagua. Magkano pa po ba ang kakulangang pera para ibigay ko sa inyo. Si Rhodora ba kasama? Hindi ko po sinagot yon. Pangalawa, yun din p o ang message nya. Ano ito? Sa akin pong kuan, sa pag-iisip ko lang po, bakit dahil si Mr. Art Baluran kamaganak na, ano ito? Text pa ulit pa sya ng pangatlo. Nang-iintriga na to. Pang-apat, intriga to. Text ko nga rin to, lokohan lang tayo. Bkit si Rhodora to yun po ang sagot ko sa kanya. So at that time you already knew about Rhodora? Hindi po, dun, duon po sa text niya nakalagay po dun eh, Si Rhodora kasama ba? So ikinuan ko po na si Rhodora to, dun po sa text nya. Nakipaglokohan ka? Sa text niya nakalagay dun na Si Rhodora ba kasama kaya po ako nakipaglokohan [43] dun.

Q: A:

Q: A:

As pointed out by the Investigating Officer, the respondents claim of joking around ( nakipaglokohan) with an unknown sender of a text message by replying thereto is contrary to a normal persons reaction. This is made even more apparent by the fact that the respondent even admitted that he called Atty. Madarang twice, and when asked why, gave a vague answer, and, when further questioned, even broke down in tears.
[44]

The respondents claim that the admission of the text messages as evidence against him constitutes a violation of his right to privacy is unavailing. Text messages have been classified as ephemeral electronic communication under Section 1(k), Rule 2 of the Rules on Electronic Evidence,
[45]

and shall be proven by the

testimony of a person who was a party to the same or has personal knowledge thereof. Any question as to the

admissibility of such messages is now moot and academic, as the respondent himself, as well as his counsel, already admitted that he was the sender of the first three messages on Atty. Madarangs cell phone.

This was also the ruling of the Court in the recent case of Zaldy Nuez v. Elvira Cruz-Apao.

[46]

In that

case, the Court, in finding the respondent therein guilty of dishonesty and grave misconduct, considered text messages addressed to the complainant asking for a million pesos in exchange for a favorable decision in a case pending before the CA. The Court had the occasion to state: The text messages were properly admit ted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence, which provides: Ephemeral electronic communication refers to telephone conversations, text messages and other electronic forms of communication the evidence of which is not recorded or retained. Under Section 2, Rule 11 of the [said rules], Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . In this case, complainant who was the recipient of the said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in complainants cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and attested to the veracity of the text messages between her and complainant. It is also well to remember that in administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case.

Second. The respondents testimony during the hearings held before Investigating Officer Atty. Longalong is replete with inconsistencies and loopholes. He claimed that he made inquiries from other CA staff and learned that there was indeed a deal between someone in the criminal section and a certain Rhodora of the RTC, Pasig. He further claimed that the said parties wanted to get back at him for immediately serving the release order which prevented them from demanding the balance of the deal from Laguas relative. However, this bare claim was not corroborated by any witness. Moreover, the respondent alleged that two anonymous callers claimed to know something about the case against him; when asked about it, he stated that he no longer exerted efforts to find out who they were as they did not give out their names : JUSTICE MAGTOLIS: Q: On page 5 of your affidavit, you said in paragraph 8 That I made some inquiry and some personnel of the Court of Appeals told me that there is indeed a deal between a staff in the Criminal Section and Rhodora of RTC, Pasig. Can you tell us who is this staff? Ah dito po Justice, hindi po siya nagpakilala, sa telephono po.

A:

INVESTIGATOR: Sino siya? A: Hindi po siya yong tawag po niya sa akin sa telepono nang malaman po dito sa CA na ako ay kinasuhan ninyo tumawag po siya sa Personnel.

JUSTICE MAGTOLIS: Q: A: Who is siya? Ay hindi po siya nagpakilala.

INVESTIGATOR: Lalaki o babae? A: Una po babae tapos yong pangalawa po lalaki.

INVESTIGATOR: Sinong kinakausap? A: Ako po.

INVESTIGATOR: Hinahanap ka? A: Hinahanap po nila ako.

JUSTICE MAGTOLIS: Q: A: Q: A: Q: A: Q: A: What did he tell you? He, lalaki, ano? Sa babae muna po? Oo, babaet lalake ba? Opo. Who was the first caller, the lady or the gentleman? Babae po. Were you the one who answered the phone? Hindi po.

INVESTIGATOR: Hinahanap daw siya. JUSTICE MAGTOLIS: Q: A: Hinahanap ka, okay, when you answered the phone, what did you say? Ang sabi ko po sa kanya, pupuwede mo ba akong matulungan sa paggawa ng affidavit dahil kinasuhan nga ako ni Justice Magtolis.

Q: A:

But you do not know who you were talking to? Tinanong ko nga po kung sino siya eh tumutulong lang daw siya sa akin dahil ang naririnig niyang tsismis din dyan eh baka po si Rhodora ang may ka-kuan sa Criminal. Saan yong ka-kuan? Ang may kausap sa Criminal. Who said na baka si Rhodora ang may kausap sa Criminal? Yon pong kausap ko sa kabilang linya. The name you do not know? Eh tinanong ko naman po kung sino siya ayaw naman po niyang magpakilala. Matutulungan mo ba ako, ibinaba na po ang telepono.

Q: A: Q: A: Q: A:

INVESTIGATOR: Anonymous caller. JUSTICE MAGTOLIS: You are very fond of answering calls. You dont even know the name. Q: A: Q: A: Q: A: Q: That anonymous caller told you that there must be some deals between Rhodora and someone from the Criminal Section? Yun din daw po ang naririnig niyang tsismis dyan sa labas. Tsismis, that was that the caller told you? Opo. And she wanted to help you? Kaya po sinabi din sa akin na tsismis eh hindi pa po pwedeng What did you answer her?

INVESTIGATOR: Anong sagot mo raw? JUSTICE MAGTOLIS: Q: Anong sagot niya sa tulungan kasi nakakarinig siyang tsismis?

INVESTIGATOR: Q A: Ano ang sagot mo? Eh iyon nga ang gusto kong malaman, ang katotohanan. Baka naman pupuwede mo akong matulungan. Sino ba to?

JUSTICE MAGTOLIS: Q: A: Q: A: Q: A: Q: A: Di ba she was the one who offered to help? Ay ayaw daw po naman niyang masabit po ang pangalan niya. But she was the one who called you? Opo. Okay. How did your talk end with this girl or lady? Nung pagsalita ko nga pong baka pupuwede akong tulungan, wala na. How about the man, the gentleman or the boy who called? Same kuan din po ang kanilang kuan e.

JUSTICE MAGTOLIS: Dont use kuan. ATTY. ROSERO:

Sige, Lito, ipaliwanag mo. A: Same kuento rin po, sinabi niya na ganuon din po na narinig din po niya sa labas.

JUSTICE MAGTOLIS: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Q: A: Alright, you were not the one who answered the call? Hindi po. Somebody called you that theres a phone call? Opo. When you answered, what was your first word? Hello! What was the answer at the other end of the line? Hello rin po. What next? Alam mo, ang sabi po niya sa akin ganito po Who was the first one who said something other than hello? Siya po ang nauna. What did she say, the exact words? Exact words, sa naalala kong sinabi niya Alam mo, Mr. Salud, Salud po ang kuan niya sa akin, narinig ko sa labas, istoryahan dyan sa labas na baka si Rhodora ang may ka-kuan dito sa Criminal. Ang sabi ko po sa kanya Iyan din ang itinawag sa akin kahapon. Eh dalawa na kayo eh baka naman pupuwede nyo akong matulungan. Puede ko bang malaman ang pangalan mo? Ganun din po, ayaw na pong magsalita ibinaba na [ang] telepono. Do you know Rhodora? Hindi po. You never met her? Hindi po. You never talked to her? A: Nung pong ipinakiusap nyo sa akin sa telepono po nung tayo poy After the conversation with the lady and that gentleman who called you to offer some help and afterwards did not help at all, what happened? Wala na po. Did you not check with Rhodora, What is this they are talking about that it might be between you and someone in the Criminal Section? You never asked her that? Hindi ko na rin po You did not. But I thought you wanted help from those people who can help you? Eh hindi na nga po sila nagbanggit po ng pangalan dahil po sabi ng unang babae ayaw [47] nga rin po niyang sumabit sa kaso.

Q: A: Q: A: Q:

Q: A: Q: A: Q: A:

This respondents actuation on this matter, if at all true, is again contrary to the normal reaction of one who has been administratively charged, and wants to clear his name of any wrongdoing.

The respondent also admitted visiting an inmate (Vilma Dalawangbayan) at the correctional facility eight times for no apparent reason. This admission lends some credence to the testimony of Flores, that she was the one who introduced him to Dalawangbayan, the person he was visiting. When asked why he frequently visited,

he stated that he found her beautiful (Maganda po siya, Justice), and was on the verge of courting her (Para na nga po akong nanliligaw). The Court believes that this allegation was concocted by the respondent as a mere afterthought, to cover up for his misdeeds.

The Investigating Officer also found that the respondent was high -strung during his testimony, and this finding must be accorded respect. Indeed, when the issue is the credibility of witnesses, the function of evaluating it is primarily lodged in the investigating judge. The rule which concedes due respect, and even finality, to the assessment of the credibility of witnesses by trial judges in civil and criminal cases where preponderance of evidence and proof beyond reasonable doubt, respectively, are required, applies a fortioriin administrative cases where the quantum of proof required is only substantial evidence. The investigating judge is in a better position to pass judgment on the credibility of witnesses, having personally heard them when they testified, and observed their deportment and manner of testifying. Thus, the following findings of Atty. Longalong are well taken: However, respondent denied receiving P20,000 from Gamil and P15,000 from Flores and signing LM Salud on Flores notebooks (Exhibits E -1 and F-1) but admitted visiting Vilma at the Correctional Institute for Women 8 times from May to August 1999. Respondents denial here appears self-serving and incredible considering his admission of going to the Correctional Institute for Women several times for no valid official reason. Moreover, although Flores is a convict for estafa, her testimony on the matter was more consistent and credible. Likewise, respondent admitted seeing Flores at the Correctional Institute for Women and that Flores mailed her letter to him on May 16, 1999 which he called maintriga. He also admitted that he told Flores to seek the help of Justice Vasquez on her case. The foregoing, plus the fact that Flores eventually wrote Justice Vasquez, confirms the truth of Flores testimony on the matter. With the aforecited admissions by respondent, the substantial evidence presented by the complainant and her witnesses with their positive and forthright testimonies deserve more credence than respondents self-serving denial and inconsistent and vague testimony. Even the demeanor of complainant and her witnesses give credence to their testimonies than the nervous and [high-strung] demeanor of respondent during his testimony. Moreover, complainant and her witnesses, including the superiors of respondent, have no reason or motive whatsoever to testify falsely against him. Respondents defense of denial is inherently a weak defense. It is well settled that denial, to be believed, must be buttressed by strong evidence of non-culpability, otherwise the denial is purely self-serving and with nil evidentiary value (People of the Philippines v. Arlee, 323 SCRA 201). Like the defense of alibi, denial crumbles in the light of positive declarations (People of the Philippines vs. Ricafranca, 323 SCRA 652).
[48]

Indeed, the Court is looked upon by people with high respect, a sacred place where litigants are heard, rights and conflicts settled and justice solemnly dispensed with. Misbehavior within or around the vicinity diminishes its sanctity and dignity. The conduct and behavior required of every court personnel, from the presiding judge to the lowliest clerk, must always be beyond reproach and circumscribed with the heavy burden of responsibility. Their conduct must, at all times, be characterized by, among other things, propriety and decorum so as to earn and keep the publics respect and confidence in the judicial service.
[49]

Public service

requires the utmost integrity and strictest discipline. Thus, a public servant must exhibit at all times the highest sense of honesty and integrity not only in the performance of his official duties but in his personal and private dealings with other people.
[50]

While there is no direct evidence to suggest that he actually extorted money to facilitate the issuance of the appeal bond and release order which he himself served, the surrounding circumstances, as well as the inconsistencies in his testimony, point towards administrative culpability. The respondents actuations fall short of the standard required of a public servant. He is guilty of gross or grave misconduct. Misconduct is a transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behavior, willful in character, improper or wrong behavior,
[51]

while gross, has been defined as out of all


[52]

measure; beyond allowance; flagrant; shameful; such conduct as is not to be excused.

Under the Omnibus

Civil Service Rules and Regulations, grave misconduct is punishable by dismissal from the service even for the first offense, as it is classified as a grave offense. However, considering that the respondent has not been previously charged nor administratively sanctioned, the Court finds that a penalty of suspension for one year and six months will serve the purpose of disciplining the respondent.

Court personnel, from the lowliest employee to the clerk of court or any position lower than that of a judge or justice, are involved in the dispensation of justice, and parties seeking redress from the courts for grievances look upon them as part of the Judiciary. They serve as sentinels of justice, and any act of impropriety on their part immeasurably affect the honor and dignity of the Judiciary and the peoples confidence in it. any conduct which tends to diminish the image of the Judiciary cannot be countenanced .
[53]

Thus,

IN LIGHT OF ALL THE FOREGOING, respondent Cielito M. Salud is found GUILTY of inefficiency and gross misconduct. He is SUSPENDED for a period of One (1) Year and Six (6) Months, effective immediately. He is further DIRECTED to inform the Court as to the date of his receipt of this Decision to determine when his suspension shall have taken effect.

The Office of the Court Administrator is also DIRECTED to conduct a discreet investigation on the possible involvement of Rhodora Valdez (Utility Worker), and other personnel of the Regional Trial Court of Pasig City, Branch 163. SO ORDERED.

EN BANC

[A.M. No. CA-05-18-P. April 12, 2005]

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent. DECISION PER CURIAM: What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called bad eggs in the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in [1] an administrative case is meted to erring personnel. The above pronouncement of this Court in the case of Mendoza vs. Tiongson bar. This is an administrative case for Dishonesty and Grave Misconduct against Elvira Cruz-Apao th (Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 ) Division, Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos ( P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the latters pending case in the [4] [5] CA, more particularly, CA-G.R. SP No. 73460 entitled PAGCOR vs. Zaldy Nuez. Complainant initially lodged [6] a complaint with the Action Center of the Television program Imbestigador of GMA Network, the crew of which had accompanied him to the Presidential Anti-Organized Crime CommissionSpecial Projects Group (PAOCC[7] SPG) in Malacaang where he filed a complaint for extortion against respondent. This led to the conduct of an entrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 nd September 2004 at the Jollibee Restaurant, 2 Floor, Times Plaza Bldg., corner Taft and United Nations [8] Avenue, Manila, the place where the supposed hand-over of the money was going to take place. Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation pro mpted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office Order No. 297-04[9] [10] CG (Order) which created an ad-hoc investigating committee (Committee). The Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of respondents c ase and to [11] recommend the proper administrative sanctions against her as the evidence may warrant. In accordance with the mandate of the Order, the Committee conducted an investigation of the case and [12] issued a Resolution dated 18 October 2004 where it concluded that a prima facie case of Dishonesty and Serious Misconduct against respondent existed. The Committee thus recommended respondents preventive [13] suspension for ninety (90) days pending formal investigation of the charges against her. On 28 January 2005, [14] the Committee submitted a Report to the new CA Presiding Justice Romeo A. Brawner with its recommendation that respondent be dismissed from service. Based on the hearings conducted and the evidence received by the Committee, the antecedent facts are as follows: Complainants case referred to above had been pending with the CA for more than two [15] years. Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission (CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his former [16] job pending adjudication of the case. Desiring an expeditious decision of his case, complainant sought the assistance of respondent sometime in July 2004 after learning of the latters employment with the CA from her [17] sister, Magdalena David. During their first telephone conversation and thereafter through a series of messages [18] they exchanged via SMS, complainant informed respondent of the particulars of his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to achieve an early resolution of his case. However, a week after their first telephone conversation, respondent allegedly told complainant that a favorable and speedy decision of his case was attainable but the person who was to draft the decision was in [19] return asking for One Million Pesos (P1,000,000.00).
[3] [2]

is applicable to the case at

Complainant expostulated that he did not have that kind of money since he had been jobless for a long time, to which respondent replied, Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya [20] na. Complainant then tried to ask for a reduction of the amount but r espondent held firm asserting that the [21] price had been set, not by her but by the person who was going to make the decision. Respondent even [22] admonished complainant with the words Wala tayo sa palengke iho! when the latter bargained for a lower [23] amount. Complainant then asked for time to determine whether or not to pay the money in exchange for the [24] decision. Instead, in August of 2004, he sought the assistance of Imbestigador. The crew of the TV program [25] accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for extortion. Thereafter, [26] he communicated with respondent again to verify if the latter was still asking for the money and to set up a [27] meeting with her. Upon learning that respondents offer of a favorable decision in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation was formulated by Imbestigador in cooperation with the PAOCC. On 24 September 2004, complainant and respondent met for the first time in person at the 2 Floor of [28] Jollibee, Times Plaza Bldg., the place where the entrapment operation was later conducted. Patricia Siringan [29] (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-law. During the meeting, complainant clarified from respondent that if he gave the amount of One Million Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with the assurance that it would take [30] about a month for the decision to come out. Respondent also explained that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but did not extend to the Supreme Court should [31] the case be appealed later. When respondent was asked where the money will go, she claimed that it will go to a male researcher th whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5 ) Division where [32] complainant case was pending. She also claimed that she will not get any part of the money unless the [33] researcher decides to give her some. Complainant tried once again to bargain for a lower amount during the meeting but respondent asserted that the amount was fixed. She even explained that this was their second transaction and the reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that the amount had been [34] pegged at One Million Three Hundred Thousand Pesos (P1,300,000.00). Complainant then proposed that he pay a down payment of Seven Hundred Thousand Pesos (P700,000.00) while the balance of Three Hundred [35] Thousand Pesos (P300,000.00) will be paid once the decision had been released. However, respondent refused to entertain the offer, she and the researcher having learned their lesson from their previous experience for as then, the client no longer paid the balance of Five Hundred Thousand Pesos (P500,000.00) after the [36] decision had come out. Complainant brought along copies of the documents pertinent to his case during the first meeting. After [37] reading through them, respondent allegedly uttered, Ah, panalo ka. The parties set the next meeting date at lunchtime on 28 September 2004 and it was understood that the money would be handed over by complainant to [38] respondent then. On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2 Edgar [39] [40] delos Reyes arrived at around 11:30 in the morning at Jollibee. Nuez and Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2) agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10) bundles of marked money and paper money [41] which was to be given to respondent. The envelope did not actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead contained paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One Thousand Pesos (P1,000.00), as well as [42] newspaper cut-outs. There were also ten (10) authentic One Hundred Peso (P100.00) bills which had been [43] previously dusted with ultra-violet powder by the PAOCTF. The three other PAOCTF agents were seated a few [44] tables away and there were also three (3) crew members from Imbestigador at another table operating a mini [45] DV camera that was secretly recording the whole transaction. Respondent arrived at around 1:00 p.m. She appeared very nervous and suspicious during the [47] meeting. Ironically, she repeatedly said that complainant might entrap her, precisely like those that were shown [48] on Imbestigador. She thus refused to receive the money then and there. What she proposed was for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive the [49] money. More irony ensued. Respondent actually said that she felt there were policemen around and she was afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and [50] handcuffed. At one point, she even said, Ayan o, tapos na silang kumain, bakit hindi pa sila [51] umaalis?, referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents [52] stood up after a few minutes and went near the staircase where they could still see what was going on.
[46] nd

