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[G.R.

No.

103911.

October

13,

1995.]

EDGARDO E. LOPEZ, Petitioner, v. SANDIGANBAYAN (SECOND DIVISION), OFFICE OF THE SPECIAL PROSECUTOR and ARNULFO M. AGLERON, Respondents. Ongkiko & Dizon LAW Offices for Petitioner.

The Solicitor General for Respondents.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WHAT NEED NOT BE PROVED; JUDICIAL NOTICE AND JUDICIAL ADMISSIONS, TAKEN IN CASE AT BAR. The issue to be resolved in this case is whether judicial notice can be taken of the fact that Petitioner Mayor Edgardo E. Lopez took his oath as Municipal Mayor of Mati, Davao Oriental, and assumed the position of Municipal Mayor only on February 2, 1988, in the face of the allegation in the Information that the accused was already the Mayor of Mati on December 10, 1987, and, as such Mayor, he connived with Gov. Leopoldo N. Lopez in accepting, receiving and using the ambulance in question. Judicial notice may be taken of petitioners oath taking before the Regional Trial Court Judge of Mati, Davao Oriental, the Hon. Roque A. Agton, as evidenced by a certification from the Records Officer of the Office of the Provincial Governor. The oath taking partakes of an official act, while the certification is an official act of an official of the Executive Department of the government. Since the prosecution has admitted the fact that petitioner was not yet the Municipal Mayor on or about December 10, 1987 and that Petitioner Mayor Lopez became the Municipal Mayor only after the date of the commission of the offense charged, such an admission constitutes as a judicial admission which is binding upon the prosecution. 2. POLITICAL LAW; PUBLIC OFFICIALS; CHARGES WHEN THERE WAS NO PREJUDICE TO PEOPLE OR COUNTRY; CASE AT BAR. We do not see any anomaly in the situation where a motor vehicle, while on paper donated to the Municipality of Mati, is in fact accepted by the Province of Davao Oriental, of which Mati is the capital, through its Provincial Governor; is outfitted by the province into a hospital ambulance; and is used by the Davao Oriental Provincial Hospital located in and serving the people of the Municipality of Mati. It is a strange and convoluted idea to prosecute the public officials involved herein when there was no prejudice to people or country. The ambulance was utilized for public health purposes by the Davao Oriental Provincial Hospital, a public health center located in the very municipality alleged to have been prejudiced by the accused Governors failure to de liver the ambulance to Mati. It is obvious that, while the Mitsubishi L-300 van was on paper donated to the Municipality of Mati, the vehicle was in spirit and in actuality intended for the use of the Davao Oriental Provincial Hospital. President Corazon C. A quinos Health Services Program called on the PCSO to provide ambulances to municipalities. State government hospitals, it is true are supposed to be assigned vehicles for use as ambulances to be paid for from their respective budget appropriations, but Governor Lopez was resourceful enough to appropriate a Mitsubishi L-300 van, which, while placed in the name of the Municipality of Mati, was intended for the use of the Davao Oriental Provincial Hospital. Mati has no use for an ambulance because it has no hospital or health clinic of its own. Had the vehicle in question been delivered to the Municipality of Mati, the vehicle was sure to wind up as a service vehicle for the Municipal Mayor because the municipal government could not have used it as an ambulance. Deprived of the use of the vehicle would have been the accused Mayor himself. Thus, it is incongruous to accuse Mayor Lopez for depriving himself of the use of the vehicle. Consequently, it is our holding that Criminal Case No. 16987 which was filed against the petitioner alone ought to be dismissed for lack of probable cause.

DECISION

HERMOSISIMA, JR., J.:

Down the oft-trodden path in our judicial system, by common sense, tradition and the law, the Judge in trying a case sees only judicial eyes as he ought to know nothing about the facts of the case, except those which have been adduced judicially in evidence. Thus, when the case is up for trial, the judicial head is empty as to facts involved and it is incumbent upon the litigants to the action to establish by evidence the facts upon which they rely. Section 1, Rule 129, of the Revised Rules of Court, however, provides that certain facts need not be proved because they are judicially noticed by the Courts. Judicial notice takes the place of proof and is equally as persuasive as actual evidence presented, whether testimonial or documentary.

The issue to be resolved in this case is whether judicial notice can be taken of the fact that Petitioner Mayor Edgardo E. Lopez took his oath as Municipal Mayor of Mati, Davao Oriental, and assumed the position of Municipal Mayor only on February 2, 1988, in the face of the allegation in the Information that the accused was already the Mayor of Mati on December 10, 1987, and, as such Mayor, he connived with Gov. Leopoldo N. Lopez in accepting, receiving and using the ambulance in question. Mainly sought to be annulled in the herein Petition for Certiorari, upon the ground of grave abuse of discretion amounting to lack of jurisdiction, is the Resolution of the Sandiganbayan (Second Division), denying Petitio ners motion to quash the Information, as amended, in Criminal Case No. 16987, entitled People of the Philippines v. Edgardo E. Lopez. Established, as may be gathered from the pleadings of the parties and the prosecutors reports as to law and the facts o n their several preliminary investigations, are the following facts:chanrob1es virtual 1aw library The Philippine Charity Sweepstakes Office (PCSO), represented by its General Manager, Fernando O. Carrascoso, executed on December 10, 1987, a Deed of Donation 1 of one (1) cream-white Mitsubishi L-300 van, for use as an ambulance, in favor of the Municipality of Mati, province of Davao Oriental. The municipality was represented by Provincial Governor Leopoldo N. Lopez, now deceased. The donation was accepted by the said Governor Lopez in the very Deed of Donation itself. Immediately after the acceptance of the donation, the ambulance was shipped through the Solid Shipping Lines from the North Harbor, Manila, to Davao Oriental via Davao City, a clearance for shipment having been obtained from the Headquarters Constabulary Highway Patrol Group. Freight charges were paid for by Governor Lopez. The Delivery Cargo Receipt, issued by the Terminal Facilities & Services Corporation of Ilang, Davao City, indicated that the consignee of the ambulance was Governor Lopez. Hon. Salvador R Gutierrez was then acting as Officer-In-Charge of the office of the Mayor of the Municipality of Mati. When turning over the Office of the Mayor to Petitioner Edgardo E. Lopez, who was elected as Mayor in the 1988 elections, Acting Mayor Gutierrez "forgot all about the ambulance" 2 and in effect failed to inform Petitioner Lopez that an ambulance was donated to the Municipality of Mati. Days after the donation was effected, Governor Leopoldo N. Lopez was purged and Atty. Teodoro Palma Gil was installed as OIC of the Office of the Provincial Governor of Davao Oriental. Mayoralty OIC Gutierrez was made to understand by Acting Governor Palma Gil that the Mitsubishi van, to be converted to an ambulance, was for the use of the Davao Provincial Hospital, but, since the hospital is located in Mati, the Acting Governor asked that the municipality shoulder the expenses for: (1) shipping the ambulance to Mati and (2) its conversion from a simple L-300 van into an ambulance. The vehicle was insured 3 and registered 4 in the name of the Province of Davao Oriental by the late Governor Lopez. Consequently, it was never turned over to the Municipality of Mati. 5 On September 17, 1988, while on its way to Davao City, the ambulance was stopped in Barangay Barol, Municipality of Lupon, and set on fire and completely burned by unidentified armed men. Whereupon, the political adversaries of Governor Lopez, making an issue of it, filed a complaint with the Ombudsman, charging Gov. Leopoldo N. Lopez, the newly-elected Mayor Edgardo E. Lopez, Isedronio G. Espadero, and Agustin F. Montefalcon with the offense of Violation of Republic Act No. 3019, otherwise known as the Anti-Graft & Corrupt Practices Act. Provincial Prosecutor Salvador Bijis, a regularly deputized Ombudsman prosecutor, was made to conduct the preliminary investigation of the case. He issued a Resolution 6 ordering the dismissal of the complaint for lack of merit. The Ombudsman for some reason reopened the preliminary investigation and designated Graft Investigating Officer Gay Maggie Balajadia as investigator. In a Resolution, 7 dated June 21, 1991, Graft Investigator Balajadia recommended the filing of an Information for the Violation of R A. 3019 against Gov. Leopoldo N. Lopez and Mayor Edgardo E. Lopez. The recommended Information was filed on August 3, 1991 before the Sandiganbayan and was docketed as Criminal Case No. 16987. The case was reinvestigated upon motion of both accused, but the prosecution, ironically through another Lopez, Prosecutor Mario Lopez, reinstituted the case by filing the following Amended Information 8 against Mayor Edgardo E. Lopez alone, because, by then, Gov. Leopoldo N. Lopez had already passed away: 9 "That on or about the 10th day of December, 1987, in the Province of Davao Oriental, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, a public officer, being then the Municipal Mayor of Mati, Davao Oriental, while in the performance of his official functions, conspiring and confederating with deceased Leopoldo N. Lopez, who was then the Provincial Governor of Davao Oriental, did then and there wilfully, unlawfully and criminally cause undue injury to the Municipality