Complainant, respondent and Siringan negotiated for almost one hour. Complainant and Siringan bargained for a lower price but respondent refused to accede. When respondent finally touched the unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to the Western [54] Police District (WPD) Headquarters at United Nations Avenue for questioning. Respondent became hysterical [55] as a commotion ensued inside the restaurant. On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the [56] restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00). Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found [57] positive for ultra-violet powder that was previously dusted on the money. She was later detained at the WPD Headquarters. At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes Encarnacion [58] Gepty (Atty. Gepty), her immediate superior in the CA at the latters house. She tearfully confessed to Atty. [59] Gepty that she asked for money for a case and was entrapped by police officers and the media. Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent replied, Wala lang maam, [60] sinubukan ko lang baka makalusot. Respondent claimed that she was ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help. The latter instead reminded respondent of the instances when she and her co-employees at the CA were exhorted during office meetings never to commit such [61] offenses. Atty. Gepty rendered a verbal report of her conversation with their divisions chairman, Justice Martin S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29 [63] September 2004. She also later testified as to the contents of her report to the Committee. During the hearing of this case, respondent maintained that what happened was a case of instigation and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came not from her but from complainant. To support her contention, she presented witnesses who testified that it was complainant who allegedly offered money to anyone who could help him with his pending case. She likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the administrative case against her be dismissed. This Court is not persuaded by respondents version. Based on the evidence on record, what happened was a clear case of entrapment, and not instigation as respondent would like to claim. In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the lawbreakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically induces [64] the would-be defendant into the commission of the offense, and he himself becomes a co-principal. In this case, complainant and the law enforcers resorted to entrapment precisely because respondent demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision of the latters pending case. Complainants narration of the incidents which led to the e ntrapment operation are more in accord with the circumstances that actually transpired and are more credible than respondents version. Complainant was able to prove by his testimony in conjunction with the text messages from respondent duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in exchange for a favorable decision of the formers pending case with the CA. The text messages were properly admitted by the [65] Committee since the same are now covered by Section 1(k), Rule 2 of the Rules on Electronic Evidence which provides: Ephemeral electronic communication refers to telephone conversations, text messages . . . and other electronic forms of communication the evidence of which is not recorded or retained. Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral electronic communications shall be proven by the testimony of a person who was a party to the same or who has personal knowledge thereof . . . . In this case, complainant who was the recipient of said messages and therefore had personal knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone number reflected in [66] complainants cellphone from which the messages originated was hers. Moreover, any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when she and her counsel signed and [67] attested to the veracity of the text messages between her and complainant. It is also well to remember that in [68] administrative cases, technical rules of procedure and evidence are not strictly applied. We have no doubt as to the probative value of the text messages as evidence in determining the guilt or lack thereof of respondent in this case. Complainants testimony as to the discussion between him and respondent on the latters demand for One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan, the
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reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of September 2004 at Jollibee. Respondents evidence was comprised by the testimony of her daughter and sister as well as an acquaintance who merely testified on how respondent and complainant first met. Respondents own testimony consisted of bare denials and self-serving claims that she did not remember either the statements she herself made or the contents of the messages she sent. Respondent had a very selective memory made apparent when clarificatory questions were propounded by the Committee. When she was asked if she had sent the text messages contained in complainants cellphone and which reflected her cellphone number, respondent admitted those that were not incriminating but claimed she did not remember those that clearly showed she was transacting with complainant. Thus, during the 17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following transpired: Q: (Respondent) A: Only some of these, your honors. After reading those text messages, do you remember having made those text messages?

Justice Salazar-Fernando: Which one? A: Q: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors .

What else? A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David. Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around 1:09 in the afternoon and you said di me pwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107 Centennial Building.

Q:

A:

Yes, your Honors. Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy Nuez and you said Sige bukas nang tanghali sa Times Pla za, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. para makilala kita o isama mo si Len David.

A:

Opo, your Honors. Q: How about on September 23 at 5:05 in the afternoon when you said Di pwede kelan mo gusto fixed price na iyon.

A:

I dont remember that, your Honors. Q: Again on September 23 at 5:14 p.m. you said Alam mo di ko iyon price and nagbigay noon yung gagawa. Wala ako doon. You dont also remember this?

A:

Yes, your Honors. Q: September 27 at 1:42 p.m. Oo naman ayusin nyo yung hindi halatang pera. You also dont remember that?

A:

Yes Your Honors. Q: September 27 at 1:30 in the afternoon, Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit iyon. You dont remember that?
[69]

A:

No, your Honors.

Respondent would like this Court to believe that she never had any intention of committing a crime, that the offer of a million pesos for a favorable decision came from complainant and that it was complainant and the law enforcers who instigated the whole incident. Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged. This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come from complainant and had she really intended to stop the latter from corrupting her, she could have simply refused to answer the latters messages and calls. This she did not do. She answered those calls and messages though she later claimed she did not remember having sent the same messages to complainant. She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted during the hearing was the [70] proper thing to do under the circumstances. But this course of action she did not resort to either, allegedly [71] because she never expected things to end this way. While claiming that she was not interested in complainants offer of a million pesos, she met with him not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling complainant to stop pestering her would be more effective if she did it in person, the same would have been accomplished with a single meeting. There was no reason for her to meet with complainant again on 28 September 2004 unless there was really an understanding between them that the One Million Pesos (P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of complainant when she learned that the latter had [72] been dismissed by PAGCOR for using illegal drugs. This notwithstanding, she still met with him on 28 September 2004. Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos (P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually said [73] the same, respondent wants this Court to believe that she said it merely to have something to talk about. If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why she had to make up stories merely to test if complainant could make good on his alleged boast that he could come up with a million pesos. It is not in accord with ordinary human experience for an honest government employee to make up stories that would make party-litigants believe that court decisions may be bought and sold. Time and again this Court has declared, thus: Everyone in the judiciary bears a heavy burden o f responsibility for the proper discharge of his duty and it behooves everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of [74] justice. Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have been [75] in the CA, should have known very well that court employees are held to the strictest standards of honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a number of cases, The conduct or behavior of all officials of an agency involved in the administration of justice, from the Presiding Judge [76] to the most junior clerk, should be circumscribed wi th the heavy burden of responsibility. Their conduct must, at all times be characterized by among others, strict propriety and decorum in order to earn and maintain the [77] respect of the public for the judiciary. Respondents actuations from the time she started communicating with complainant in July 2004 until the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in the activity she is being accused of. Respondents solicitation of money from complainant in exchange for a favorable decision violates Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide: SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or exemption for themselves or for others. SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or implicit understanding that such gift, favor or benefit shall influence their official actions. (Underscoring supplied) It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically provides:

INCORPORATION OF OTHER RULES SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code. By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the peoples confidence in it. In the recent case of Aspiras vs. Abalos, complainant charged respondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents representation was false because complainant was subsequently convicted of murder and sentenced to suffer the penalty of reclusion perpetua by [79] the Supreme Court. The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her dismissal from the service. This Court aptly held thus: In Mirano vs. Saavedra, this Court emphatically declared that a public servant must exhibit at all times the highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the [81] principle that public office is a public trust, solemnly enshrined in the Constitution. Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit Court, [82] Bengo, Tawi-Tawi, this Court stated: No position demands greater moral righteousness and uprightness from the occupan t than the judicial office. Those connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . . . . The High Court has consistently held that persons involved in the administration of justice ought to live up to the strictest standards of honesty and integrity in the public service. He should refrain [83] from financial dealings which would interfere with the efficient performance of his duties. The conduct required [84] of court personnel must always be beyond reproach. The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC Branch [85] 14 Cebu City is also worth remembering: Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded [86] of every public official and employee. In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the [87] Committee in their Report recommended that respondent be dismissed from government service for GRAVE [88] MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court Personnel. Finding the Committees recommendation to be supported by more than substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken. WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government, including government-owned and controlled corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED. SO ORDERED.
[80] [78]

Republic of the Philippines SUPREME COURT Baguio City

SECOND DIVISION G.R. No. 182835 April 20, 2010

RUSTAN ANG y PASCUA, Petitioner, vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD, Respondents. DECISION ABAD, J.: This case concerns a claim of commission of the crime of violence against women when a former boyfriend sent to the girl the picture of a naked woman, not her, but with her face on it. The Indictment The public prosecutor charged petitioner-accused Rustan Ang (Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, of violation of the Anti-Violence Against Women and Their Children Act or Republic Act (R.A.) 9262 in an information that reads: That on or about June 5, 2005, in the Municipality of Maria Aurora, Province of Aurora, Philippines and within the jurisdiction of this Honorable Court, the said accused willfully, unlawfully and feloniously, in a purposeful and reckless conduct, sent through the Short Messaging Service (SMS) using his mobile phone, a pornographic picture to one Irish Sagud, who was his former girlfriend, whereby the face of the latter was attached to a completely naked body of another woman making it to appear that it was said Irish Sagud who is depicted in the said obscene and pornographic picture thereby causing substantial emotional anguish, psychological distress 1 and humiliation to the said Irish Sagud. The Facts and the Case The evidence for the prosecution shows that complainant Irish Sagud (Irish) and accused Rustan were classmates at Wesleyan University in Aurora Province. Rustan courted Irish and they became "on-and-off" sweethearts towards the end of 2004. When Irish learned afterwards that Rustan had taken a live-in partner (now his wife), whom he had gotten pregnant, Irish broke up with him. Before Rustan got married, however, he got in touch with Irish and tried to convince her to elope with him, saying that he did not love the woman he was about to marry. Irish rejected the proposal and told Rustan to take on his responsibility to the other woman and their child. Irish changed her cellphone number but Rustan somehow managed to get hold of it and sent her text messages. Rustan used two cellphone numbers for sending his messages, namely, 0920-4769301 and 0921-8084768. Irish replied to his text messages but it was to ask him to leave her alone. In the early morning of June 5, 2005, Irish received through multimedia message service (MMS) a picture of a 2 naked woman with spread legs and with Irishs face superimposed on the figure (Exhibit A). The senders cellphone number, stated in the message, was 0921-8084768, one of the numbers that Rustan used. Irish surmised that he copied the picture of her face from a shot he took when they were in Baguio in 2003 (Exhibit 3 B). After she got the obscene picture, Irish got other text messages from Rustan. He boasted that it would be easy for him to create similarly scandalous pictures of her. And he threatened to spread the picture he sent through the internet. One of the messages he sent to Irish, written in text messaging shorthand, read: " Madali lang ikalat yun, 4 my chatrum ang tarlac rayt pwede ring send sa lahat ng chatter." Irish sought the help of the vice mayor of Maria Aurora who referred her to the police. Under police supervision, Irish contacted Rustan through the cellphone numbers he used in sending the picture and his text messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy. Ramada, Maria Aurora, and he did. He came in a motorcycle. After parking it, he walked towards Irish but the waiting police officers intercepted and arrested him. They searched him and seized his Sony Ericsson P900 cellphone and several SIM cards. While Rustan was being questioned at the police station, he shouted at Irish: " Malandi ka kasi!"

Joseph Gonzales, an instructor at the Aurora State College of Technology, testified as an expert in information technology and computer graphics. He said that it was very much possible for one to lift the face of a woman from a picture and superimpose it on the body of another woman in another picture. Pictures can be manipulated and enhanced by computer to make it appear that the face and the body belonged to just one person. Gonzales testified that the picture in question (Exhibit A) had two distinct irregularities: the face was not proportionate to the body and the face had a lighter color. In his opinion, the picture was fake and the face on it had been copied from the picture of Irish in Exhibit B. Finally, Gonzales explained how this could be done, transferring a picture from a computer to a cellphone like the Sony Ericsson P900 seized from Rustan. For his part, Rustan admitted having courted Irish. He began visiting her in Tarlac in October 2003 and their relation lasted until December of that year. He claimed that after their relation ended, Irish wanted reconciliation. They met in December 2004 but, after he told her that his girlfriend at that time (later his wife) was already pregnant, Irish walked out on him. Sometime later, Rustan got a text message from Irish, asking him to meet her at Lorentess Resort as she needed his help in selling her cellphone. When he arrived at the place, two police officers approached him, seized his cellphone and the contents of his pockets, and brought him to the police station. Rustan further claims that he also went to Lorentess because Irish asked him to help her identify a prankster who was sending her malicious text messages. Rustan got the senders number and, pretending to be Irish, contacted the person. Rustan claims that he got back obscene messages from the prankster, which he forwarded to Irish from his cellphone. This explained, he said, why the obscene messages appeared to have originated from his cellphone number. Rustan claims that it was Irish herself who sent the obscene picture (Exhibit A) to him. He 5 presented six pictures of a woman whom he identified as Irish (Exhibits 2 to 7). Michelle Ang (Michelle), Rustans wife, testified that she was sure Irish sent the six pictures. Michelle claims that she received the pictures and hid the memory card (Exhibit 8) that contained them because she was jealous and angry. She did not want to see anything of Irish. But, while the woman in the pictures posed in sexy clothing, in none did she appear naked as in Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not be seen. Irish denied that she was the woman in those four pictures. As for Exhibits 3 and 7, the woman in the picture was fully dressed. After trial, the RTC found Irishs testimony completely credible, given in an honest and spontaneous manner. The RTC observed that she wept while recounting her experience, prompting the court to comment: "Her tears were tangible expression of pain and anguish for the acts of violence she suffered in the hands of her former sweetheart. The crying of the victim during her testimony is evidence of the credibility of her charges with the 6 verity borne out of human nature and experience." Thus, in its Decision dated August 1, 2001, the RTC found Rustan guilty of the violation of Section 5(h) of R.A. 9262. On Rustans appeal to the Court of Appeals (CA), the latter rendered a decision dated January 31, 8 2008, affirming the RTC decision. The CA denied Rustans motion for reconsideration in a resolution dated April 25, 2008. Thus, Rustan filed the present for review on certiorari. The Issues Presented The principal issue in this case is whether or not accused Rustan sent Irish by cellphone message the picture with her face pasted on the body of a nude woman, inflicting anguish, psychological distress, and humiliation on her in violation of Section 5(h) of R.A. 9262. The subordinate issues are: 1. Whether or not a "dating relationship" existed between Rustan and Irish as this term is defined in R.A. 9262; 2. Whether or not a single act of harassment, like the sending of the nude picture in this case, already constitutes a violation of Section 5(h) of R.A. 9262; 3. Whether or not the evidence used to convict Rustan was obtained from him in violation of his constitutional rights; and 4. Whether or not the RTC properly admitted in evidence the obscene picture presented in the case.
7

The Courts Rulings Section 3(a) of R.A. 9262 provides that violence against women includes an act or acts of a person against a woman with whom he has or had a sexual or dating relationship. Thus: SEC. 3. Definition of Terms. As used in this Act, (a) "Violence against women and their children" refers to any act or a series of acts committed by any person against a woman who is his wife, former wife, or against a woman with whom the person has or had a sexual or dating relationship, or with whom he has a common child, or against her child whether legitimate or illegitimate, within or without the family abode, which result in or is likely to result in physical, sexual, psychological harm or suffering, or economic abuse including threats of such acts, battery, assault, coercion, harassment or arbitrary deprivation of liberty. xxxx Section 5 identifies the act or acts that constitute violence against women and these include any form of harassment that causes substantial emotional or psychological distress to a woman. Thus: SEC. 5. Acts of Violence Against Women and Their Children. The crime of violence against women and their children is committed through any of the following acts: xxxx h. Engaging in purposeful, knowing, or reckless conduct, personally or through another, that alarms or causes substantial emotional or psychological distress to the woman or her child. This shall include, but not be limited to, the following acts: xxxx 5. Engaging in any form of harassment or violence; The above provisions, taken together, indicate that the elements of the crime of violence against women through harassment are: 1. The offender has or had a sexual or dating relationship with the offended woman; 2. The offender, by himself or through another, commits an act or series of acts of harassment against the woman; and 3. The harassment alarms or causes substantial emotional or psychological distress to her. One. The parties to this case agree that the prosecution needed to prove that accused Rustan had a "dating relationship" with Irish. Section 3(e) provides that a "dating relationship" includes a situation where the parties are romantically involved over time and on a continuing basis during the course of the relationship. Thus: (e) "Dating relationship" refers to a situation wherein the parties live as husband and wife without the benefit of marriage orare romantically involved over time and on a continuing basis during the course of the relationship. A casual acquaintance or ordinary socialization between two individuals in a business or social context is not a dating relationship. (Underscoring supplied.) Here, Rustan claims that, being "romantically involved," implies that the offender and the offended woman have or had sexual relations. According to him, "romance" implies a sexual act. He cites Websters Comprehensive Dictionary Encyclopedia Edition which provides a colloquial or informal meaning to the word "romance" used as a verb, i.e., "to make love; to make love to" as in "He romanced her." But it seems clear that the law did not use in its provisions the colloquial verb "romance" that implies a sexual act. It did not say that the offender must have "romanced" the offended woman. Rather, it used the noun "romance" to 9 describe a couples relationship, i.e., "a love affair."

R.A. 9262 provides in Section 3 that "violence against women x x x refers to any act or a series of acts committed by any person against a woman x x x with whom the person has or had a sexual or dating relationship." Clearly, the law itself distinguishes a sexual relationship from a dating relationship. Indeed, Section 3(e) above defines "dating relationship" while Section 3(f) defines "sexual relations." The latter "refers to a single sexual act which may or may not result in the bearing of a common child." The dating relationship that the law contemplates can, therefore, exist even without a sexual intercourse taking place between those involved. Rustan also claims that since the relationship between Irish and him was of the "on-and-off" variety (away-bati), their romance cannot be regarded as having developed "over time and on a continuing basis." But the two of them were romantically involved, as Rustan himself admits, from October to December of 2003. That would be time enough for nurturing a relationship of mutual trust and love. An "away-bati" or a fight-and-kiss thing between two lovers is a common occurrence. Their taking place does not mean that the romantic relation between the two should be deemed broken up during periods of misunderstanding. Explaining what "away-bati" meant, Irish explained that at times, when she could not reply to Rustans messages, he would get angry at her. That was all. Indeed, she characterized their three -month 10 romantic relation as continuous. Two. Rustan argues that the one act of sending an offensive picture should not be considered a form of harassment. He claims that such would unduly ruin him personally and set a very dangerous precedent. But Section 3(a) of R.A. 9262 punishes "any act or series of acts" that constitutes violence against women. This means that a single act of harassment, which translates into violence, would be enough. The object of the law is to protect women and children. Punishing only violence that is repeatedly committed would license isolated ones. Rustan alleges that todays women, like Irish, are so used to obscene communications that her getting one could not possibly have produced alarm in her or caused her substantial emotional or psychological distress. He claims having previously exchanged obscene pictures with Irish such that she was already desensitized by them. But, firstly, the RTC which saw and heard Rustan and his wife give their testimonies was not impressed with their claim that it was Irish who sent the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in the picture was Irish since her face did not clearly show on them. Michelle, Rustans wife, claimed that she deleted several other pictures that Irish sent, except Exhibits 2 to 7. But her testimony did not make sense. She said that she did not know that Exhibits 2 to 7 had remained saved after 11 she deleted the pictures. Later, however, she said that she did not have time to delete them. And, if she thought that she had deleted all the pictures from the memory card, then she had no reason at all to keep and hide such memory card. There would have been nothing to hide. Finally, if she knew that some pictures remained in the card, there was no reason for her to keep it for several years, given that as she said she was too jealous to want to see anything connected to Irish. Thus, the RTC was correct in not giving credence to her testimony. 1avvphi1 Secondly, the Court cannot measure the trauma that Irish experienced based on Rustans low regard for the alleged moral sensibilities of todays youth. What is obscene and injurious to an offended woman can of course only be determined based on the circumstances of each case. Here, the naked woman on the picture, her legs spread open and bearing Irishs head and face, was clearly an obscene picture and, to Irish a revolting and offensive one. Surely, any woman like Irish, who is not in the pornography trade, would be scandalized and pained if she sees herself in such a picture. What makes it further terrifying is that, as Irish testified, Rustan sent the picture with a threat to post it in the internet for all to see. That must have given her a nightmare. Three. Rustan argues that, since he was arrested and certain items were seized from him without any warrant, the evidence presented against him should be deemed inadmissible. But the fact is that the prosecution did not present in evidence either the cellphone or the SIM cards that the police officers seized from him at the time of his arrest. The prosecution did not need such items to prove its case. Exhibit C for the prosecution was but a photograph depicting the Sony Ericsson P900 cellphone that was used, which cellphone Rustan admitted owning during the pre-trial conference. Actually, though, the bulk of the evidence against him consisted in Irishs testimony that she received the obscene picture and malicious text messages that the senders cellphone numbers belonged to Rustan with whom she had been previously in communication. Indeed, to prove that the cellphone numbers belonged to Rustan, Irish and the police used such numbers to summon him to come to Lorentess Resort and he 12 did. Consequently, the prosecution did not have to present the confiscated cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to Irish. His defense was that he himself received those messages from an unidentified person who was harassing Irish and he merely forwarded the same to her, using his cellphone. But Rustan never presented the cellphone number of the unidentified person who sent the messages to him to authenticate the same. The RTC did not give credence to such version and neither will this Court. Besides, it was most unlikely for Irish to pin the things on Rustan if he had merely tried to help her identify the sender. Four. Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for 14 objection. Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies 15 only to civil actions, quasi-judicial proceedings, and administrative proceedings. In conclusion, this Court finds that the prosecution has proved each and every element of the crime charged beyond reasonable doubt. WHEREFORE, the Court DENIES the petition and AFFIRMS the decision of the Court of Appeals in CA-G.R. CR 30567 dated January 31, 2008 and its resolution dated April 25, 2008. SO ORDERED.