of Mati through the following acts: deceased Leopoldo N. Lopez, with evident bad faith and after having received without authority an Ambulance Van described as a Cream White Mitsubishi L300 with Engine No 4G62 -DJ2407 donated by the Philippine Charity Sweepstakes Office to the Municipality of Mati, failed to deliver the same to the said municipality and instead registered it in the name of the Province of Davao Oriental and used it as a service vehicle of the Province of Davao Oriental, and accused Edgardo E. Lopez, being fully aware that the aforesaid ambulance van was donated to his municipality for the use of his constituents, through evident bad faith and manifest partiality failed to recover the same from deceased Leopoldo Lopez and instead acknowledged the Province of Davao Oriental as the actual donee and allowed the latter to appropriate the said ambulance van, thereby causing undue injury to the Municipality of Mati and its residents who were unjustifiably deprived of the ownership, possession and use of the aforesaid vehicle as well as a health service extended to them by the Government. CONTRARY TO LAW."cralaw virtua1aw library

Petitioner Mayor Edgardo E. Lopez, as sole defendant in the case, moved to quash the Amended Information upon the following grounds: (1) The Honorable Court (Sandiganbayan) has no jurisdiction over the offense charged; and (2) The criminal liability for the offense charged has been extinguished, the Petitioner contending that, at the time the donation of the ambulance was effected, he was only a member of the Sangguniang Bayan of Mati. The Municipality of Mati then had an Acting Mayor in the person of Hon. Salvador R Gutierrez. The donated vehicle was accepted and received and used by and in the name of Provincial Governor Leopoldo N. Lopez. Consequently, Petitioner Mayor Lopez had no participation in the acquisition, registration, and use of the vehicle in question. Accused petitioner, however, was elected as Municipal Mayor of Mati in the 1988 local elections. Thus, on February 2, 1988, Petitioner Edgardo E. Lopez then took his oath of office 10 as Municipal Mayor and assumed the position of Mayor of the Municipality of Mati, Davao Oriental. He took his oath before Davao Regional Trial Court Judge Roque A. Agton. Alleging that the Motion to Quash "reveals lack of legal or factual basis to justify the grant thereof", and that the nature, scope and legal consequences of the inculpatory allegations in the Amended Information remain to be ascertained during the trial, the Court a quo gave no merit to the motion and, thus, denied it. Pertinent portions of the questioned Resolution read:jgc:chanrobles.com.ph

"A careful and meticulous analysis of the arguments advanced by accused-movant to support the grounds relied upon in his Motion to Quash, taken in the light of the prosecutions opposition thereto, as well as the reply of the accused, clearly reveals the lack of legal or factual basis to justify the grant thereof Running pervasively throughout accused-movants pleadings are evidentiary matters which are more appropriate for presentation during the trial. There appears to be an apparent tendency on the part of accused-movant to confuse the existence of a prima facie case, as determined after due preliminary investigation, with proof beyond reasonable doubt, which can only be ascertained after trial on the merits. x x x

"Accused-movant contends that this Court has no jurisdiction over him for the offense charged, citing the date alleged in the Amended Information, which reads, that on or about the 10th day of December, 1987, and the fact that he became the Mayor of Mati, Davao Oriental, only on February 2, 1988 when he took his oath of office as the duly-elected mayor after the 1988 elections. However, as found by Prosecutor Mario V. Lopez, who conducted the reinvestigation of this case and who filed the Amended Information, Accused-movants participation is subsequent to December 10, 1987 and continued up to July 15, 1988 and October 5, 1990, during which period, Accused-movant had committed the following acts, to wit:chanrob1es virtual 1aw library . . .accused Edgardo E. Lopez, being fully aware that the aforesaid ambulance van was donated to his municipality for the us e of his constituents, through evident bad faith and manifest partiality failed to recover the same from deceased Leopoldo Lopez and instead acknowledged the Province of Davao Oriental as the actual donee and allowed the latter to appropriate the said ambulance van, thereby causing undue injury to the Municipality of Mati and its residents who were unjustifiably deprived of the ownership, possession and use of the aforesaid vehicle as well as a health service extended to them by the Government. The nature, scope and legal consequences of the inculpatory allegations in the Amended Information, with respect to accusedmovant, remains to be ascertained during the trial. Furthermore, We are of the considered opinion that inasmuch as conspiracy has been alleged between the two (2) accused herein, then there can be no question that this Court has jurisdiction over both or either of them. And inasmuch as it is clearly alleged in the Amended Information, supported by Prosecutor Lopez Order of December 4, 1991, (Pp. 108-l09, ibid), Accused-movant not only failed but likewise allowed his co-accused (Leopoldo Lopez) to appropriate the ambulance van but also allegedly sent two (2) letters to Gov. Lopez waiving the right of the municipality of Mati to

receive said van, which are dated July 15, 1988 and October 5, 1990, without any authorization from the Sangguniang Bayan, during which period of time, the accused-movant was already the municipal mayor, then it is crystal clear that this Court has jurisdiction not only over the offense charged but also over the persons of the accused, including accused-movant. Moreover, there being a charge of conspiracy, the death of any of the alleged co-conspirators does not extinguish the alleged criminal liability of the surviving co-conspirator, which is quite clear and evident from the provisions of Articles 89 and 90 of the Revised Penal Code."cralaw virtua1aw library Now comes the herein petition praying for the issuance of a writ of certiorari to annul this resolution of denial of the said Motion to Quash upon the following grounds:jgc:chanrobles.com.ph "I. THE RESPONDENT COURT ACTED ARBITRARILY IN RULING THAT IT HAS JURISDICTION OVER THE OFFENSE CHARGED. II. THE RESPONDENT COURT ACTED ARBITRARILY IN RULING THAT THE DEFENSES RAISED BY PETITIONER ARE PROPERLY INVOCABLE ONLY DURING TRIAL ON THE MERITS. III. THE RESPONDENT COURT ACTED ARBITRARILY IN REFUSING TO PASS UPON THE VALIDITY OF THE DONATION."cralaw virtua1aw library The Office of the Solicitor General filed a comment thereto, in an effort to refute the foregoing grounds. We note the reply thereto, the rejoinder, the sur-rejoinder and the Memoranda of the parties. We find the petition to be impressed with merit. I