13

G.R. No. 170633

October 17, 2007

MCC INDUSTRIAL SALES CORPORATION, petitioner, vs. SSANGYONG CORPORATION, respondents. DECISION NACHURA, J.: Before the Court is a petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. CV No. 2 82983 and its Resolution denying the motion for reconsideration thereof. Petitioner MCC Industrial Sales (MCC), a domestic corporation with office at Binondo, Manila, is engaged in the 3 business of importing and wholesaling stainless steel products. One of its suppliers is the Ssangyong 4 5 Corporation (Ssangyong), an international trading company with head office in Seoul, South Korea and regional 6 headquarters in Makati City, Philippines. The two corporations conducted business through telephone calls and 7 facsimile or telecopy transmissions. Ssangyong would send the pro forma invoices containing the details of the steel product order to MCC; if the latter conforms thereto, its representative affixes his signature on the faxed 8 copy and sends it back to Ssangyong, again by fax. On April 13, 2000, Ssangyong Manila Office sent, by fax, a letter addressed to Gregory Chan, MCC Manager 10 [also the President of Sanyo Seiki Stainless Steel Corporation], to confirm MCC's and Sanyo Seiki's order of 220 metric tons(MT) of hot rolled stainless steel under a preferential rate of US$1,860.00 per MT. Chan, on 11 behalf of the corporations, assented and affixed his signature on the conforme portion of the letter. On April 17, 2000, Ssangyong forwarded to MCC Pro Forma Invoice No. ST2-POSTSO401 containing the terms and conditions of the transaction. MCC sent back by fax to Ssangyong the invoice bearing the conformity 13 signature of Chan. As stated in the pro forma invoice, payment for the ordered steel products would be made 14 through an irrevocable letter of credit (L/C) at sight in favor of Ssangyong. Following their usual practice, delivery of the goods was to be made after the L/C had been opened.
12 9 1

In the meantime, because of its confirmed transaction with MCC, Ssangyong placed the order with its steel 15 manufacturer, Pohang Iron and Steel Corporation (POSCO), in South Korea and paid the same in full. Because MCC could open only a partial letter of credit, the order for 220MT of steel was split into two, one 17 for 110MTcovered by Pro Forma Invoice No. ST2-POSTS0401-1 and another for 110MT covered by ST218 POSTS0401-2, both dated April 17, 2000. On June 20, 2000, Ssangyong, through its Manila Office, informed Sanyo Seiki and Chan, by way of a fax transmittal, that it was ready to ship 193.597MT of stainless steel from Korea to the Philippines. It requested that 19 the opening of the L/C be facilitated. Chan affixed his signature on the fax transmittal and returned the same, by 20 fax, to Ssangyong. Two days later, on June 22, 2000, Ssangyong Manila Office informed Sanyo Seiki, thru Chan, that it was able to secure a US$30/MT price adjustment on the contracted price of US$1,860.00/MT for the 200MT stainless steel, and that the goods were to be shipped in two tranches, the first 100MT on that day and the second 100MT not 21 later than June 27, 2000. Ssangyong reiterated its request for the facilitation of the L/C's opening. Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000, to the Treasury Group of Sanyo Seiki 22 that it was looking forward to receiving the L/C details and a cable copy thereof that day. Ssangyong sent a separate letter of the same date to Sanyo Seiki requesting for the opening of the L/C covering payment of the first 23 100MT not later than June 28, 2000. Similar letters were transmitted by Ssangyong Manila Office on June 27, 24 2000. On June 28, 2000, Ssangyong sent another facsimile letter to MCC stating that its principal in Korea was 25 already in a difficult situation because of the failure of Sanyo Seiki and MCC to open the L/C's. The following day, June 29, 2000, Ssangyong received, by fax, a letter signed by Chan, requesting an extension of time to open the L/C because MCC's credit line with the bank had been fully availed of in connection with 26 another transaction, and MCC was waiting for an additional credit line. On the same date, Ssangyong replied, requesting that it be informed of the date when the L/C would be opened, preferably at the earliest possible time, 27 since its Steel Team 2 in Korea was having problems and Ssangyong was incurring warehousing costs. To maintain their good business relationship and to support MCC in its financial predicament, Ssangyong offered to negotiate with its steel manufacturer, POSCO, another US$20/MT discount on the price of the stainless steel 28 ordered. This was intimated in Ssangyong's June 30, 2000 letter to MCC. On July 6, 2000, another follow-up 29 letter for the opening of the L/C was sent by Ssangyong to MCC. However, despite Ssangyong's letters, MCC failed to open a letter of credit. Consequently, on August 15, 2000, Ssangyong, through counsel, wrote Sanyo Seiki that if the L/C's were not opened, Ssangyong would be compelled to cancel the contract and hold MCC liable for damages for breach thereof amounting to 31 US$96,132.18, inclusive of warehouse expenses, related interests and charges. Later, Pro Forma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-2 dated August 16, 2000 were issued by Ssangyong and sent via fax to MCC. The invoices slightly varied the terms of the earlier pro forma invoices (ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in that the quantity was now officially 100MT per invoice and the price was reduced to US$1,700.00 per MT. As can be gleaned from the photocopies of the said August 16, 2000 invoices submitted to the court, they both bear the conformity signature of MCC Manager Chan. On August 17, 2000, MCC finally opened an L/C with PCIBank for US$170,000.00 covering payment for 100MT 34 of stainless steel coil under Pro Forma Invoice No. ST2-POSTS080-2. The goods covered by the said invoice 35 were then shipped to and received by MCC. MCC then faxed to Ssangyong a letter dated August 22, 2000 signed by Chan, requesting for a price adjustment of the order stated in Pro Forma Invoice No. ST2-POSTS080-1, considering that the prevailing price of steel at 36 that time was US$1,500.00/MT, and that MCC lost a lot of money due to a recent strike. Ssangyong rejected the request, and, on August 23, 2000, sent a demand letter to Chan for the opening of the second and last L/C of US$170,000.00 with a warning that, if the said L/C was not opened by MCC on August 26, 2000, Ssangyong would be constrained to cancel the contract and hold MCC liable for US$64,066.99 (representing cost difference, warehousing expenses, interests and charges as of August 15, 2000) and other damages for breach. Chan failed to reply. Exasperated, Ssangyong through counsel wrote a letter to MCC, on September 11, 2000, canceling the sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of US$97,317.37 representing 38 losses, warehousing expenses, interests and charges.
37 32 33 30 16

Ssangyong then filed, on November 16, 2001, a civil action for damages due to breach of contract against defendants MCC, Sanyo Seiki and Gregory Chan before the Regional Trial Court of Makati City. In its 39 complaint, Ssangyong alleged that defendants breached their contract when they refused to open the L/C in the amount of US$170,000.00 for the remaining 100MT of steel under Pro Forma Invoice Nos. ST2-POSTS04011 and ST2-POSTS0401-2. After Ssangyong rested its case, defendants filed a Demurrer to Evidence alleging that Ssangyong failed to present the original copies of the pro forma invoices on which the civil action was based. In an Order dated April 24, 2003, the court denied the demurrer, ruling that the documentary evidence presented had already been 41 admitted in the December 16, 2002 Order and their admissibility finds support in Republic Act (R.A.) No. 8792, otherwise known as the Electronic Commerce Act of 2000. Considering that both testimonial and documentary evidence tended to substantiate the material allegations in the complaint, Ssangyong's evidence sufficed for 42 purposes of a prima facie case. After trial on the merits, the RTC rendered its Decision on March 24, 2004, in favor of Ssangyong. The trial court ruled that when plaintiff agreed to sell and defendants agreed to buy the 220MT of steel products for the price of US$1,860 per MT, the contract was perfected. The subject transaction was evidenced by Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2, which were later amended only in terms of reduction of volume as well as the price per MT, following Pro Forma Invoice Nos. ST2-POSTS080-1 and ST2POSTS080-2. The RTC, however, excluded Sanyo Seiki from liability for lack of competent evidence. The fallo of the decision reads: WHEREFORE, premises considered, Judgment is hereby rendered ordering defendants MCC Industrial Sales Corporation and Gregory Chan, to pay plaintiff, jointly and severally the following: 1) Actual damages of US$93,493.87 representing the outstanding principal claim plus interest at the rate of 6% per annum from March 30, 2001. 2) Attorney's fees in the sum of P50,000.00 plus P2,000.00 per counsel's appearance in court, the same being deemed just and equitable considering that by reason of defendants' breach of their obligation under the subject contract, plaintiff was constrained to litigate to enforce its rights and recover for the damages it sustained, and therefore had to engage the services of a lawyer. 3) Costs of suit. No award of exemplary damages for lack of sufficient basis. SO ORDERED.
44 43 40

On April 22, 2004, MCC and Chan, through their counsel of record, Atty. Eladio B. Samson, filed their Notice of 45 Appeal. On June 8, 2004, the law office of Castillo Zamora & Poblador entered its appearance as their collaborating counsel. In their Appeal Brief filed on March 9, 2005, RTC:
46

MCC and Chan raised before the CA the following errors of the

I. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS VIOLATED THEIR CONTRACT WITH APPELLEE A. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING THAT APPELLANTS AGREED TO PURCHASE 200 METRIC TONS OF STEEL PRODUCTS FROM APPELLEE, INSTEAD OF ONLY 100 METRIC TONS. 1. THE HONORABLE COURT A QUO PLAINLY ERRED IN ADMITTING IN EVIDENCE THE PRO FORMA INVOICES WITH REFERENCE NOS. ST2POSTS0401-1 AND ST2-POSTS0401-2. II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ACTUAL DAMAGES TO APPELLEE. III. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ATTORNEY'S FEES TO APPELLEE.

IV. THE HONORABLE COURT A QUO PLAINLY ERRED IN FINDING APPELLANT GREGORY CHAN 47 JOINTLY AND SEVERALLY LIABLE WITH APPELLANT MCC. On August 31, 2005, the CA rendered its Decision affirming the ruling of the trial court, but absolving Chan of any liability. The appellate court ruled, among others, that Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2POSTS0401-2(Exhibits "E", "E-1" and "F") were admissible in evidence, although they were mere facsimile 49 printouts of MCC's steel orders. The dispositive portion of the appellate court's decision reads: WHEREFORE, premises considered, the Court holds: (1) The award of actual damages, with interest, attorney's fees and costs ordered by the lower court is hereby AFFIRMED. (2) Appellant Gregory Chan is hereby ABSOLVED from any liability. SO ORDERED.
50 48

A copy of the said Decision was received by MCC's and Chan's principal counsel, Atty. Eladio B. Samson, on 51 52 September 14, 2005. Their collaborating counsel, Castillo Zamora & Poblador, likewise, received a copy of 53 the CA decision on September 19, 2005. On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC, filed a motion for reconsideration of the said 54 decision. Ssangyong opposed the motion contending that the decision of the CA had become final and executory on account of the failure of MCC to file the said motion within the reglementary period. The appellate 55 court resolved, on November 22, 2005, to deny the motion on its merits, without, however, ruling on the procedural issue raised. Aggrieved, MCC filed a petition for review on certiorari Court of Appeals:
56

before this Court, imputing the following errors to the

THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOT IN ACCORDANCE WITH JURISPRUDENCE AND SANCTIONED A DEPARTURE FROM THE USUAL AND ACCEPTED COURSE OF JUDICIAL PROCEEDINGS BY REVERSING THE COURT A QUO'S DISMISSAL OF THE COMPLAINT IN CIVIL CASE NO. 02-124 CONSIDERING THAT: I. THE COURT OF APPEALS ERRED IN SUSTAINING THE ADMISSIBILITY IN EVIDENCE OF THE PRO-FORMA INVOICES WITH REFERENCE NOS. ST2-POSTSO401-1 AND ST2POSTSO401-2, DESPITE THE FACT THAT THE SAME WERE MERE PHOTOCOPIES OF FACSIMILE PRINTOUTS. II. THE COURT OF APPEALS FAILED TO APPRECIATE THE OBVIOUS FACT THAT, EVEN ASSUMING PETITIONER BREACHED THE SUPPOSED CONTRACT, THE FACT IS THAT PETITIONER FAILED TO PROVE THAT IT SUFFERED ANY DAMAGES AND THE AMOUNT THEREOF. III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNT OF US$93,493.87 IS SIMPLY UNCONSCIONABLE AND SHOULD HAVE BEEN AT LEAST REDUCED, IF NOT DELETED 57 BY THE COURT OF APPEALS. In its Comment, Ssangyong sought the dismissal of the petition, raising the following arguments: that the CA decision dated 15 August 2005 is already final and executory, because MCC's motion for reconsideration was filed beyond the reglementary period of 15 days from receipt of a copy thereof, and that, in any case, it was a pro forma motion; that MCC breached the contract for the purchase of the steel products when it failed to open the required letter of credit; that the printout copies and/or photocopies of facsimile or telecopy transmissions were properly admitted by the trial court because they are considered original documents under R.A. No. 8792; and that MCC is liable for actual damages and attorney's fees because of its breach, thus, compelling Ssangyong to litigate. The principal issues that this Court is called upon to resolve are the following: I Whether the CA decision dated 15 August 2005 is already final and executory;

II Whether the print-out and/or photocopies of facsimile transmissions are electronic evidence and admissible as such; III Whether there was a perfected contract of sale between MCC and Ssangyong, and, if in the affirmative, whether MCC breached the said contract; and IV Whether the award of actual damages and attorney's fees in favor of Ssangyong is proper and justified. -IIt cannot be gainsaid that in Albano v. Court of Appeals, we held that receipt of a copy of the decision by one of several counsels on record is notice to all, and the period to appeal commences on such date even if the other counsel has not yet received a copy of the decision. In this case, when Atty. Samson received a copy of the CA decision on September 14, 2005, MCC had only fifteen (15) days within which to file a motion for reconsideration conformably with Section 1, Rule 52 of the Rules of Court, or to file a petition for review on certiorari in accordance with Section 2, Rule 45. The period should not be reckoned from September 29, 2005 (when Castillo Zamora & Poblador received their copy of the decision) because notice to Atty. Samson is deemed notice to collaborating counsel. We note, however, from the records of the CA, that it was Castillo Zamora & Poblador, not Atty. Samson, which filed both MCC's and Chan's Brief and Reply Brief. Apparently, the arrangement between the two counsels was for the collaborating, not the principal, counsel to file the appeal brief and subsequent pleadings in the CA. This explains why it was Castillo Zamora & Poblador which filed the motion for the reconsideration of the CA decision, and they did so on October 5, 2005, well within the 15-day period from September 29, 2005, when they received their copy of the CA decision. This could also be the reason why the CA did not find it necessary to resolve the question of the timeliness of petitioner's motion for reconsideration, even as the CA denied the same. Independent of this consideration though, this Court assiduously reviewed the records and found that strong concerns of substantial justice warrant the relaxation of this rule. In Philippine Ports Authority v. Sargasso Construction and Development Corporation ,
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we ruled that:

In Orata v. Intermediate Appellate Court, we held that where strong considerations of substantive justice are manifest in the petition, this Court may relax the strict application of the rules of procedure in the exercise of its legal jurisdiction. In addition to the basic merits of the main case, such a petition usually embodies justifying circumstance which warrants our heeding to the petitioner's cry for justice in spite of the earlier negligence of counsel. As we held in Obut v. Court of Appeals: [W]e cannot look with favor on a course of action which would place the administration of justice in a straight jacket for then the result would be a poor kind of justice if there would be justice at all. Verily, judicial orders, such as the one subject of this petition, are issued to be obeyed, nonetheless a non-compliance is to be dealt with as the circumstances attending the case may warrant. What should guide judicial action is the principle that a party-litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on technicalities. The rules of procedure are used only to secure and not override or frustrate justice. A six-day delay in the perfection of the appeal, as in this case, does not warrant the outright dismissal of the appeal. In Development Bank of the Philippines vs. Court of Appeals, we gave due course to the petitioner's appeal despite the late filing of its brief in the appellate court because such appeal involved public interest. We stated in the said case that the Court may exempt a particular case from a strict application of the rules of procedure where the appellant failed to perfect its appeal within the reglementary period, resulting in the appellate court's failure to obtain jurisdiction over the case. InRepublic vs. Imperial, Jr., we also held that there is more leeway to exempt a case from the strictness of procedural rules when the appellate court has already obtained jurisdiction over the appealed case. We emphasize that: [T]he rules of procedure are mere tools intended to facilitate the attainment of justice, rather than frustrate it. A strict and rigid application of the rules must always be eschewed when it would subvert the rule's primary objective of enhancing fair trials and expediting justice. Technicalities should never be used to defeat the substantive rights of the other party. Every party-litigant must be afforded the amplest opportunity for the proper and just determination of 60 his cause, free from the constraints of technicalities.

Moreover, it should be remembered that the Rules were promulgated to set guidelines in the orderly administration of justice, not to shackle the hand that dispenses it. Otherwise, the courts would be consigned to being mere slaves to technical rules, deprived of their judicial discretion. Technicalities must take a backseat to substantive rights. After all, it is circumspect leniency in this respect that will give the parties the fullest opportunity to ventilate the merits of their respective causes, rather than have them lose life, liberty, honor or 61 property on sheer technicalities. The other technical issue posed by respondent is the alleged pro forma nature of MCC's motion for reconsideration, ostensibly because it merely restated the arguments previously raised and passed upon by the CA. In this connection, suffice it to say that the mere restatement of arguments in a motion for reconsideration does 62 not per se result in a pro forma motion. In Security Bank and Trust Company, Inc. v. Cuenca, we held that a motion for reconsideration may not be necessarily pro forma even if it reiterates the arguments earlier passed upon and rejected by the appellate court. A movant may raise the same arguments precisely to convince the court that its ruling was erroneous. Furthermore, the pro forma rule will not apply if the arguments were not sufficiently passed upon and answered in the decision sought to be reconsidered. - II The second issue poses a novel question that the Court welcomes. It provides the occasion for this Court to pronounce a definitive interpretation of the equally innovative provisions of the Electronic Commerce Act of 2000 (R.A. No. 8792) vis--vis the Rules on Electronic Evidence. Although the parties did not raise the question whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act (the petitioner merely assails as inadmissible evidence the photocopies of the said facsimile transmissions), we deem it appropriate to determine first whether the said fax transmissions are indeed within the coverage of R.A. No. 8792 before ruling on whether the photocopies thereof are covered by the law. In any case, this Court has ample authority to go beyond the pleadings when, in the interest of justice or for the promotion of public policy, there is a need to make 63 its own findings in order to support its conclusions. Petitioner contends that the photocopies of the pro forma invoices presented by respondent Ssangyong to prove the perfection of their supposed contract of sale are inadmissible in evidence and do not fall within the ambit of R.A. No. 8792, because the law merely admits as the best evidence the original fax transmittal. On the other hand, respondent posits that, from a reading of the law and the Rules on Electronic Evidence, the original facsimile transmittal of the pro forma invoice is admissible in evidence since it is an electronic document and, therefore, the best evidence under the law and the Rules. Respondent further claims that the photocopies of these fax transmittals (specifically ST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on Evidence because the respondent sufficiently explained the non-production of the original fax transmittals. In resolving this issue, the appellate court ruled as follows: Admissibility of Pro Forma Invoices; Breach of Contract by Appellants Turning first to the appellants' argument against the admissibility of the Pro Forma Invoices with Reference Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F", pp. 215-218, Records), appellants argue that the said documents are inadmissible (sic) being violative of the best evidence rule. The argument is untenable. The copies of the said pro-forma invoices submitted by the appellee are admissible in evidence, although they are mere electronic facsimile printouts of appellant's orders. Such facsimile printouts are considered Electronic Documents under the New Rules on Electronic Evidence, which came into effect on August 1, 2001. (Rule 2, Section 1 [h], A.M. No. 01-7-01-SC). "(h) 'Electronic document' refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced

electronically. It includes digitally signed documents and any printout or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term 'electronic document' may be used interchangeably with 'electronic data message'. An electronic document shall be regarded as the equivalent of an original document under the Best Evidence Rule, as long as it is a printout or output readable by sight or other means, showing to reflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC) The ruling of the Appellate Court is incorrect. R.A. No. 8792, otherwise known as the Electronic Commerce Act of 2000, considers an electronic data message or an electronic document as the functional equivalent of a written 65 66 document for evidentiary purposes. The Rules on Electronic Evidence regards an electronic document as admissible in evidence if it complies with the rules on admissibility prescribed by the Rules of Court and related 67 laws, and is authenticated in the manner prescribed by the said Rules. An electronic document is also the equivalent of an original document under the Best Evidence Rule, if it is a printout or output readable by sight or 68 other means, shown to reflect the data accurately. Thus, to be admissible in evidence as an electronic data message or to be considered as the functional equivalent of an original document under the Best Evidence Rule, the writing must foremost be an "electronic data message" or an "electronic document." The Electronic Commerce Act of 2000 defines electronic data message and electronic document as follows: Sec. 5. Definition of Terms. For the purposes of this Act, the following terms are defined, as follows: xxx c. "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means. xxx f. "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. The Implementing Rules and Regulations (IRR) of R.A. No. 8792, which was signed on July 13, 2000 by the then Secretaries of the Department of Trade and Industry, the Department of Budget and Management, and then Governor of the Bangko Sentral ng Pilipinas, defines the terms as: Sec. 6. Definition of Terms. For the purposes of this Act and these Rules, the following terms are defined, as follows: xxx (e) "Electronic Data Message" refers to information generated, sent, received or stored by electronic, optical or similar means, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy. Throughout these Rules, the term "electronic data message" shall be equivalent to and be used interchangeably with "electronic document." xxxx (h) "Electronic Document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. Throughout these Rules, the term "electronic document" shall be equivalent to and be used interchangeably with "electronic data message."
69 64

The phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" in the IRR's definition of "electronic data message" is copied from the Model Law on Electronic Commerce adopted 70 by the United Nations Commission on International Trade Law (UNCITRAL), from which majority of the 71 provisions of R.A. No. 8792 were taken. While Congress deleted this phrase in the Electronic Commerce Act of 2000, the drafters of the IRR reinstated it. The deletion by Congress of the said phrase is significant and pivotal, as discussed hereunder. The clause on the interchangeability of the terms "electronic data message" and "electronic document" was the result of the Senate of the Philippines' adoption, in Senate Bill 1902, of the phrase "electronic data message" and 72 the House of Representative's employment, in House Bill 9971, of the term "electronic document." In order to expedite the reconciliation of the two versions, the technical working group of the Bicameral Conference 73 Committee adopted both terms and intended them to be the equivalent of each one. Be that as it may, there is a slight difference between the two terms. While "data message" has reference to information electronically sent, stored or transmitted, it does not necessarily mean that it will give rise to a right or extinguish an 74 obligation, unlike an electronic document. Evident from the law, however, is the legislative intent to give the two terms the same construction. The Rules on Electronic Evidence promulgated by this Court defines the said terms in the following manner: SECTION 1. Definition of Terms. For purposes of these Rules, the following terms are defined, as follows: xxxx (g) "Electronic data message" refers to information generated, sent, received or stored by electronic, optical or similar means. (h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other modes of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and print-out or output, readable by sight or other means, which accurately reflects the electronic data message or electronic document. For purposes of these Rules, the term "electronic document" may be used interchangeably with "electronic data message ." Given these definitions, we go back to the original question: Is an original printout of a facsimile transmission an electronic data message or electronic document? The definitions under the Electronic Commerce Act of 2000, its IRR and the Rules on Electronic Evidence, at first glance, convey the impression that facsimile transmissions are electronic data messages or electronic documents because they are sent by electronic means. The expanded definition of an "electronic data message" under the IRR, consistent with the UNCITRAL Model Law, further supports this theory considering that the enumeration "xxx [is] not limited to, electronic data interchange (EDI), electronic mail, telegram, telex 75 or telecopy." And to telecopy is to send a document from one place to another via a fax machine . As further guide for the Court in its task of statutory construction, Section 37 of the Electronic Commerce Act of 2000 provides that Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its international originand the need to promote uniformity in its application and the observance of good faith in international trade relations. The generally accepted principles of international law and convention on electronic commerce shall likewise be considered. Obviously, the "international origin" mentioned in this section can only refer to the UNCITRAL Model Law, and the UNCITRAL's definition of "data message": "Data message" means information generated, sent, received or stored by electronic, optical or similar meansincluding, but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or 76 telecopy. is substantially the same as the IRR's characterization of an "electronic data message."

However, Congress deleted the phrase, "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy," and replaced the term "data message" (as found in the UNCITRAL Model Law ) with "electronic data message." This legislative divergence from what is assumed as the term's "international origin" has bred uncertainty and now impels the Court to make an inquiry into the true intent of the framers of the law. Indeed, in the construction or interpretation of a legislative measure, the primary rule is to search for and 77 determine the intent and spirit of the law. A construction should be rejected that gives to the language used in a statute a meaning that does not accomplish the purpose for which the statute was enacted, and that tends to 78 defeat the ends which are sought to be attained by the enactment. Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal author of Senate Bill 1902 (the predecessor of R.A. No. 8792), sponsored the bill on second reading, he proposed to adopt the term "data message" as 79 formulated and defined in the UNCITRAL Model Law. During the period of amendments, however, the term evolved into "electronic data message," and the phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy" in the UNCITRAL Model Law was deleted. Furthermore, the term "electronic data message," though maintaining its description under the UNCITRAL Model Law, except for the aforesaid deleted phrase, conveyed a different meaning, as revealed in the following proceedings: xxxx Senator Santiago. Yes, Mr. President. I will furnish a copy together with the explanation of this proposed amendment. And then finally, before I leave the Floor, may I please be allowed to go back to Section 5; the Definition of Terms. In light of the acceptance by the good Senator of my proposed amendments, it will then become necessary to add certain terms in our list of terms to be defined. I would like to add a definition on what is "data," what is "electronic record" and what is an "electronic record system." If the gentleman will give me permission, I will proceed with the proposed amendment on Definition of Terms, Section 5. Senator Magsaysay. Please go ahead, Senator Santiago. Senator Santiago. We are in Part 1, short title on the Declaration of Policy, Section 5, Definition of Terms. At the appropriate places in the listing of these terms that have to be defined since these are arranged alphabetically, Mr. President, I would like to insert the term DATA and its definition. So, the amendment will read: "DATA" MEANS REPRESENTATION, IN ANY FORM, OF INFORMATION OR CONCEPTS. The explanation is this: This definition of "data" or "data" as it is now fashionably pronounced in America - - the definition of "data" ensures that our bill applies to any form of information in an electronic record, whether these are figures, facts or ideas. So again, the proposed amendment is this: "DATA" MEANS REPRESENTATIONS, IN ANY FORM, OF INFORMATION OR CONCEPTS. Senator Magsaysay. May I know how will this affect the definition of "Data Message" which encompasses electronic records, electronic writings and electronic documents? Senator Santiago. These are completely congruent with each other. These are compatible. When we define "data," we are simply reinforcing the definition of what is a data message. Senator Magsaysay. It is accepted, Mr. President. Senator Santiago. Thank you. The next term is "ELECTRONIC RECORD." The proposed amendment is as follows: "ELECTRONIC RECORD" MEANS DATA THAT IS RECORDED OR STORED ON ANY MEDIUM IN OR BY A COMPUTER SYSTEM OR OTHER SIMILAR DEVICE, THAT CAN BE READ OR PERCEIVED BY A PERSON OR A COMPUTER SYSTEM OR OTHER SIMILAR DEVICE. IT INCLUDES A DISPLAY, PRINTOUT OR OTHER OUTPUT OF THAT DATA.

The explanation for this term and its definition is as follows: The term "ELECTRONIC RECORD" fixes the scope of our bill. The record is the data. The record may be on any medium. It is electronic because it is recorded or stored in or by a computer system or a similar device. The amendment is intended to apply, for example, to data on magnetic strips on cards or in Smart cards. As drafted, it would not apply to telexes or faxes, except computer-generated faxes, unlike the United Nations model law on electronic commerce . It would also not apply to regular digital telephone conversations since the information is not recorded. It would apply to voice mail since the information has been recorded in or by a device similar to a computer. Likewise, video records are not covered. Though when the video is transferred to a website, it would be covered because of the involvement of the computer. Music recorded by a computer system on a compact disc would be covered. In short, not all data recorded or stored in digital form is covered. A computer or a similar device has to be involved in its creation or storage. The term "similar device" does not extend to all devices that create or store data in digital form. Although things that are not recorded or preserved by or in a computer system are omitted from this bill, these may well be admissible under other rules of law. This provision focuses on replacing the search for originality proving the reliability of systems instead of that of individual records and using standards to show systems reliability . Paper records that are produced directly by a computer system such as printouts are themselves electronic records being just the means of intelligible display of the contents of the record. Photocopies of the printout would be paper record subject to the usual rules about copies, but the original printout would be subject to the rules of admissibility of this bill. However, printouts that are used only as paper records and whose computer origin is never again called on are treated as paper records. In that case, the reliability of the computer system that produces the record is irrelevant to its reliability. Senator Magsaysay. Mr. President, if my memory does not fail me, earlier, the lady Senator accepted that we use the term "Data Message" rather than "ELECTRONIC RECORD" in being consistent with the UNCITRAL term of "Data Message." So with the new amendment of defining "ELECTRONIC RECORD," will this affect her accepting of the use of "Data Message" instead of "ELECTRONIC RECORD"? Senator Santiago. No, it will not. Thank you for reminding me. The term I would like to insert is ELECTRONIC DATA MESSAGE in lieu of "ELECTRONIC RECORD." Senator Magsaysay. Then we are, in effect, amending the term of the definition of "Data Message" on page 2A, line 31, to which we have no objection. Senator Santiago. Thank you, Mr. President. xxxx Senator Santiago. Mr. President, I have proposed all the amendments that I desire to, including the amendment on the effect of error or change. I will provide the language of the amendment together with the explanation supporting that amendment to the distinguished sponsor and then he can feel free to take it up in any session without any further intervention. Senator Magsaysay. Before we end, Mr. President, I understand from the proponent of these amendments that these are based on the Canadian E-commerce Law of 1998. Is that not right? Senator Santiago. That is correct.
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Thus, when the Senate consequently voted to adopt the term "electronic data message," it was consonant with the explanation of Senator Miriam Defensor-Santiago that it would not apply "to telexes or faxes, except computer-generated faxes, unlike the United Nations model law on electronic commerce ." In explaining the term "electronic record" patterned after the E-Commerce Law of Canada, Senator Defensor-Santiago had in mind the term "electronic data message." This term then, while maintaining part of the UNCITRAL Model Law's terminology of "data message," has assumed a different context, this time, consonant with the term "electronic record" in the law of Canada. It accounts for the addition of the word "electronic" and the deletion of the phrase

"but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy." Noteworthy is that the Uniform Law Conference of Canada, explains the term "electronic record," as drafted in the Uniform Electronic Evidence Act, in a manner strikingly similar to Sen. Santiago's explanation during the Senate deliberations: "Electronic record" fixes the scope of the Act. The record is the data. The record may be any medium. It is "electronic" because it is recorded or stored in or by a computer system or similar device. The Act is intended to apply, for example, to data on magnetic strips on cards, or in smart cards. As drafted, it would not apply to telexes or faxes (except computer-generated faxes), unlike the United Nations Model Law on Electronic Commerce. It would also not apply to regular digital telephone conversations, since the information is not recorded. It would apply to voice mail, since the information has been recorded in or by a device similar to a computer. Likewise video records are not covered, though when the video is transferred to a Web site it would be, because of the involvement of the computer. Music recorded by a computer system on a compact disk would be covered. In short, not all data recorded or stored in "digital" form is covered. A computer or similar device has to be involved in its creation or storage. The term "similar device" does not extend to all devices that create or store data in digital form. Although things that are not recorded or preserved by or in a computer system are omitted from this Act, they may well be admissible under other rules of law. This Act focuses on replacing the search for originality, proving the reliability of systems instead of that of individual records, and using standards to show systems reliability. Paper records that are produced directly by a computer system, such as printouts, are themselves electronic records, being just the means of intelligible display of the contents of the record. Photocopies of the printout would be paper records subject to the usual rules about copies, but the "original" printout would be subject to the rules of admissibility of this Act. However, printouts that are used only as paper records, and whose computer origin is never again called on, are treated as paper records. See subsection 4(2). In this case the reliability of the computer 81 system that produced the record is relevant to its reliability. There is no question then that when Congress formulated the term "electronic data message," it intended the same meaning as the term "electronic record" in the Canada law. This construction of the term "electronic data message," whichexcludes telexes or faxes, except computer-generated faxes, is in harmony with the Electronic 82 Commerce Law's focus on "paperless" communications and the "functional equivalent approach" that it espouses. In fact, the deliberations of the Legislature are replete with discussions on paperless and digital transactions. Facsimile transmissions are not, in this sense, "paperless," but verily are paper-based. A facsimile machine, which was first patented in 1843 by Alexander Bain, is a device that can send or receive pictures and text over a telephone line. It works by digitizing an image dividing it into a grid of dots. Each dot is either on or off, depending on whether it is black or white. Electronically, each dot is represented by a bit that has a value of either 0 (off) or 1 (on). In this way, the fax machine translates a picture into a series of zeros and ones (called a bit map) that can be transmitted like normal computer data. On the receiving side, a fax machine reads 84 the incoming data, translates the zeros and ones back into dots, and reprints the picture. A fax machine is essentially an image scanner, a modem and a computer printer combined into a highly specialized package. The scanner converts the content of a physical document into a digital image, the modem sends the image data over 85 a phone line, and the printer at the other end makes a duplicate of the original document. Thus, in Garvida v. 86 Sales, Jr., where we explained the unacceptability of filing pleadings through fax machines, we ruled that: A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It 87 may, in fact, be a sham pleading.
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Accordingly, in an ordinary facsimile transmission, there exists an original paper-based information or data that is scanned, sent through a phone line, and re-printed at the receiving end. Be it noted that in enacting the Electronic Commerce Act of 2000, Congress intended virtual or paperless writings to be the functional equivalent and to 88 have the same legal functionas paper-based documents. Further, in a virtual or paperless environment, technically, there is no original copy to speak of, as all direct printouts of the virtual reality are the same, in all 89 respects, and are considered as originals. Ineluctably, the law's definition of "electronic data message," which, as aforesaid, is interchangeable with "electronic document," could not have included facsimile transmissions, which have an original paper-based copy as sent and a paper-based facsimilecopy as received. These two copies are distinct from each other, and have different legal effects. While Congress anticipated future 90 developments in communications and computer technology when it drafted the law, it excluded the early forms of technology, like telegraph, telex and telecopy (except computer-generated faxes, which is a newer development as compared to the ordinary fax machine to fax machine transmission), when it defined the term "electronic data message." Clearly then, the IRR went beyond the parameters of the law when it adopted verbatim the UNCITRAL Model Law's definition of "data message," without considering the intention of Congress when the latter deleted the phrase "but not limited to, electronic data interchange (EDI), electronic mail, telegram, telex or telecopy ." The inclusion of this phrase in the IRR offends a basic tenet in the exercise of the rule-making power of administrative agencies. After all, the power of administrative officials to promulgate rules in the implementation of a statute is necessarily limited to what is found in the legislative enactment itself. The implementing rules and regulations of a law cannot extend the law or expand its coverage, as the power to amend or repeal a statute is vested in the 91 Legislature. Thus, if a discrepancy occurs between the basic law and an implementing rule or regulation, it is the former that prevails, because the law cannot be broadened by a mere administrative issuance an 92 administrative agency certainly cannot amend an act of Congress. Had the Legislature really wanted ordinary fax transmissions to be covered by the mantle of the Electronic Commerce Act of 2000, it could have easily lifted without a bit of tatter the entire wordings of the UNCITRAL Model Law. Incidentally, the National Statistical Coordination Board Task Force on the Measurement of E-Commerce, on November 22, 2006, recommended a working definition of "electronic commerce," as "[a]ny commercial transaction conducted through electronic, optical and similar medium, mode, instrumentality and technology. The transaction includes the sale or purchase of goods and services, between individuals, households, businesses and governments conducted over computer-mediated networks through the Internet, mobile phones, electronic data interchange (EDI) and other channels through open and closed networks." The Task Force's proposed definition is similar to the Organization of Economic Cooperation and Development's (OECD's) broad definition as it covers transactions made over any network, and, in addition, it adopted the following provisions of the OECD definition: (1) for transactions, it covers sale or purchase of goods and services; (2) for channel/network, it considers any computer-mediated network and NOT limited to Internet alone; (3) it excludes transactions received/placed using fax, telephone or non-interactive mail; (4) it considers payments done online or offline; and (5) it considers delivery made online (like downloading of purchased books, music or software programs) or 94 offline (deliveries of goods). We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission . Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence Rule and is not admissible as electronic evidence. Since a facsimile transmission is not an "electronic data message" or an "electronic document," and cannot be considered as electronic evidence by the Court, with greater reason is a photocopy of such a fax transmission not electronic evidence. In the present case, therefore, Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2POSTS0401-2 (Exhibits "E" and "F"), which are mere photocopies of the original fax transmittals, are not electronic evidence, contrary to the position of both the trial and the appellate courts. - III Nevertheless, despite the pro forma invoices not being electronic evidence, this Court finds that respondent has proven by preponderance of evidence the existence of a perfected contract of sale. In an action for damages due to a breach of a contract, it is essential that the claimant proves (1) the existence of a perfected contract, (2) the breach thereof by the other contracting party and (3) the damages which he/she sustained due to such breach. Actori incumbit onus probandi. The burden of proof rests on the party who 95 advances a proposition affirmatively. In other words, a plaintiff in a civil action must establish his case by a preponderance of evidence, that is, evidence that has greater weight, or is more convincing than that which is 96 offered in opposition to it.
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In general, contracts are perfected by mere consent, which is manifested by the meeting of the offer and the acceptance upon the thing and the cause which are to constitute the contract. The offer must be certain and the 98 acceptance absolute. They are, moreover, obligatory in whatever form they may have been entered into, 99 provided all the essential requisites for their validity are present. Sale, being a consensual contract, follows the general rule that it is perfected at the moment there is a meeting of the minds upon the thing which is the object of the contract and upon the price. From that moment, the parties may reciprocally demand performance, subject 100 to the provisions of the law governing the form of contracts. The essential elements of a contract of sale are (1) consent or meeting of the minds, that is, to transfer ownership in exchange for the price, (2) object certain which is the subject matter of the contract, and (3) cause of the 101 obligation which is established. In this case, to establish the existence of a perfected contract of sale between the parties, respondent Ssangyong formally offered in evidence the testimonies of its witnesses and the following exhibits: Exhibit E Description Pro forma Invoice dated 17 April 2000 with Contract No. ST2POSTS0401-1, photocopy Purpose To show that defendants contracted with plaintiff for the delivery of 110 MT of stainless steel from Korea payable by way of an irrevocable letter of credit in favor of plaintiff, among other conditions. To show that defendants sent their confirmation of the (i) delivery to it of the specified stainless steel products, (ii) defendants' payment thereof by way of an irrevocable letter of credit in favor of plaintiff, among other conditions.