We uphold the submission that the factual defenses of petitioner are matters within the concept of mandatory judicial notice. While it is true that, as pontificated by the Court a quo, factual defenses on the part of the accused are evidentiary matters which may be presented only during trial on the merits, the facts alleged by the accused are facts admitted, whether directly or impliedly, in pleadings of the prosecution and in the reports of the Provincial Prosecutor of Davao oriental and Graft Investigator Gay Maggie Balajadia. Consequently, the disposition of the matter in the questioned Resolution which states that "The nature, scope and legal consequences of the inculpatory allegations in the Amended Information, with respect to accused-movant, remains (sic) to be ascertained during the trial," is not at all correct. Judicial notice may be taken of petitioners oath taking before the Regional Trial Court Judge of Mati, Davao Oriental, the Hon. Roque A. Agton, as evidenced by a certification from the Records Officer of the office of the Provincial Governor. The oath taking partakes of an official act, while the certification is an official act of an official of the Executive Department of the government. We had the occasion to make rulings an a similar issue. In People v. Navarro & Antienza, 75 Phil. 516, for example, the accused, the Acting Provincial Governor and the Provincial Warden were charged with Arbitrary Detention for having allegedly committed the private complainant to prison without legal grounds. At pre-trial, it was conceded by the Fiscal that the offended parties were detained by order of the Commanding General, Western Visayas Task Force, United States Army. The accused thereupon filed a Motion to Quash upon the ground that the facts charged in the Information did not constitute an offense. The trial court granted the motion, from which the Solicitor General appealed, alleging that if the Information must be quashed on the ground that the facts charged do not constitute an offense, elementary logic dictates that the signed facts must be examined to determine the sufficiency of the allegations. In turning down the appeal, We ruled that:jgc:chanrobles.com.ph

"It must be noted that the section of the rule (sec. 2 *a+, Rule 113) permitting a motion to quash on the ground that the fa cts do not constitute an offense omits reference to the facts detailed in the information . Other sections of the same rule would imply that the issue is restricted to those alleged in the information (see secs. 9 and 10, Rule 113). Prima facie, the facts charged are those described in the complaint, but they may be amplified or qualified by others appearing to be additional circumstances, upon admissions could anyway be submitted by him as amendments to the information. It would seem to be pure technicality to hold that in the consideration of the motion the parties and the judge were precluded from considering the facts which the fiscal admitted to be true, simply because they were not described in the complaint. Of course, it may be added that upon similar motions the court and the fiscal are not required to go beyond the averments of the information, nor is the latter to be inveigled into a premature and risky revelation of his evidence. But we see no reason to prohibit the fiscal from making, in all candor, admissions of undeniable facts, because the principle ca n never be sufficiently reiterated that such officials role is to see that

justice is done: not that all accused are convicted, but that the guilty are justly punished. Less reason can there be to prohibit the court from considering those admission, and deciding accordingly, in the interest of a speedy administration of justice." (People v. Navarro, 75 Phil. 516, 518-519). Reiterating Navarro, this Court ruled in People v. De la Rosa, 98 SCRA 191, that:jgc:chanrobles.com.ph

"As a general proposition, a motion to quash on the ground that the allegations of the information do not constitute the offense charged, or any offense for that matter should be resolved on the basis alone of said allegations whose truth and veracity are hypothetically admitted. However, as held in the case of People v. Navarro, 75 Phil 516, additional facts not alleged in the information, admitted or not denied by the prosecution may be invoked in support of the motion to quash" (People v. De la Rosa, supra, at 196-197). And in Milo v. Salanga, 152 SCRA 113, We likewise ruled that:jgc:chanrobles.com.ph

"This is because a motion to quash is a hypothetical admission of the facts alleged in the information. Matters of defense cannot be proved during the hearing of such a motion, except where the Rules expressly permit, such as extinction of criminal liability, prescription and former jeopardy. In the case of U.S. v. Perez, this Court held that a motion to quash on the ground that the facts charged do not constitute an offense cannot allege new facts not only different but diametrically opposed to those alleged in the complaint. This rule admits of only one exception and that is when the facts are admitted by the prosecution." (Milo v. Salanga, supra, at 121). Since the prosecution has admitted the fact that petitioner was not yet the Municipal Mayor on or about December 10, 1987 and that Petitioner Mayor Lopez became the Municipal Mayor only after the date of the commission of the offense charged, such an admission constitutes as a judicial admission which is binding upon the prosecution. It is pointed out by the petitioner that public respondents, in their Comment, dated April 13, 1992, stated that:jgc:chanrobles.com.ph "But perhaps, Respondent Court, aside from denying the Motion to Quash should have likewise ordered a further amendment of the Amended Information to reflect the correct date of the commission of the crime considering that (1) the prosecution itself admitted that December 10, 1987 was the date the late Governor Lopez acc epted the ambulance van donated by the PCSO to municipality of Mati, Davao Oriental . . ." (Comment, p. 14). II