97

E-1

E-2

Pro forma Invoice dated 17 April 2000 with Contract No. ST2POSTS0401, contained in facsimile/thermal paper faxed by defendants to plaintiff showing the printed transmission details on the upper portion of said paper as coming from defendant MCC on 26 Apr 00 08:41AM Conforme signature of Mr. Gregory Chan, contained in facsimile/thermal paper faxed by defendants to plaintiff showing the printed transmission details on the upper portion of said paper as coming from defendant MCC on 26 Apr 00 08:41AM Pro forma Invoice dated 17 April 2000 with Contract No. ST2POSTSO401-2, photocopy

To show that defendants sent their confirmation of the (i) delivery to it of the total of 220MT specified stainless steel products, (ii) defendants' payment thereof by way of an irrevocable letter of credit in favor of plaintiff, among other conditions. To show that defendants contracted with plaintiff for delivery of another 110 MT of stainless steel from Korea payable by way of an irrevocable letter of credit in favor of plaintiff, among other conditions. To prove that defendants were informed of the date of L/C opening and defendant'sconforme/approval thereof.

Letter to defendant SANYO SEIKE dated 20 June 2000,contained in facsimile/thermal paper

G-1

I J K L M

Signature of defendant Gregory Chan, contained in facsimile/thermal paper. Letter to defendants dated 22 June To prove that defendants were informed of the 2000, original successful price adjustments secured by plaintiff in favor of former and were advised of the schedules of its L/C opening. Letter to defendants dated 26 June To prove that plaintiff repeatedly requested 2000, original defendants for the agreed opening of the Letter to defendants dated 26 June Letters of Credit, defendants' failure and refusal to comply with their obligations and the 2000, original problems of plaintiff is incurring by reason of Letter to defendants dated 27 June defendants' failure and refusal to open the 2000, original L/Cs. Facsimile message to defendants dated 28 June 2000, photocopy Letter from defendants dated 29 To prove that defendants admit of their June 2000, contained in liabilities to plaintiff, that they requested for

M-1

facsimile/thermal paper faxed by "more extension" of time for the opening of the defendants to plaintiff showing the Letter of Credit, and begging for favorable printed transmission details on the understanding and consideration. upper portion of said paper as coming from defendant MCC on 29 June 00 11:12 AM Signature of defendant Gregory Chan, contained in facsimile/thermal paper faxed by defendants to plaintiff showing the printed transmission details on the upper portion of said paper as coming from defendant MCC on June 00 11:12 AM Letter to defendants dated 29 June 2000, original Letter to defendants dated 30 June 2000, photocopy

N O

To prove that plaintiff reiterated its request for defendants to L/C opening after the latter's request for extension of time was granted, defendants' failure and refusal to comply therewith extension of time notwithstanding.

P Q

Letter to defendants dated 06 July 2000, original Demand letter to defendants dated 15 Aug 2000, original

W-1

W-2

X-1 X-2 X-3

To prove that plaintiff was constrained to engaged services of a lawyer for collection efforts. Demand letter to defendants dated To prove that defendants opened the first L/C 23 Aug 2000, original in favor of plaintiff, requested for further postponement of the final L/C and for minimal amounts, were urged to open the final L/C on time, and were informed that failure to comply will cancel the contract. Demand letter to defendants dated To show defendants' refusal and failure to 11 Sept 2000, original open the final L/C on time, the cancellation of the contract as a consequence thereof, and final demand upon defendants to remit its obligations. Letter from plaintiff SSANGYONG to To prove that there was a perfected sale and defendant SANYO SEIKI dated 13 purchase agreement between the parties for April 2000, with fax back from 220 metric tons of steel products at the price of defendants SANYO SEIKI/MCC to US$1,860/ton. plaintiff SSANGYONG, contained in facsimile/thermal paper with back-up photocopy Conforme signature of defendant To prove that defendants, acting through Gregory Chan, contained in Gregory Chan, agreed to the sale and facsimile/thermal paper with back-up purchase of 220 metric tons of steel products photocopy at the price of US$1,860/ton. Name of sender MCC Industrial To prove that defendants sent their conformity Sales Corporation to the sale and purchase agreement by facsimile transmission. Pro forma Invoice dated 16 August To prove that defendant MCC agreed to adjust 2000, photocopy and split the confirmed purchase order into 2 shipments at 100 metric tons each at the discounted price of US$1,700/ton. Notation "1/2", photocopy To prove that the present Pro forma Invoice was the first of 2 pro forma invoices. To prove that the present Pro formaInvoice Ref. No. ST2-POSTS0801,photocopy was the first of 2 pro formainvoices. Conforme signature of defendant To prove that defendant MCC, acting through Gregory Chan, photocopy Gregory Chan, agreed to the sale and purchase of the balance of 100 metric tons at the discounted price of US$1,700/ton, apart from the other order and shipment of 100

DD

Letter from defendant MCC to plaintiff SSANGYONG dated 22 August 2000, contained in facsimile/thermal paper with back-up photocopy

DD-1

Ref. No. ST2-POSTS080-1,contained in facsimile/thermal paper with backup photocopy

DD-2

Signature of defendant Gregory Chan, contained in facsimile/thermal paper with back-up photocopy

metric tons which was delivered by plaintiff SSANGYONG and paid for by defendant MCC. To prove that there was a perfected sale and purchase agreement between plaintiff SSANGYONG and defendant MCC for the balance of 100 metric tons, apart from the other order and shipment of 100 metric tons which was delivered by plaintiff SSANGYONG and paid for by defendant MCC. To prove that there was a perfected sale and purchase agreement between plaintiff SSANGYONG and defendant MCC for the balance of 100 metric tons, apart from the other order and shipment of 100 metric tons which was delivered by plaintiff SSANGYONG and paid for by defendant MCC. To prove that defendant MCC, acting through Gregory Chan, agreed to the sale and purchase of the balance of 100 metric tons, apart from the other order and shipment of 100 metric tons which was delivered by plaintiff 102 Ssangyong and paid for by defendant MCC.

Significantly, among these documentary evidence presented by respondent, MCC, in its petition before this Court, assails the admissibility only of Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS04012 (Exhibits "E" and "F"). After sifting through the records, the Court found that these invoices are mere photocopies of their original fax transmittals. Ssangyong avers that these documents were prepared after MCC asked for the splitting of the original order into two, so that the latter can apply for an L/C with greater facility. It, however, failed to explain why the originals of these documents were not presented. To determine whether these documents are admissible in evidence, we apply the ordinary Rules on Evidence, for as discussed above we cannot apply the Electronic Commerce Act of 2000 and the Rules on Electronic Evidence. Because these documents are mere photocopies, they are simply secondary evidence, admissible only upon compliance with Rule 130, Section 5, which states, "[w]hen the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in the order stated." Furthermore, the offeror of secondary evidence must prove the predicates thereof, namely: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in the proper place or places. It has been held that where the missing document is the foundation of the action, more strictness in proof is required 103 than where the document is only collaterally involved. Given these norms, we find that respondent failed to prove the existence of the original fax transmissions of Exhibits E and F, and likewise did not sufficiently prove the loss or destruction of the originals. Thus, Exhibits E and F cannot be admitted in evidence and accorded probative weight. It is observed, however, that respondent Ssangyong did not rely merely on Exhibits E and F to prove the perfected contract. It also introduced in evidence a variety of other documents, as enumerated above, together with the testimonies of its witnesses. Notable among them are Pro Forma Invoice Nos. ST2-POSTS0801 and ST2-POSTS080-2 which were issued by Ssangyong and sent via fax to MCC. As already mentioned, these invoices slightly varied the terms of the earlier invoices such that the quantity was now officially 100MT per invoice and the price reduced to US$1,700.00 per MT. The copies of the said August 16, 2000 invoices submitted to the court bear the conformity signature of MCC Manager Chan. Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit "X"), however, is a mere photocopy of its original. But then again, petitioner MCC does not assail the admissibility of this document in the instant petition. Verily, evidence not objected to is deemed admitted and may be validly considered by the court in arriving at its 104 judgment. Issues not raised on appeal are deemed abandoned.

As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits "1-A" and "2-C"), which was certified by PCIBank as a 105 true copy of its original, it was, in fact, petitioner MCC which introduced this document in evidence. Petitioner MCC paid for the order stated in this invoice. Its admissibility, therefore, is not open to question. These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-POSTS080-2), along with the other unchallenged documentary evidence of respondent Ssangyong, preponderate in favor of the claim that a contract of sale was perfected by the parties. This Court also finds merit in the following observations of the trial court: Defendants presented Letter of Credit (Exhibits "1", "1-A" to "1-R") referring to Pro Forma Invoice for Contract No. ST2POSTS080-2, in the amount of US$170,000.00, and which bears the signature of Gregory Chan, General Manager of MCC. Plaintiff, on the other hand, presented Pro Forma Invoice referring to Contract No. ST2-POSTS080-1, in the amount of US$170,000.00, which likewise bears the signature of Gregory Chan, MCC. Plaintiff accounted for the notation "1/2" on the right upper portion of the Invoice, that is, that it was the first of two (2) pro forma invoices covering the subject contract between plaintiff and the defendants. Defendants, on the other hand, failed to account for the notation "2/2" in its Pro Forma Invoice (Exhibit "1-A"). Observably further, both Pro Forma Invoices bear the 106 same date and details, which logically mean that they both apply to one and the same transaction. Indeed, why would petitioner open an L/C for the second half of the transaction if there was no first half to speak of? The logical chain of events, as gleaned from the evidence of both parties, started with the petitioner and the respondent agreeing on the sale and purchase of 220MT of stainless steel at US$1,860.00 per MT. This initial contract was perfected. Later, as petitioner asked for several extensions to pay, adjustments in the delivery dates, and discounts in the price as originally agreed, the parties slightly varied the terms of their contract, without necessarily novating it, to the effect that the original order was reduced to 200MT, split into two deliveries, and the price discounted to US$1,700 per MT. Petitioner, however, paid only half of its obligation and failed to open an L/C for the other 100MT. Notably, the conduct of both parties sufficiently established the existence of a contract of sale, even if the writings of the parties, because of their contested admissibility, were not as explicit in 107 establishing a contract. Appropriate conduct by the parties may be sufficient to establish an agreement, and while there may be instances where the exchange of correspondence does not disclose the exact point at which 108 the deal was closed, the actions of the parties may indicate that a binding obligation has been undertaken. With our finding that there is a valid contract, it is crystal-clear that when petitioner did not open the L/C for the first half of the transaction (100MT), despite numerous demands from respondent Ssangyong, petitioner breached its contractual obligation. It is a well-entrenched rule that the failure of a buyer to furnish an agreed letter of credit is a breach of the contract between buyer and seller. Indeed, where the buyer fails to open a letter of credit as stipulated, the seller or exporter is entitled to claim damages for such breach. Damages for failure to open a commercial credit may, in appropriate cases, include the loss of profit which the seller would reasonably 109 have made had the transaction been carried out. - IV This Court, however, finds that the award of actual damages is not in accord with the evidence on record. It is axiomatic that actual or compensatory damages cannot be presumed, but must be proven with a reasonable 110 111 degree of certainty. In Villafuerte v. Court of Appeals, we explained that: Actual or compensatory damages are those awarded in order to compensate a party for an injury or loss he suffered. They arise out of a sense of natural justice and are aimed at repairing the wrong done. Except as provided by law or by stipulation, a party is entitled to an adequate compensation only for such pecuniary loss as he has duly proven. It is hornbook doctrine that to be able to recover actual damages, the claimant bears the onus of presenting before the court actual proof of the damages alleged to have been suffered, thus: A party is entitled to an adequate compensation for such pecuniary loss actually suffered by him as he has duly proved. Such damages, to be recoverable, must not only be capable of proof, but must actually be proved with a reasonable degree of certainty. We have emphasized that these damages cannot be presumed and courts, in making an award must point out specific facts which could afford a basis for measuring whatever compensatory or actual 112 damages are borne.

In the instant case, the trial court awarded to respondent Ssangyong US$93,493.87 as actual damages. On appeal, the same was affirmed by the appellate court. Noticeably, however, the trial and the appellate courts, in making the said award, relied on the following documents submitted in evidence by the respondent: (1) Exhibit "U," the Statement of Account dated March 30, 2001; (2) Exhibit "U-1," the details of the said Statement of Account); (3) Exhibit "V," the contract of the alleged resale of the goods to a Korean corporation; and (4) Exhibit "V-1," the authentication of the resale contract from the Korean Embassy and certification from the Philippine Consular Office. The statement of account and the details of the losses sustained by respondent due to the said breach are, at best, self-serving. It was respondent Ssangyong itself which prepared the said documents. The items therein are not even substantiated by official receipts. In the absence of corroborative evidence, the said statement of account is not sufficient basis to award actual damages. The court cannot simply rely on speculation, conjecture or guesswork as to the fact and amount of damages, but must depend on competent proof that the claimant had 113 suffered, and on evidence of, the actual amount thereof. Furthermore, the sales contract and its authentication certificates, Exhibits "V" and "V-1," allegedly evidencing the resale at a loss of the stainless steel subject of the parties' breached contract, fail to convince this Court of the 114 veracity of its contents. The steel items indicated in the sales contract with a Korean corporation are different in all respects from the items ordered by petitioner MCC, even in size and quantity. We observed the following discrepancies: List of commodities as stated in Exhibit "V": COMMODITY: Stainless Steel HR Sheet in Coil, Slit Edge SPEC: SUS304 NO. 1 SIZE/Q'TY: 2.8MM X 1,219MM X C 3.0MM X 1,219MM X C 3.0MM X 1,219MM X C 3.0MM X 1,219MM X C 4.0MM X 1,219MM X C 4.0MM X 1,219MM X C 4.5MM X 1,219MM X C 4.5MM X 1,219MM X C 5.0MM X 1,219MM X C 6.0MM X 1,219MM X C 6.0MM X 1,219MM X C 6.0MM X 1,219MM X C TOTAL: 8.193MT 7.736MT 7.885MT 8.629MT 7.307MT 7.247MT 8.450MT 8.870MT 8.391MT 6.589MT 7.878MT 8.397MT 115 95.562MT

List of commodities as stated in Exhibit "X" (the invoice that was not paid): DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304 SIZE AND QUANTITY: 2.6 MM X 4' X C 10.0MT 3.0 MM X 4' X C 25.0MT 4.0 MM X 4' X C 15.0MT 4.5 MM X 4' X C 15.0MT 5.0 MM X 4' X C 10.0MT 6.0 MM X 4' X C 25.0MT 116 TOTAL: 100MT From the foregoing, we find merit in the contention of MCC that Ssangyong did not adequately prove that the items resold at a loss were the same items ordered by the petitioner. Therefore, as the claim for actual damages was not proven, the Court cannot sanction the award.

Nonetheless, the Court finds that petitioner knowingly breached its contractual obligation and obstinately refused to pay despite repeated demands from respondent. Petitioner even asked for several extensions of time for it to make good its obligation. But in spite of respondent's continuous accommodation, petitioner completely reneged on its contractual duty. For such inattention and insensitivity, MCC must be held liable for nominal damages. "Nominal damages are 'recoverable where a legal right is technically violated and must be vindicated against an invasion that has produced no actual present loss of any kind or where there has been a breach of contract and 117 no substantial injury or actual damages whatsoever have been or can be shown.'" Accordingly, the Court awards nominal damages of P200,000.00 to respondent Ssangyong. As to the award of attorney's fees, it is well settled that no premium should be placed on the right to litigate and not every winning party is entitled to an automatic grant of attorney's fees. The party must show that he falls 118 under one of the instances enumerated in Article 2208 of the Civil Code. In the instant case, however, the Court finds the award of attorney's fees proper, considering that petitioner MCC's unjustified refusal to pay has compelled respondent Ssangyong to litigate and to incur expenses to protect its rights. WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLY GRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 82983 is MODIFIED in that the award of actual damages is DELETED. However, petitioner isORDERED to pay respondent NOMINAL DAMAGES in the amount of P200,000.00, and the ATTORNEY'S FEES as awarded by the trial court. SO ORDERED.

ELLERY MARCH G. TORRES, Petitioner,

G.R. No. 193531 Present: CORONA, C.J., CARPIO, * VELASCO, JR., LEONARDO-DE CASTRO, BRION, PERALTA, BERSAMIN, DEL CASTILLO, ABAD, VILLARAMA, JR., PEREZ, MENDOZA, SERENO, REYES, and PERLAS-BERNABE, JJ.

-versus-

PHILIPPINE AMUSEMENT andGAMING CORPORATION,represented by ATTY. CARLOS R. BAUTISTA, JR., Respondent.

Promulgated:

December 14, 2011 x-----------------------------------------------------------------------------------------x

DECISION PERALTA, J.:

Petitioner Ellery March G. Torres seeks to annul and set aside the Decision

[1]

dated April 22, 2010 of the

Court of Appeals (CA) in CA-G.R. SP No. 110302, which dismissed his petition seeking reversal of the Resolutions dated June 23, 2008 the CA Resolution
[4] [2]

and July 28, 2009

[3]

of the Civil Service Commission (CSC). Also assailed is

dated July 30, 2010 denying petitioner's motion for reconsideration.

Petitioner was a Slot Machine Operations Supervisor (SMOS) of respondent Philippine Amusement and Gaming Corporation (PAGCOR). On the basis of an alleged intelligence report of padding of the Credit Meter Readings (CMR) of the slot machines at PAGCOR-Hyatt Manila, then Casino Filipino-Hyatt (CF Hyatt), which involved the slot machine and internal security personnel of respondent PAGCOR, and in connivance with slot machine customers, respondent PAGCOR's Corporate Investigation Unit (CIU) allegedly conducted an investigation to verify the veracity of such report. The CIU discovered the scheme of CMR padding which was

committed by adding zero after the first digit of the actual CMR of a slot machine or adding a digit before the first digit of the actual CMR, e.g., a slot machine with an actual CMR of P5,000.00 will be issued a CMR receipt with the amount of either P50,000.00 or P35,000.00.
[5]

Based on the CIU's investigation of all the CMR receipts and

slot machine jackpot slips issued by CF Hyatt for the months of February and March 2007, the CIU identified the members of the syndicate who were responsible for such CMR padding, which included herein petitioner.
[6]

On May 4, 2007, the CIU served petitioner with a Memorandum of Charges

[7]

for dishonesty, serious

misconduct, fraud and violation of office rules and regulations which were considered grave offenses where the penalty imposable is dismissal. The summary description of the charges stated: Sometime between November 2006 and March 2007, you facilitated and actively participated in the fraudulent scheme with respect to irregular manipulation of Credit Meter Reading (CMR) which, in turn, led to the misappropriation of money earmarked for the slot machine jackpot at CF Hyatt Manila. These anomalous transactions were consummated through your direct participation and active cooperation of your co-employees and customers. With malice afterthought, you embezzled and stole monies from PAGCOR, thereby resulting in [8] substantial losses to the proprietary interest of PAGCOR.

On the same day, another Memorandum of Charges

[9]

signed by Rogelio Y. Bangsil, Jr., Senior Branch

Manager, CF Hyatt Manila, was issued to petitioner informing him of the charge of dishonesty (padding of anomalous SM jackpot receipts). Petitioner was then required to explain in writing within seventy-two (72) hours from receipt thereof why he should not be sanctioned or dismissed. Petitioner was placed under preventive suspension effective immediately until further orders.

On May 7, 2007, petitioner wrote Manager Bangsil a letter explanation/refutation

[10]

of the charges against

him. He denied any involvement or participation in any fraudulent manipulation of the CMR or padding of the slot machine receipts, and he asked for a formal investigation of the accusations against him.

On August 4, 2007, petitioner received a letter

[11]

dated August 2, 2007 from Atty. Lizette F. Mortel,

Managing Head of PAGCOR's Human Resource and Development Department, dismissing him from the service. The letter reads in part, to wit: Please be informed that the Board of Directors, in its meeting on July 31, 2007, approved the recommendation of the Adjudication Committee to dismiss you from the service effective upon approval due to the following offense:

Dishonesty, gross misconduct, serious violations of office rules and regulations, conduct prejudicial to the best interests of the company and loss of trust and confidence,

committed as follows: For actively and directly participating in a scheme to defraud the company in conspiracy with co-employees and SM customers by padding slot machine Credit Meter Reading (CMR) receipts in favor of co-conspirator customers who had said (sic) CMR receipts paid at the teller's booth on numerous occasions which caused substantial losses to [12] the proprietary interests of PAGCOR.

On September 14, 2007, petitioner filed with the CSC a Complaint

[13]

against PAGCOR and its

Chairman Efraim Genuino for illegal dismissal, non-payment of backwages and other benefits. The complaint alleged among others: (1) that he denied all the charges against him; (2) that he did ask for a formal investigation of the accusations against him and for PAGCOR to produce evidence and proofs to substantiate the charges, but respondent PAGCOR did not call for any formal administrative hearing; (3) that he tried to persuade respondent PAGCOR to review and reverse its decision in a letter of reconsideration dated August 13, 2007 addressed to the Chairman, the members of the Board of Directors and the Merit Systems Protection Board; and (4) that no resolution was issued on his letter reconsideration, thus, the filing of the complaint. Petitioner claimed that as a result of his unlawful, unjustified and illegal termination/dismissal, he was compelled to hire the services of a counsel in order to protect his rights.

Respondent PAGCOR filed its Comment wherein it alleged, among others, that petitioner failed to perfect an appeal within the period and manner provided by the Uniform Rules on Administrative Cases in the Civil Service Law.

On June 23, 2008, the CSC, treating petitioner's complaint as an appeal from the PAGCOR's decision dismissing petitioner from the service, issued Resolution No. 081204 denying petitioner's appeal. The dispositive portion of which reads as follows: WHEREFORE, the instant appeal of Ellery March G. Torres is hereby DENIED. Accordingly, the decision contained in a letter dated August 2, 2007 of Lizette F. Mortel, Managing Head, Human Resource and Development Department (HRDD), PAGCOR, finding him guilty of Dishonesty, Gross Misconduct, Serious Violation of Office Rules and Regulations, Conduct Prejudicial to the Best Interest of the Service and Loss of Trust and Confidence and imposing upon him the penalty of dismissal from the service, is hereby AFFIRMED. The penalty of dismissal carries with it the accessory penalties of forfeiture of retirement benefits, cancellation of eligibility, perpetual disqualification from reemployment in the government [14] service, and bar from taking future Civil Service Examination.

In so ruling, the CSC found that the issue for resolution was whether petitioner's appeal had already prescribed which the former answered in the positive. The CSC did not give credit to petitioner's claim that he sent a facsimile transmission of his letter reconsideration within the period prescribed by the Uniform Rules on Administrative Cases in the Civil Service. It found PAGCOR's denial of having received petitioner's letter more credible as it was supported by certifications issued by its employees. It found that a verification of one of the telephone numbers where petitioner allegedly sent his letter reconsideration disclosed that such number did not belong to the PAGCOR's Office of the Board of Directors; and that petitioner should have mentioned about the alleged facsimile transmission at the first instance when he filed his complaint and not only when respondent PAGCOR raised the issue of prescription in its Comment.

Petitioner's motion for a reconsideration was denied in CSC Resolution No. 09-1105 dated July 28, 2009.

Petitioner filed with the CA a petition for review under Rule 43 of the Rules of Court seeking to set aside the twin resolutions issued by the CSC.

On April 22, 2010, the CA issued its assailed decision dismissing the petition for lack of merit.

In dismissing the petition, the CA found that petitioner failed to adduce clear and convincing evidence that he had filed a motion for reconsideration. It found insufficient to merit consideration petitioner's claim that he had sent through a facsimile transmission a letter/reconsideration dated August 13, 2007 addressed to PAGCOR's Chairman, members of the Board of Directors and the Merit Systems Protection Board; that assuming arguendo that a letter reconsideration was indeed sent through a facsimile transmission, such facsimile transmission is inadmissible as electronic evidence under the Electronic Commerce Act of 2000; and that a review of the CSC assailed resolution revealed that the telephone numbers where petitioner claimed to be the recipient of the faxed document sent was not that of PAGCOR's Office of Board of Directors. The CA found baseless and conjectural petitioner's claim that PAGCOR can easily deny having received the letter by giving orders to their employees to execute an affidavit of denial under pain and threat of administrative sanction or termination from service. The CA then concluded that PAGCOR's decision which was contained in a letter dated August 4, 2007 dismissing petitioner from the service had already attained finality since there was no motion for reconsideration filed by petitioner in the manner and within the period provided for under the Revised Uniform Rules on the Administrative Cases in the Civil Service. Petitioner's motion for reconsideration was denied in a Resolution dated July 30, 2010.

Hence, this petition where petitioner states the errors committed by the CA in this wise: The first issue that should be resolved is: 1. Whether or not the Court of Appeals erred when it affirmed the dismissal of petitioner based merely on technicality without considering the allegations on summary and arbitrary dismissal based on fabricated and unfounded accusations. Next to be raised were the issues propounded in petitioner's Memorandum dated 29 January 2010 but were not tackled upon by the Court of Appeals, thus: A. Whether or not the Civil Service Commission erred in ruling that there was no valid letter/motion for reconsideration submitted to reconsider petitioner's dismissal from the service; B. Whether or not the Civil Service Commission erred in giving more weight to PAGCOR's denial of having received petitioner's letter of reconsideration; C. Whether or not the Civil Service Commission erred in not acting/resolving the Ex-Parte Motion to Issue Subpoena Duces Tecum;

D. Whether or not the Civil Service Commission erred in ruling that petitioner's failure to send his letter reconsideration through mail or by personal service as set forth in the Rules of Court, he forfeited his right to appeal; and E. Whether or not the Civil Service Commission erred in favoring PAGCORs dismissal of petitioner from employment based on hearsay, imaginary and non-existent [15] evidence.

The threshold issue for resolution is whether the CA erred when it affirmed the CSC's dismissal of the appeal for being filed beyond the reglementary period.

Petitioner contends that he filed his letter reconsideration of his dismissal

[16]

on August 13, 2007, which

was within the 15-day period for filing the same; and that he did so by means of a facsimile transmission sent to the PAGCOR's Office of the Board of Directors. He claims that the sending of documents thru electronic data message, which includes facsimile, is sanctioned under Republic Act No. 8792, the Electronic Commerce Act of 2000. Petitioner further contends that since his letter reconsideration was not acted upon by PAGCOR, he then filed his complaint before the CSC.

We are not persuaded.

Sections 37, 38, 39, and 43 of the Revised Uniform Rules on Administrative Cases in the Civil Service, which are applicable to this case, respectively provide, to wit: Section 37. Finality of Decisions - A decision rendered by heads of agencies whereby a penalty of suspension for not more than thirty days or a fine in an amount not exceeding thirty (30) days' salary is imposed, shall be final and executory. However, if the penalty imposed is suspension exceeding thirty days, or fine in an amount exceeding thirty days salary, the same shall be final and executory after the lapse of the r eglementary period for filing a motion for reconsideration or an appeal and no such pleading has been filed. Section 38. Filing of motion for reconsideration. - The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the same within fifteen days from receipt thereof. Section 39. When deemed filed. - A motion for reconsideration sent by mail shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office. Section 43. Filing of Appeals. - Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days salary, maybe appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof.

Clearly, a motion for reconsideration may either be filed by mail or personal delivery. When a motion for reconsideration was sent by mail, the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case. On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office. And the movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal therefrom.

Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been submitted either by mail or by personal delivery on or before August 19, 2007. However, records do not show that petitioner had filed his motion for reconsideration. In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by certifications issued by PAGCOR employees.

Even assuming arguendo that petitioner indeed submitted a letter reconsideration which he claims was sent through a facsimile transmission, such letter reconsideration did not toll the period to appeal. The mode used by petitioner in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As we stated earlier, the motion for reconsideration may be filed only in two ways, either by mail or personal delivery.

In Garvida v. Sales, Jr., and ruled that:

[17]

we found inadmissible in evidence the filing of pleadings through fax machines

A facsimile or fax transmission is a process involving the transmission and reproduction of printed and graphic matter by scanning an original copy, one elemental area at a time, and representing the shade or tone of each area by a specified amount of electric current. The current is transmitted as a signal over regular telephone lines or via microwave relay and is used by the receiver to reproduce an image of the elemental area in the proper position and the correct shade. The receiver is equipped with a stylus or other device that produces a printed record on paper referred to as a facsimile. x x x A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether thefacsimile pleading is genuine and authentic and was originally signed by [18] the party and his counsel. It may, in fact, be a sham pleading. x x x

Moreover, a facsimile transmission is not considered as an electronic evidence under the Electronic Commerce Act. In MCC Industrial Sales Corporation v. Ssangyong Corporation,
[19]

We determined the question

of whether the original facsimile transmissions are "electronic data messages" or "electronic documents" within the context of the Electronic Commerce Act, and We said: We, therefore, conclude that the terms "electronic data message" and "electronic document," as defined under the Electronic Commerce Act of 2000, do not include a facsimile transmission. Accordingly, a facsimile transmission cannot be considered as electronic evidence. It is not the functional equivalent of an original under the Best Evidence [20] Rule and is not admissible aselectronic evidence. (Italics ours.)

We, therefore, found no reversible error committed by the CA when it affirmed the CSC in dismissing petitioner's appeal. Petitioner filed with the CSC a complaint against PAGCOR and its Chairman for illegal dismissal, non-payment of backwages and other benefits on September 14, 2007. The CSC treated the complaint as an appeal from the PAGCOR's dismissal of petitioner. Under Section 43 which we earlier quoted, petitioner had 15 days from receipt of the letter of dismissal to file his appeal. However, at the time petitioner

filed his complaint with the CSC, which was considered as petitioner's appeal, 41 days had already elapsed from the time he received his letter of dismissal on August 4, 2007; hence, the CSC correctly found that it has no jurisdiction to entertain the appeal since petitioner's dismissal had already attained finality. Petitioner's dismissal from the service became final and executory after he failed to file his motion for reconsideration or appeal in the manner and within the period provided for under the Revised Uniform Rules on Administrative Cases in the Civil Service.

In Pea v. Government Service and Insurance System,

[21]

We said:

Noteworthy is that the right to appeal is neither a natural right nor a part of due process, except where it is granted by statute in which case it should be exercised in the manner and in accordance with the provisions of law. In other words, appeal is a right of statutory and not of constitutional origin. The perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but also jurisdictional and the failure of a party to conform to the rules regarding appeal will render the judgment final and executory and, hence, unappealable, for it is more important that a case be settled than it be settled right. Furthermore, it is axiomatic that final and executory judgments can no longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, so also the [22] winning party has the correlative right to enjoy the finality of the resolution of the case.

WHEREFORE, the petition is DENIED. The Decision dated April 22, 2010 and the Resolution dated July 30, 2010 of the Court of Appeals are hereby AFFIRMED.

SO ORDERED.

G.R. No. 170491

April 4, 2007

NATIONAL POWER CORPORATION, Petitioner, vs. HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents. DECISION CHICO-NAZARIO, J.: Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing the 1 Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which dismissed the 2 Petition for Certiorari filed by the National Power Corporation seeking to set aside the Order issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying admission and excluding from the records plaintiffs (herein petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its submarkings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings. On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioners Power Barge 209 which was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages caused on petitioners power barges.

Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order issued on 24 January 2003. Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their respective objections to petitioners formal offer of evidence. On 16 November 2004, public respondent judge issued the assailed order denying the admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub -markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its submarkings, "R" and "S" and its sub-markings. According to the court a quo: The Court finds merit in the objections raised and the motion to strike out filed respectively by the defendants. The record shows that the plaintiff has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff attempted to justify the admission of the photocopies by contending that "the photocopies offered are equivalent to the original of the document" on the basis of the Electronic Evidence (Comment to Defendant Wallem Philippines Objections and Motion to Strike). But as rightly pointed out in defendant Wallems Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows: "(h) "Electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data message or electronic document. For the purpose of these Rules, the term "electronic document" may be used interchangeably with "electronic data message". The information in those Xerox or photocopies was not received, recorded, retrieved or produced electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5, Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not executed, much less presented in evidence. The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not properly identified by any competent witness, the loss of the principals thereof was not established by any competent proof. xxxx WHEREFORE, plaintiffs Exhibits "A", "C", "D", "E", "H" and its sub -markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R" are hereby DENIED admission and excluded from the records. However, these excluded evidence should be attached to the records of this case to enable the appellate court to pass upon them should an appeal be taken from the decision on the merits to be rendered upon the termination of the trial of this case. Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the witness who brought these pictures expressly admitted that he was not present when the photos were taken and had not 3 knowledge when the same where taken. Upon denial of petitioners Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a Petition forCertiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings.

On 9 November 2005, the appellate court issued a Decision dismissing petitioners petition for certiorari, the pertinent portions of which elucidate: After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence which are applicable in the premises, we have come up with a finding that the petition for certiorari filed in this case is not meritorious. It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of judgment as would be equivalent to lack of jurisdiction x x x. In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order, dated November 16, 2004, in Civil Case No. CEB-18662. Indeed, it appears that the pieces of petitioners documentary evidence which were denied admission by the respondent judge were not properly identified by any competent witness. As pointed out by the respondent Bangpai Shipping Company in its comment on the petition filed in this case which reproduces some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and participation in the preparation and making of the pieces of documentary evidence denied admission by respondent judge x x x. In other words, there was lack of proper identification of said pieces of documentary evidence. x x x. Then another ground for denying admission of petitioners Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies of purported documents or papers. There is no gainsaying the fact that the respondent judge acted within the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130 of the Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the contents of documents, no evidence shall be admissible other than the original documents themselves, except in certain cases specifically so enumerated therein, and the petitioner has not shown that the non-presentation or non-production of its original documentary pieces of evidence falls under such exceptions. As aptly pointed out by the respondent judge in the order issued by him on November 16, 2004: "x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present the originals of the Xerox or photocopies of the documents it offered. It never produced said originals." So, the petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence. Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to the original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence which were in force and effect since August 1, 2001. However, such a contention is devoid of merit. The pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662 which were denied admission by the respondent judge do not actually constitute as electronic evidence as defined in the Rules on Electronic Evidence. The informations therein were not received, retrieved or produced electronically. The petitioner has not adequately established that its documentary evidence were electronic evidence. it has not properly authenticated such evidence as electronic documents, assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said documentary evidence. Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of discretion in denying admission of the aforementioned documentary evidence of petitioner. But even if it be granted just for the sake of argument that the respondent judge committed an error in denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In Lee vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case of an error of law. x x x. WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the petition 4 filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case No. CEB-18662. Aggrieved by the aforequoted decision, petitioner filed the instant petition.

The focal point of this entire controversy is petitioners obstinate contention that the photocopies it offered as formal evidence before the trial court are the functional equivalent of their original based on its inimitable interpretation of the Rules on Electronic Evidence. Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the photocopies it presented as documentary evidence actually constitute electronic evidence based on its own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on Electronic Evidence is not limited to information that is received, recorded, retrieved or produced electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of written expression that is produced electronically, such as photocopies, as included in the sections catch-all proviso: "any print-out or output, readable by sight or other means". We do not agree. In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following documents offered as evidence by the petitioner, to wit: 1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with "RECEIVED" stamped thereon, together with a handwritten date; 2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioners power barges 207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by Messrs. Rex Malaluan and Virgilio Asprer; 3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the Jurat were handwritten, and manually signed by the Notary Public; 5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received; 6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.; 7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a handwritten notation of the date it was received, and other handwritten notations; 8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten notation when it was received by the party; 9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance agreement between petitioner and Hopewell, containing handwritten notations and every page containing three unidentified manually placed signatures; 10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it was received. The sub-markings also contain manual signatures and/or handwritten notations; 11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures and/or handwritten notations; 12. Exhibit "O" is the same photocopied document marked as Annex C;

13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and Bautista and by the Notary Public, with other handwritten notations; 14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary Public, together with other handwritten notations. On the other hand, an "electronic document" refers to information or the representation of information, data, figures, symbols or other models of written expression, described or however represented, by which a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is received, 5 recorded, transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents and any printout, readable by sight or other means which accurately reflects the electronic data 6 message or electronic document. The rules use the word "information" to define an electronic document received, recorded, transmitted, stored, processed, retrieved or produced electronically. This would suggest that an electronic document is relevant only in terms of the information contained therein, similar to any other document which is presented in evidence as 7 proof of its contents. However, what differentiates an electronic document from a paper-based document is the manner by which the information is processed; clearly, the information contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced electronically. A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of the contents therein, such as the signatures of the persons who purportedly signed the documents, may be recorded or produced electronically. By no stretch of the imagination can a persons signature affixed manually be considered as information electronically received, recorded, transmitted, stored, processed, retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced through an electronic process, then these photocopies are electronic documents as defined in the Rules on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential that the same may not be considered as the functional equivalent of their original as decreed in the law. Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the records petitioners Exhibits "A", "C", "D", "E", "H" and its sub -markings, "I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best evidence rule and are therefore of no probative value being incompetent pieces of evidence. Before the onset of liberal rules of discovery, and modern technique of electronic copying, the best evidence rule was designed to guard against incomplete or 8 fraudulent proof and the introduction of altered copies and the withholding of the originals. But the modern justification for the rule has expanded from the prevention of fraud to a recognition that writings occupy a central 9 position in the law. The importance of the precise terms of writings in the world of legal relations, the fallibility of the human memory as reliable evidence of the terms, and the hazards of inaccurate or incomplete duplicate are 10 the concerns addressed by the best evidence rule. Moreover, as mandated under Section 2, Rule 130 of the Rules of Court: "SECTION 2. Original writing must be produced; exceptions. There can be no evidence of a writing the contents of which is the subject of inquiry, other than the original writing itself, except in the following cases: (a) When the original has been lost, destroyed, or cannot be produced in court; (b) When the original is in the possession of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (c) When the original is a record or other document in the custody of a public officer; (d) When the original has been recorded in an existing record a certified copy of which is made evidence by law; (e) When the original consists of numerous accounts or other documents which cannot be examined in court without great loss of time and the fact sought to be established from them is only the general result of the whole."