The accusation indeed avers that the accused Edgardo E. Lopez was the Municipal Mayor of Mati, Davao oriental, on December 10, 1987; that, on said date, he connived with Provincial Governor Leopoldo N. Lopez: (1) in receiving without authority an "Ambulance Van" donated by the PCSO to the Municipality of Mati, (2) in failing to driver the vehicle to Mati, and (3) in registering the vehicle in the name of the Province of Davao Oriental. Considering the admitted fact that, on December 10, 1987, the accused Edgardo E. Lopez was not yet the Municipal Mayor of Mati; that the acceptance of the donation and the receipt of the vehicle in question were acts perpetrated by Governor Leopoldo N. Lopez alone, the accusation of Edgardo E. Lopez has been falsely made. This was the very reason for the dismissal of the case by Provincial Prosecutor Salvador M. Bijis. That the case should be assigned to another prosecutor so that the case can be filed in court smacks of manifest partiality in favor of complainants. The accused claims that the hand of dirty politics and politicians entered the picture. The facts as stated even in the Amended Information, in the face of the verity that accused Edgardo E. Lopez was not yet the Mayor on Mayor on December 10, 1987, are such hollow and false allegations that they cannot be proven as against accused Edgardo E. Lopez. III

We do not see any anomaly in the situation where a motor vehicle, while on paper donated to the Municipality of Mati, is in fact accepted by the Province of Davao Oriental, of which Mati is the capital, through its Provincial Governor; is outfitted by the province into a hospital ambulance; and is used by the Davao Oriental Provincial Hospital located in and serving the people of the Municipality of Mati. The Provincial Prosecutor of Davao Oriental, after conducting the preliminary investigation of this case, dismissed it for lack of

merit,

and

took

occasion

to

state:jgc:chanrobles.com.ph

"Looking deeper on some matters not clearly shown by the records, it should be noticed that the Donee, the Municipality of Mati, does not run or have a hospital or medical clinic of its own. The Government Hospital existing in the Municipality of Mati is the Davao Oriental Provincial Hospital The Deed of Donation speaks of one (I) Ambulance and said Donation was pursuant to President Corazon C Aquinos campaign for better health and medical facilities. Undoubtedly, the one (1) Ambulance should be for the use of either a Government Hospital or clinic for which the Donee, the Municipality of Mati, has none. The donation of that One (1) Ambulance for the Municipality of Mati is, therefore, for no purpose at all. Inevitably, the Donation was intended for the Davao Oriental Provincial Hospital situated within the territorial area of the Municipality of Mati."cralaw virtua1aw library The donation should have rightfully been made in favor of the Province of Davao Oriental and not of the Municipality of Mati." 11 It is a strange and convoluted idea to prosecute the public officials involved herein when there was no prejudice to people or country. The ambulance was utilized for public health purposes by the Davao Oriental Provincial Hospital, a public health center located in the very municipality alleged to have been prejudiced by the accused Governors failure to deliver the ambulance t o Mati. It is obvious that, while the Mitsubishi L-300 van was on paper donated to the Municipality of Mati, the vehicle was in spirit and in actuality intended for the use of the Davao Oriental Provincial Hospital. President Corazon C. Aquinos Health Services Progr am called on the PCSO to provide ambulances to municipalities. State government hospitals, it is true, are supposed to be assigned vehicles for use as ambulances to be paid for from their respective budget appropriations, but Governor Lopez was resourceful enough to appropriate a Mitsubishi L-300 van, which, while placed in the name of the Municipality of Mati, was intended for the use of the Davao Oriental Provincial Hospital. Mati has no use for an ambulance because it has no hospital or health clinic of its own. Had the vehicle in question been delivered to the Municipality of Mati, the vehicle was sure to wind up as a service vehicle for the Municipal Mayor because the municipal government could not have used it as an ambulance. Deprived of the use of the vehicle would have been the accused Mayor himself. Thus, it is incongruous to accuse Mayor Lopez for depriving himself of the use of the vehicle. Consequently, it is our holding that Criminal Case No. 16987 which was filed against the petitioner alone ought to be dismissed for lack of probable cause. WHEREFORE, the herein Petition for Certiorari is granted. Sandiganbayan Criminal Case No. 16987, entitled People of the Philippines v. Edgardo E. Lopez, is hereby ordered dismissed, with costs de oficio. The SO Temporary Restraining Order heretofore issued is hereby made permanent. ORDERED.