When the original document has been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution or existence and the cause of its unavailability without bad faith on his part, may prove its contents by a copy, or by a recital of its contents in some authentic document, or by the testimony of witnesses in 11 the order stated. The offeror of secondary evidence is burdened to prove the predicates thereof: (a) the loss or destruction of the original without bad faith on the part of the proponent/offeror which can be shown by 12 circumstantial evidence of routine practices of destruction of documents; (b) the proponent must prove by a fair preponderance of evidence as to raise a reasonable inference of the loss or destruction of the original copy; and (c) it must be shown that a diligent and bona fide but unsuccessful search has been made for the document in 13 the proper place or places. However, in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as documentary evidence. Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by the trial court for it to present the originals of the photocopies it presented yet comes before us now praying that it be allowed to present the originals of the exhibits that were denied admission or in case the same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at the very least laid the predicate for the admission of said photocopies, this controversy would not have unnecessarily been brought before the appellate court and finally to this Court for adjudication. Had it not been for petitioners intransigence, the merits of petitioners complaint for damages would have been decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petitioner has only itself to blame for the respondent judges denial of admission of its aforementioned documentary evidence and consequently, the denial of its prayer to be given another opportunity to present the originals of the documents that were denied admission nor to lay the predicate for the admission of secondary evidence in case the same has been lost. WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against petitioner. SO ORDERED. G.R. No. 164273 March 28, 2007

EMMANUEL B. AZNAR, Petitioner, vs. CITIBANK, N.A., (Philippines), Respondent. DECISION AUSTRIA-MARTINEZ, J.: Before this Court is a Petition for Review assailing the Decision of the Court of Appeals (CA) in CA-G.R. CV No. 62554 dated January 30, 2004 which set aside the November 25, 1998 Order of the Regional Trial Court (RTC) Branch 10, Cebu City and reinstated the Decision of RTC Branch 20 of Cebu City dated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolution dated May 26, 2004 denying petitioners motion for reconsideration. The facts are as follows: Emmanuel B. Aznar (Aznar), a known businessman in Cebu, is a holder of a Preferred Master Credit Card (Mastercard) bearing number 5423-3920-0786-7012 issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren, Melissa and Richard Beane, on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit 3 to P635,000.00. With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth P237,000.00. 4 On July 17, 1994, Aznar, his wife and grandchildren left Cebu for the said destination. Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and 5 Indonesia, the same was not honored. And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his 6 card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash. He further claims that his
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humiliation caused by the denial of his card was aggravated when Ingtan Agency spoke of swindlers trying to use 7 8 blacklisted cards. Aznar and his group returned to the Philippines on August 10, 1994. On August 26, 1994, Aznar filed a complaint for damages against Citibank, docketed as Civil Case No. CEB16474 and raffled to RTC Branch 20, Cebu City, claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced him, his wife and grandchildren to abort important tour destinations and 9 prevented them from buying certain items in their tour. He further claimed that he suffered mental anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation due to the wrongful blacklisting 10 of his card. To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by 11 Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (Nubi) which shows that his card in 12 question was "DECL OVERLIMIT" or declared over the limit. Citibank denied the allegation that it blacklisted Aznars card. It also contended that under the terms and conditions governing the issuance and use of its credit cards, Citibank is exempt from any liability for the dishonor of its cards by any merchant affiliate, and that its liability for any action or incident which may be brought against it in relation to the issuance and use of its credit cards is limited to P1,000.00 or the actual damage proven 13 whichever is lesser. To prove that they did not blacklist Aznars card, Citibanks Credit Card Department H ead, Dennis Flores, presented Warning Cancellation Bulletins which contained the list of its canceled cards covering the period of 14 Aznars trip. On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos, rendered its decision 15 dismissing Aznars complaint for lack of merit. The trial court held that as between the computer print16 17 out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more 18 weight as their due execution and authenticity were duly established by Citibank. The trial court also held that even if it was shown that Aznars credit card was dishonored by a merchant establishment, Citibank was not 19 shown to have acted with malice or bad faith when the same was dishonored. Aznar filed a motion for reconsideration with motion to re-raffle the case saying that Judge Marcos could not be 20 21 impartial as he himself is a holder of a Citibank credit card. The case was re-raffled and on November 25, 1998, the RTC, this time through Judge Jesus S. De la Pea of Branch 10 of Cebu City, issued an Order granting Aznars motion for reconsideration, as follows: WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May 29, 1998 is hereby reconsidered, and consequently, the defendant is hereby condemned liable to pay the following sums of money: a) P10,000,000.00 as moral damages; b) P5,000,000.00 as exemplary damages; c) P1,000,000.00 as attorneys fees; and d) P200,000.00 as litigation expenses.
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Judge De la Pea ruled that: it is improbable that a man of Aznars stature would fabricate Exh. "G" or the computer print-out which shows that Aznars Mastercard was dishonored for the reason that it was declared over the limit; Exh. "G" was printed out by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testify as she was in a foreign country and cannot be reached by subpoena; taking judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, Exh. "G" can be received as prima facie evidence of the dishonor of Aznars Mastercard; no rebutting evidence was presented by Citibank to prove that Aznars Mastercard was not dishonored, as all it proved was that said credit card was not included in the blacklisted cards; when Citibank accepted the additional deposit of P485,000.00 from Aznar, there was an implied novation and Citibank was obligated to increase Aznars credit limit and ensure that Aznar will not encounter any embarrassing situation with the use of his Mastercard; Citibanks failure to comply with its obligation constitutes gross negligence as it caused Aznar inconvenience, mental anguish and social humiliation; the fine prints in the flyer of the credit card limiting the liability of the bank to P1,000.00 or the actual damage proven, whichever is lower, is a contract of adhesion 23 which must be interpreted against Citibank.

Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Pea for grave misconduct, gross ignorance of the law and incompetence, claiming among others that said judge rendered his decision without having read the transcripts. The administrative case was held in abeyance pending 24 the outcome of the appeal filed by Citibank with the CA. lawphi1.net On January 30, 2004, the CA rendered its Decision granting Citibanks appeal thus: WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional Trial Court, 7th Judicial Region, Branch 10, Cebu City, in Civil Case No. CEB-16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional Trial Court, 7th Judicial Region, Branch 20, Cebu City in this case is REINSTATED. SO ORDERED.
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The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was dishonored in certain establishments; such dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is an electronic document which must be authenticated pursuant to Section 2, 26 27 Rule 5 of the Rules on Electronic Evidence or under Section 20 of Rule 132 of the Rules of Court by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to do with the said dishonor; Citibank had no absolute control over the actions of its merchant affiliates, thus it should not be held liable for the dishonor of Aznars cr edit card by said 28 establishments. Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated May 26, 2004.
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Parenthetically, the administrative case against Judge De la Pea was activated and on April 29, 2005, the 30 Courts Third Division found respondent judge guilty of knowingly rendering an unjust judgment and ordered his suspension for six months. The Court held that Judge De la Pea erred in basing his Order on a manifestation submitted by Aznar to support his Motion for Reconsideration, when no copy of such manifestation was served on the adverse party and it was filed beyond office hours. The Court also noted that Judge De la Pea made an 31 egregiously large award of damages in favor of Aznar which opened himself to suspicion. Aznar now comes before this Court on a petition for review alleging that: the CA erroneously made its own factual finding that his Mastercard was not blacklisted when the matter of blacklisting was already a non-issue in the November 25, 1998 Order of the RTC; the RTC found that Aznars Mastercard was dishonored for the reason that it was declared over the credit limit; this factual finding is supported by Exh. "G" and by his (Aznars) testimony; the issue of dishonor on the ground of DECL OVERLIMIT, although not alleged in the complaint, was tried with the implied consent of the parties and should be treated as if raised in the pleadings pursuant to 32 Section 5, Rule 10 of the Rules of Civil Procedure; Exh. "G" cannot be excluded as it qualifies as an electronic evidence following the Rules on Electronic Evidence which provides that print-outs are also originals for purposes of the Best Evidence Rule; Exh. "G" has remained complete and unaltered, apart from the signature of Nubi, thus the same is reliable for the purpose for which it was generated; the RTC judge correctly credited the testimony of Aznar on the issuance of the computer print-out as Aznar saw that it was signed by Nubi; said testimony constitutes the "other evidence showing the integrity and reliability of the print-out to the satisfaction of the judge" which is required under the Rules on Electronic Evidence; the trial court was also correct in finding that Citibank was grossly negligent in failing to credit the additional deposit and make the necessary entries in its systems to 33 prevent Aznar from encountering any embarrassing situation with the use of his Mastercard. Citibank, in its Comment, contends that: Aznar never had personal knowledge that his credit card was blacklisted as he only presumed such fact; the issue of dishonor on the ground that the card was declared over the limit was also never tried with the implied consent of both parties; Aznars self -serving testimony is not sufficient to prove the integrity and reliability of Exh. "G"; Aznar did not declare that it was Nubi who printed the document and that said document was printed in his presence as he merely said that the print-out was provided him; there is also no annotation on Exh. "G" to establish that it was Nubi who printed the same; assuming further that Exh. "G" is admissible and Aznars credit card was dishonored, Citibank still cannot be held liable for damages as it only shows that Aznars credit card was dishonored for having been declared over the limit; Aznars cause of action against Citibank hinged on the alleged blacklisting of his card which purportedly caused its dishonor; dishonor alone, however, is not sufficient to award Aznar damages as he must prove that the dishonor was caused by a 34 grossly negligent act of Citibank; the award of damages in favor of Aznar was based on Article 1170 of the Civil Code, i.e., there was fraud, negligence or delay in the performance of its obligation; there was no proof, however that Citibank committed fraud or delay or that it contravened its obligations towards Aznar; the terms and conditions of the credit card cannot be considered as a contract of adhesion since Aznar was entirely free to reject the card if he did not want the conditions stipulated therein; a person whose stature is such that he is

expected to be more prudent with respect to his transactions cannot later on be heard to complain for being 35 ignorant or having been forced into merely consenting to the contract. In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous with the words "hot list" or "declared overlimit"; and whether his card was blacklisted or declared over the limit, the same was dishonored 36 due to the fault or gross negligence of Citibank. Aznar also filed a Memorandum raising as issues the following: I. Whether or not the augmentation deposit in the amount of P485,000.00 of the Petitioner constitutes relative extinctive novation; II. Whether or not the purchases made by Petitioner were beyond his credit limit; III. Whether or not the issues of dishonor by reason of overlimit was tried with the consent of the parties; IV. Whether or not the "On Line Authorization Report" is an electronic document." V. Whether or not the "On Line Authorization Report" constitutes electronic evidence; VI. Whether or not the agreement between the parties is a contract of adhesion; VII. Whether or not the Respondent is negligent in not crediting the deposits of the Respondent.
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Aznar further averred in his Memorandum that Citibank assured him that with the use of his Mastercard, he would never be turned down by any merchant store, and that under Section 43, Rule 130 of the Rules of Court, Exh. 38 "G" is admissible in evidence. Citibank also filed a Memorandum reiterating its earlier arguments.
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Stripped to its essentials, the only question that needs to be answered is: whether Aznar has established his claim against Citibank. The answer is no. It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his case based on a 40 preponderance of evidence. The party that alleges a fact also has the burden of proving it. In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his Mastercard which caused its dishonor in several establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan Agency in Indonesia where he was humiliated when its staff insinuated that he could be a swindler trying to use a blacklisted card. As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove with a preponderance of 41 evidence that Citibank blacklisted his Mastercard or placed the same on the "hot list." Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic". Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic? A. Okey. When I presented this Mastercard, my card rather, at the Merchants store, I do not know, they called up somebody for verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up; where they verified. So, when it is denied thats presumed to be blacklisted. Q. So the word that was used was denied?

A. Denied. Q. And after you were told that your card was denied you presumed that it was blacklisted? A. Definitely. Q. So your statement that your card was allegedly blacklisted is only your presumption drawn from the fact, from your allegations, that it was denied at the merchandise store? A. Yes, sir.
42

(Emphasis supplied)

The dishonor of Aznars Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznars own admission that in other merchant establishments in Kuala Lumpur 43 and Singapore, his Mastercard was accepted and honored. Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. On said print-out appears the words "DECL OVERLIMIT" opposite Account No. 5423-3920-0786-7012. As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and due execution were not sufficiently established by petitioner. The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It provides that whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by (a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the maker. Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out. Indeed, all he was able to allege in his testimony are the following: Q I show to you a Computer Print Out captioned as On Line Authorization Activity Report where it is shown that the Preferred Master Card Number 5423392007867012 was denied as per notation on the margin of this Computer Print Out, is this the document evidencing the dishonor of your Preferred Master Card? xxxx A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on the left hand side you will be able to see the name of the person in-charged [sic] there certifying that really my card is being blacklisted and there is the signature there of the agency. ATTY. NAVARRO: The witness, your honor, is pointing to the signature over the handwritten name of Victrina Elnado Nubi which I pray, your honor, that the Computer Print Out be marked as our Exhibit "G" and the remarks at the left hand bottom portion of Victorina Elnado Nubi with her signature thereon be encircled and be marked as our Exhibit "G1". xxxx Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit "G"? A This is provided by that Agency, your honor. They were the ones who provided me with this. So what the lady did, she gave me the Statement and I requested her to sign to show proof that my Preferred 44 Master Card has been rejected. (Emphasis supplied). Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by Aznar in this case, the authentication of Exh. "G" would still be found wanting.

Pertinent sections of Rule 5 read: Section 1. Burden of proving authenticity. The person seeking to introduce an electronic document in any legal proceeding has the burden of proving its authenticity in the manner provided in this Rule. Section 2. Manner of authentication. Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge. Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." The Court is not convinced. Aznar s testimony that the person from Ingtan Agency merely handed him the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-outs integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out from the agency; Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency was mentioned by Aznar, its business address was not reflected in the print45 out. Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true. In fact, Aznar to repeat, testified as follows: ATTY. NERI Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic" Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic? A Okey. When I presented this Mastercard, my card rather, at the Merchants store , I do not know, they called up somebody for verification then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up; where they verified. So, when it is denied thats 46 presumed to be blacklisted. (Emphasis supplied) Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in the course of business, to support Exh. "G". Said provision reads: Sec. 43. Entries in the course of business. Entries made at, or near the time of the transactions to which they refer, by a person deceased or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty. Under this rule, however, the following conditions are required: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty.
47

As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the computer print-out the name of a certain "Victrina Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal side were handwritten the words "Sorry for the delay since the records had to be retrieved. Regards. Darryl Mario. " It is not clear therefore if it was Nubi who encoded the information stated in the print-out and was the one who printed the same. The handwritten annotation signed by a certain Darryl Mario even suggests that it was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant, required by the provision above mentioned, was therefore not established. Neither did petitioner establish in what professional capacity did Mario or Nubi make the entries, or whether the entries were made in the performance of their duty in the ordinary or regular course of business or duty. And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of petitioner was denied because it was already over the limit. There is no allegation in the Complaint or evidence to show that there was gross negligence on the part of Citibank in declaring that the credit card has been used over the limit. The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's account 48 number, which data, petitioner did not clarify. As plaintiff in this case, it was incumbent on him to prove that he did not actually incur the said amount which is above his credit limit. As it is, the Court cannot see how Exh. "G" could help petitioner's claim for damages. The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is likewise effectively negated by the evidence of Citibank which was correctly upheld by the RTC and the CA, to wit: xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank, presented documents known as Warning Cancellation Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits 3, 3 -1 to 3-38, 4, 4-1 to 4-38 5, 5-1 to 5-39 and 6, 6-1 to 6-39), for August 7, 1994 (Exhibit[s] 7, 7-1 to 7-37), for August 8, 1994 (Exhibit[s] 8, 8-1 to 8-20) which show that plaintiffs Citibank preferred mastercard was not placed in a hot list or was not blacklisted. The Warning Cancellation Bulletins (WCB) (Exhibits 3, 4, 5, 6, 7, 8 and their submarkings) which covered the period of four (4) days in July 1994 (from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994, (August 7 and 8, 1994), when plaintiff traveled in the aforementioned Asian countries showed that said Citibank preferred mastercard had never been placed in a hot list or the same was blacklisted, let alone the fact that all the credit cards which had been cancelled by the defendant bank were all contained, reported and listed in said Warning Cancellation Bulletin which were issued and released on a regular basis. These three hundred (300) Warning Cancellation Bulletins pieces of documentary proofs, all in all, adduced by defendant pointed to the fact that said plaintiffs credit car ( sic) was not among those found in said bulletins as having been cancelled for the period for which the said bulletins had been issued. Between said computer print out (Exhibit G) and the Warning Cancellation Bulletins (Exhibits 3 to 8 and their submarkings) the latter documents adduced by defendant are entitled to greater weight than that said computer print out presented by plaintiff that bears on the issue of whether the plaintiffs preferred master card was actually placed in the hot list or blacklisted for the following reasons: The first reason is that the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly established and identified by defendants own witness, Dennis Flores, one of the banks of ficers, who is the head of its credit card department, and, therefore, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiffs preferred master credit card was never blacklisted or placed in the Banks hot list. But on the other hand, plaintiffs computer print out (Exhibit G) was never authenticated or its due execution had never been duly established. Thus, between a set of duly authenticated commercial documents, the Warning Cancellation Bulleti ns (Exhibits 3 to 8 and their submarkings), presented by defendants (sic) and an unauthenticated private document, plaintiffs computer print out (Exhibit G), the former deserves greater evidentiary weight supporting the findings of this Court that p laintiffs preferred master 49 card (Exhibit 1) had never been blacklisted at all or placed in a so -called hot list by defendant. Petitioner next argues that with the additional deposit he made in his account which was accepted by Citibank, there was an implied novation and Citibank was under the obligation to increase his credit limit and make the necessary entries in its computerized systems in order that petitioner may not encounter any embarrassing situation with the use of his credit card. Again, the Court finds that petitioner's argument on this point has no leg to stand on. Citibank never denied that it received petitioners additional deposit. It even claimed that petitioner was able to purchase plane tickets from Cebu to Kuala Lumpur in the amount of P237,170.00, which amount was beyond
50

his P150,000.00 limit, because it was able to credit petitioners additional deposit to his account. Flores of Citibank testified: COURT: Q When was this ticket purchased, after the account was augmented or before? A After the account was augmented, Your Honor, because there is no way we can approve a P250,000.00 51 purchase with a P150,000.00 credit limit. xxx ATTY. NERI: For the record, your honor, the deposit of P450,000.00 was made as per exhibit of the plaintiff on June 28. The purchase of the tickets amount to P237,000.00 was approved and debited on the account of Mr. Aznar on July 20, your honor. The deposit was made about a month before the purchase of the tickets as per documentary exhibits, your honor. COURT: So, Atty. Navarro, what do you say to that explanation? ATTY. NAVARRO [counsel of petitioner]: That is correct, your honor, that is borne out by the records, your honor. (Emphasis supplied) COURT: (to witness) Q So, I think Atty. Navarro is only after whether a credit line could be extended? A Yes, your honor. Q Even if there is no augmenting? A No, sir, it is not possible. So, the only way the P237,000.00 transaction could be approved was by way of advance payment which actually happened in this case because there is no way that the P237,000.00 can 52 be approved with the P150,000.00 credit limit. (Emphasis supplied) The allegations of blacklisting not having been proved, is Citibank liable for damages for the dishonor of Aznars Mastercard? Again, the answer is no. Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms and conditions governing the issuance of its Mastercard which read: 7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by any merchant affiliate for any reason. Furthermore, [the cardholder] will not hold [Citibank] responsible for any defective product or service purchased through the Card. xxxx 15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident thereto which [the cardholder] or any other party may file against [Citibank], [Citibanks] liability shall not exce ed One Thousand 53 Pesos [P1,000.00] or the actual damages proven, whichever is lesser.

On this point, the Court agrees with Aznar that the terms and conditions of Citibanks Mastercard constitute a contract of adhesion. It is settled that contracts between cardholders and the credit card companies are contracts of adhesion, so-called, because their terms are prepared by only one party while the other merely affixes his 54 signature signifying his adhesion thereto. In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not responsible if the Card is not honored by any merchant affiliate for any reason x x x". While it is true that Citibank may have no control of all the actions of its merchant affiliates, and should not be held liable therefor, it is incorrect, however, to give it blanket freedom from liability if its card is dishonored by any merchant affiliate for any reason. Such phrase renders the statement vague and as the said terms and conditions constitute a contract of adhesion, any 55 ambiguity in its provisions must be construed against the party who prepared the contract, in this case Citibank. Citibank also invokes paragraph 15 of its terms and conditions which limits its liability to P1,000.00 or the actual damage proven, whichever is lesser. Again, such stipulation cannot be considered as valid for being unconscionable as it precludes payment of a larger amount even though damage may be clearly proven. This Court is not precluded from ruling out blind adherence to the terms of a contract if the attendant facts and circumstances show that they should be ignored 56 for being obviously too one-sided. The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in favor of petitioner. It is settled that in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries resulted from a breach of duty which the defendant owed to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation of law; thus there must first be a breach before damages may be awarded and the breach of such duty should be the proximate cause of the 57 injury. It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as a result of the actuations of the other party. It is also required that a culpable act or omission was factually established, that proof that the wrongful act or omission of the defendant is shown as the proximate cause of the damage sustained by the claimant and that the case is predicated on any of the instances expressed or envisioned by 58 59 60 Arts. 2219 and 2220 of the Civil Code. In culpa contractual or breach of contract, moral damages are recoverable only if the defendant has acted fraudulently or in bad faith, or is found guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The breach must be wanton, reckless, malicious or in bad faith, oppressive or 61 abusive. While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card was dishonored by Ingtan Agency, especially when the agencys personnel insinuated that he could be a swindler trying to use blacklisted cards, the Court cannot grant his present petition as he failed to show by preponderance of evidence that Citibank breached any obligation that would make it answerable for said suffering. As the Court pronounced in BPI Express Card Corporation v. Court of Appeals,
62

We do not dispute the findings of the lower court that private respondent suffered damages as a result of the cancellation of his credit card. However, there is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered. Thus, there can be damage without injury to those instances in which the loss or harm was not the result of a violation of a legal duty. In such cases, the consequences must be borne by the injured person alone, the law affords no remedy for damages resulting from an act which does not amount to a legal injury or wrong. These situations are often called damnum absque 63 injuria. WHEREFORE, the petition is denied for lack of merit. SO ORDERED.

[G.R. No. 117221. April 13, 1999]

IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents. DECISION MENDOZA, J.: This is a petition for certiorari to set aside the decision, dated April 15, 1994, of the National Labor Relations Commission (NLRC) finding private respondent to have been illegally dismissed and ordering his reinstatement and the payment of his wages from August 1991 until he is reinstated. Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling computers and computer services. Petitioners Virgilio L. Pea and Victor V. Reyes were ranking officers of IBM during the period pertinent to this case. On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office Products [2] Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the company, received [3] numerous awards, and represented the company in various seminars and conferences in and out of the [4] country. On February 1, 1990, private respondent was assigned to the team supervised by petitioner Reyes. On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that his employment in the company was to be terminated effective July 31, 1991 on the ground of habitual tardiness and absenteeism. The letter states, thus: June 27, 1991 Mr. Angel D. Israel Present Dear Angel, This refers to our previous discussion regarding your habitual absences and tardiness the last of which was on June 26, 1991. Your records will attest to the fact that on several occasions, your attention has been called to your habitual tardiness and non-observance of standing office procedures regarding attendance. Despite several opportunities given to you, you cannot seem to reform your ways and attitude on the matter of attendance. Considering that we are a service-oriented company, you can appreciate that we cannot allow such a situation to continue lest we put the best interest of the Company in jeopardy. Much to our regret, therefore, pleased (sic) be advised that the Company is terminating your employment effective July 31, 1991. You are requested to report to Personnel Department at your earliest convenience for the settlement of any money or benefits due you. Very truly yours, (Sgd) V.V. REYES Business Manager cc: L.L. Abano Alleging that his dismissal was without just cause and due process, private respondent filed a complaint with the Arbitration Branch of the Department of Labor and Employment (DOLE) on July 18, 1991.
[1]

In his position paper filed on September 6, 1991, he claimed that he was not given the opportunity to be heard and that he was summarily dismissed from employment based on charges which had not been duly [5] proven. Petitioners denied private respondents claims. It was alleged that several conferences were held by the management with private respondent because of the latters unsatisfactory performance in the company and he [6] was given sufficient warning and opportunity to reform and improve his attitude toward attendance, but to their regret, he never did. It was alleged that private respondent was constantly told of his poor attendance record and inefficiency through the companys internal electronic mail (e -mail) system. According to petitioners, this system [7] allows paperless or telematic communication among IBM personnel in the company offices here and abroad. An employee is assigned a User ID and the corresponding password is prov ided by the employee himself and, theoretically, known only to him. Employees are then expected to turn on their computers everyday, log in to the system by keying in their respective IDs and passwords in order to access and read the messages sent to and stored in the computer system. To reply, an employee types in or encodes his message-response and sends the same to the intended recipient, also via the computer system. The system automatically records the time and date each message was sent and received, including the identification of the sender and receiver [8] thereof. All messages are recorded and stored in computer disks. Attached to petitioners position paper were copies of print-outs of alleged computer entries/messages sent by petitioner Reyes to private respondent through IBMs internal computer system. The following is a summary of the contents of the print-outs which mostly came from petitioner Reyes computer: (a) Private respondent was admonished when he would miss out on meetings with clients and failed to [9] attend to important accounts, such as that of Hella Philippines; (b) Petitioner Reyes conducted consultations with private respondent concerning the latters work [10] habits; (c) A new policy of requiring employees to be at the office at 8:30 a.m. every morning was adopted [11] and employees were no longer allowed to sign out of the office by phone; (d) Petitioner Reyes would type into his computer the records of the security guard which reflect [12] private respondents daily tardiness and frequent absences; (e) Private respondent was admonished when he failed to respond to instructions from his [13] superiors; (f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of attention given to [14] Hella Philippines. Private respondent directly answered IBM Australia, through telematic memo, and reported that Hella Philippines was deferring its computer plan and decided to use micros in the [15] meantime; (g) The said response was denied by Hella Australia which later made it clear that it would be buying [16] anything but IBM; and (h) While private respondent showed some improvement after consultations where he allegedly admitted his shortcomings, petitioner Reyes reported that he (private respondent) would eventually slide back to his old ways despite constant counselling and repeated warnings that he would be terminated if he [17] would not improve his work habits. Through these computer print-outs calling private respondents attention to his alle ged tardiness and absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the charges against him and was guilty thereof because of his failure to deny the said charges. On March 13, 1992, the labor arbiter rendered a decision finding private respondent to have been terminated for cause and accordingly dismissing the complaint. Considering, however, the ground for termination as well as private respondents long record of service to the company, the arbiter ordered the award of separation pay at the rate equivalent to one-half (1/2) month salary for every year of service. The dispositive portion of the decision reads WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM Phils., Inc. not guilty of the charge of illegal dismissal. However, respondent company is directed to pay complainant Israel the sum of Two Hundred Forty Eight Thousand (P248,000.00) as separation pay. All other claims are denied for lack of merit. It appears, however, that prior to the release of the labor arbiters decision at 11:21 a.m. on March 26, 1992, private respondent had filed a Manifestation And Motion To Admit Attached New Evidence For The Complainant which was received by the Arbitration Branch at 10:58 a.m. of t he same day. The evidence consisted of private respondents Daily Time Records (DTRs) for the period June 1, 1990 to August 31, 1990 and pay slips for the period January 1990 to June 1991 showing that private respondent did not incur any unexcused

absences, that he was not late on any day within the period and that no deduction was made from his salary on account of tardiness or absences. Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiters decision and found private respondents dismissal illegal. The NLRC ruled: (1) that the computer print-outs which petitioners presented in evidence to prove that private respondents office attendance was poor were insufficient to show that the latter was guilty of habitual absences and tardiness; and (2) that private respondent was not [18] heard in his defense before the issuance of the final notice of dismissal. The dispositive portion of the NLRCs decision reads: WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new one entered declaring the dismissal of the complainant as illegal. Respondent (sic) are hereby ordered to reinstate complainant to his former position without loss of his seniority rights and to pay backwages starting August 1991 until reinstated at the rate of P40,516.65 a month including all its benefits and bonuses. Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that petitioners have presented strong and convincing documentary evidence that private respondent was guilty of habitual tardiness and absences. She was also of the opinion that private respondent was sufficiently warned before he was actually [19] dismissed. Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July 20, 1994. Hence, this petition for certiorari. Petitioners contend that 1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OF JURISDICTION IN HOLDING THAT NO JUST CAUSE EXISTS NOR WAS THERE DUE PROCESS OBSERVED IN THE DISMISSAL OF THE PRIVATE RESPONDENT BECAUSE THE COMPUTER PRINTOUTS WHICH PROVE JUST CAUSE AND DUE PROCESS ARE NOT ADMISSIBLE IN EVIDENCE. 2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION TANTAMOUNT TO LACK OR EXCESS OF ITS JURISDICTION IN HOLDING THAT EVEN IF THE COMPUTER PRINTOUTS WERE ADMISSIBLE, PETITIONER FAILED TO SATISFY DUE PROCESS. We find petitioners contention to be without merit. First. Petitioners argue that the computer print-outs submitted by them need not be identified or authenticated according to the rules of procedure in regular courts in order for the same to be admissible in [20] evidence. They contend that technical rules of evidence do not apply to administrative/labor cases and because of a relaxation of the rules of evidence, private respondent was in fact allowed by the labor arbiter to [21] adduce additional evidence even after a decision had been rendered. It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical rules of [22] procedure and evidence in the adjudication of cases. This was the reason private respondent was allowed to submit additional evidence even after the case was deemed submitted for resolution by the labor arbiter. The [23] practice of admitting additional evidence on appeal in labor cases has been sanctioned by this Court. However, the liberality of procedure in administrative actions is subject to limitations imposed by basic [24] requirements of due process. As this Court said in Ang Tibay v. CIR, the provision for flexibility in administrative procedure does not go so far as to justify orders without a basis in evidence having rational [25] probative value. More specifically, as held in Uichico v. NLRC: It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules of procedure in the adjudication of cases. However, this procedural rule should not be construed as a license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the courts of law or equity are not controlling in proceedings before the NLRC,the evidence presented before it must at least have a modicum of admissibility for it to be given some probative value. The Statement of Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying signature of a certified public accountant or audited by an independent auditor, are nothing but self-serving documents which ought to be treated as a mere scrap of paper devoid of any probative value. The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the conduct of proceedings before administrative agencies, have nonetheless consistently required some proof of authenticity or reliability as condition for the admission of documents. In Rizal Workers Union v. Ferrer-Calleja, this Court struck down the decision of the Director of Labor Relations which was based on an unsigned and unidentified manifesto. It was held:
[26]

From even a perfunctory assessment, it becomes apparent that the evidence upon which said decision is professedly based does not come up to that standard of substantiality. It is of course also a sound and settled rule that administrative agencies performing quasi-judicial functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this so that disputes brought before such bodies may be resolved in the most expeditious and inexpensive manner possible. But what is involved here transcends mere procedural technicality and concerns the more paramount principles and requirements of due process, which may not be sacrificed to speed or expediency...The clear message of [Article 221 of the Labor Code] is that even in the disposition of labor cases, due process must never be subordinated to expediency or dispatch. Upon this principle, the unidentified documents relied upon by respondent Director must be seen and taken for what they are, mere inadmissible hearsay. They cannot, by any stretch of reasoning, be deemed substantial evidence of the election frauds complained of. Likewise, in the case of EMS Manpower & Placement Services v. NLRC, the employer submitted a photocopy of a telex which supposedly shows that the employee was guilty of serious misconduct and which became the basis of her dismissal. This Court ruled that the telex, a single document, totally uncorroborated [28] and easily concocted or fabricated to suit ones personal interest and purpose, was insufficient to uphold the employers defense. In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned daily time records presented to prove that the employee was neglectful of his duties: Indeed, the [DTRs] annexed to the present petition would tend to establish private respondents neglectful attitude towards his work duties as shown by repeated and habitual absences and tardiness and propensity for working undertime for the year 1992. But the problem with these DTRs is that they are neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do exist. More importantly, they are [29] not even signed by private respondent nor by any of the employers representatives... In the case at bar, a specimen of the computer print-out submitted by petitioners reads: Date and time 10/12/90 09:23:1 From: REYESVV -- MNLVM1 ISRAEL -- MNLRVM Israel, A.D.
[27]

To:

SEC: I IBM INTERNAL USE ONLY Subject: Angel, have been trying to pin you down for a talk the past couple of days. Whatever happened to our good discussion 2 weeks ago? I thought you would make an effort to come in on time from then on? If you have problems which prevent you from coming in on time, let me know because I would really like to help if I can. The sum of all your quotas is less than mine so I really need all of you pitching in. Kindly take a look at your proofs in-tray as there are some to dos which are pending. Acts such as St. Louis U. and NEECO should be worth looking into as theyve been inquiring about upgrading their very old boxes. If you are too tied up for these accounts do let me know so I can reassign. By Monday morning please. Lets give it that final push for the branch! ============================================================= Regards from the APPLICATION SYSTEMS MARKETING group Victor V. Reyes - Marketing Manager MNLVM 1 (REYESVV) T (832)8192-279

============================================================= Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or the receiver. There is thus no guarantee that the message sent was the same message received. As the Solicitor General pointed out, the messages were transmitted to and received not by private respondent himself but his [30] computer. Neither were the print-outs certified or authenticated by any company official who could properly attest that these came from IBMs computer system or that the data stored in the system were not and/or could not have been tampered with before the same were printed out. It is noteworthy that the computer unit and system in which the contents of the print-outs were stored were in the exclusive possession and control of petitioners since [31] after private respondent was served his termination letter, he had no more access to his computer.

Second. Even if the computer print-outs were admissible, they would not suffice to show that private respondents dismissal was justified. Petitioners contention is that private respondent was repeatedly warned through computer messages for coming in late or not reporting at all to the office during the period May 1990 -- June 1991 but he never denied [32] the allegations. Therefore, he must be deemed to have admitted these allegations. But the burden of proving that the dismissal was for just cause is on petitioners. They cannot simply rely on any admission by private respondent implied from his failure to deny the alleged computer messages to him which he denied he had ever received. On the other hand, private respondents additional evidence, consisting of DTRs and pay slips, show that he did not incur unexcused absences or tardiness or that he suffered deduction in pay on account of such absences or tardiness. Indeed, petitioners could have easily proven their allegations by presenting private respondents DTRs. Since these were in petitioners possession, their non -production thereof raises the presumption that if presented they would be adverse to petitioners. This is precisely what the best evidence rule guards against. The purpose of the rule requiring the production of the best evidence is the prevention of fraud, because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior evidence in its place, the presumption naturally arises that the better evidence is withheld for fraudulent purposes which its [33] production would expose and defeat. Private respondents DTRs for the period June 1, 1990 -- August 30, 1990 show that while his attendance record may not have been perfect, it was at least satisfactory. The days when private respondent did not report to the office were credited either as vacation or as sick leaves. On days when he was away on business trips, his destination was shown. The DTRs were signed by petitioner Victor Reyes. It is said that the DTRs presented were only for the period when private respo ndents attendance was excellent; he took care not to submit his DTRs for other months during which he was often late in coming to [35] office. As the Solicitor General has pointed out, however, it was precisely during that period of June 1, 1990 -August 30, 1990 when, according to the print-outs submitted by petitioners, private respondent was often late or absent. Nor is there proof to support petitioners allegation that it was private respondents secretary and not him [36] who often signed the attendance sheet. Indeed, petitioners did not present private respondents secretary or, at the very least, attach an affidavit sworn to by her to prove their allegations and thus dispute the DTRs presented by private respondent. This, notwithstanding ample opportunity to do so. On the other hand, as already stated, the DTRs, showing private respondents good attendance, were signed by petitioner Victor Reyes himself, and no good reason has been shown why they cannot be relied upon in determining private respondents attendance. Third. Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do not warrant private respondents dismissal. He has not been shown to have ever committed any infraction of company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend important client meetings and gave false representations to a valued client to cover his tracks, there is no record [37] finding him guilty of such offenses. Dismissal has always been regarded as the ultimate penalty. The fact that lapses in private respondents attendance record may have occurred only during his final year in the company, after a long period of exemplary performance, makes petitioners contention dubious. While it is true that long [38] years of service is no guarantee against dismissal for wrongdoing, at least the employees record does provide an index to his work. In case doubt exists between the evidence presented by the employer and that presented [39] by the employee, the scales of justice must be tilted in favor of the latter. Fourth. The print-outs likewise failed to show that private respondent was allowed due process before his dismissal. The law requires an employer to furnish the employee two written notices before termination of his employment may be ordered. The first notice must inform him of the particular acts or omissions for which his dismissal is sought, the second of the employers decision to dismiss the employee after he has been given the [40] opportunity to be heard and defend himself. These requirements were not observed in this case. As noted earlier, there is no evidence that there was an exchange of communication between petitioners and private respondent regarding the latters supposed substandard performance. Private respondent has consistently denied, however, that he was ever advised of the charges hurled against him. The so-called one-on-one consultations or personal counsellings mentioned in the print-outs between petitioner Reyes and private respondent concerning the latters work habits do not satisfy the [41] requirements of due process, as we had occasion to say in Pono v. NLRC.
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Consultations or conferences may not be a substitute for the actual holding of a hearing. Every opportunity and assistance must be accorded to the employee by the management to enable him to prepare adequately for his [42] defense, including legal representation. In Ruffy v. NLRC, this Court held that what would qualify as sufficient or ample opportunity, as required by law, would be every kind of assistance that management must accord to the employee to enable him to prepare adequately for his defense. No such opportunity was given to private respondent in this case. He was simply served his termination notice without being heard in his defense. Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them were not properly identified or authenticated, should have remanded the case to the arbiter for clarificatory hearing. A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, 4 provides: Immediately after the submission by the parties of their position papers/memorandum, the Labor Arbiter shall, motu proprio, determine whether there is a need for a formal trial or hearing. At this stage, he may, at his discretion and for the purpose of making such determination, ask clarificatory questions to further elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if any, from any party or witness. As held by the NLRC: Aside from these computer print-outs, respondents have not presented any other evidence to prove that complainant was ever called for investigation nor his side heard prior to receipt of the termination letter dated June 27, 1991. In fact, even if we consider these computer print-outs, respondents still failed to satisfy the requirements of procedural due process. . . . In this particular case, we observe that there is failure on the part of respondents to prove the existence of a legal cause. The evidence presented before the Labor Arbiter did not sufficiently and clearly support the allegation of respondents that complainant [44] committed habitual absences and tardiness resulting into inefficiency. In spite of this finding, petitioners failed to adduce additional evidence when they moved for a reconsideration of the NLRC decision or when they filed the instant petition. Despite the opportunities afforded them, petitioners failed to substantiate their allegations. Neither have they shown sufficient reasons to convince this Court that, if the case were to be remanded to the arbiter for a formal hearing, they would be able to present evidence which they could not have presented during the initial stages of this case. As we held in Megascope [45] General Services v. NLRC: As regards petitioners contention that a hearing has to be conducted to fully ventilate the issues in the case, . . . [s]uffice it to state that nonverbal devices such as written explanations, affidavits, position papers or other pleadings can establish just as clearly and concisely an aggrieved partys defenses. Petitioner was amply provided with the opportunity to present evidence that private respondents were not its employees. Indeed, it was petitioners failure to present substantial evidence to buttress its claims that worked to its disadvantage and not the absence of a full-blown hearing before the public respondent. WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is hereby AFFIRMED. SO ORDERED.
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