Narvasa, C.J., Feliciano, Padilla, Regalado, Davide, Jr., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza and Francisco, JJ., concur. Panganiban, J., took no part.

FIRST [G.R. No. L-54886. September 10,

DIVISION 1981.]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. THE HONORABLE COURT OF APPEALS (Special Second Division), COURT OF FIRST INSTANCE OF BULACAN, TURANDOT, TRAVIATA, MARCELITA, MARLENE, PACITA, MATTHEW, VICTORIA and ROSARY, all surnamed ALDABA, Respondents. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eulogio Raquel-Santos and Solicitor Wilfredo D. Reyes for Petitioner. Felipe SYNOPSIS In an expropriation proceeding initiated by petitioner over a 15,000 sq. meter lot of private respondents situated in Barrio Tikay, Malolos, Bulacan, the trial Court fixed the just compensation of the land at P30.00 per sq. meter or a total of P450,000. Petitioner filed a notice of appeal and a motion for extension of 30 days from January 17, 1979 within which to file a record on appeal which was granted by the lower Court. On February 13, 1979, the trial Court allowed petitioner to borrow the records of the case and granted it a second extension of 30 days from February 17, 1979 to file the said record on appeal. A third and fourth motions for extension for a total of 60 days were also granted by the lower Court. On June 7, 1979 when its motion dated May 17, 1979 for a fifth extension of 30 days from May 18, 1979 has not been acted upon by the trial court, petitioner filed its record on appeal. On August 13, 1979, the lower court dismissed the appeal on the ground that the motion dated May 17, 1979 was posted late as shown by the date stamped on the envelope containing the motion for extension. The Court of Appeals sustained said dismissal order. Reiterating its claim that the motion dated May 17, 1979 was filed on time as shown by a certification of the postmaster, petitioner filed the instant recourse. The Supreme Court held that the respondent Court of Appeals gravely abused its discretion in affirming the questioned orders of the trial Court since a delay of one working day does not justify the outright dismissal of the appeal and that public interest warrants the suspension of the rules on the timeliness of the appeal. Disputed orders set aside and the trial court ordered to approve petitioners record on appeal and to elevate the same to the Hon. Intermediate Appellate Court. Alvarez for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; DISMISSAL; PROVISIONS OF THE RULES OF COURT THEREON. Section 13, Rule 41 provides that where the notice of appeal, appeal bond or record on appeal are not filed within the period of time herein provided, the appeal shall be dismissed; and Section 14, Rule 41 reads: A motion to dismiss an appeal on any of the grounds mentioned in the preceding section may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court. 2. ID.; ID.; ID.; RECORD ON APPEAL; DELAY OF ONLY ONE WORKING DAY IN FILING THE SAME DOES NOT JUSTIFY OUTRIGHT DISMISSAL OF APPEAL. A delay of only one working day in filing the record on appeal does not justify the outright dismissal of the appeal of petitioner especially so in the light of the undisputed fact that petitioner had already filed with the lower court the record on appeal at the time the questioned dismissal order was issued by the lower court. 3. ID.; ID.; ID,; ID.; ID.; POWER OF THE COURT TO SUSPEND ITS OWN RULES. A special circumstance which is the subject of one of the main issues raised by petitioner in its appeal warrants US to exercise once more OUR exclusive prerogative to suspend OUR own rules or to exempt a particular case from its operation as in the recent case of Republic of t he Philippines v. Court of Appeals, Et. Al. (83 SCRA 459, 478-480 [1978]) thus.." . . The Rules have been drafted with the primary objective of enhancing fair trials and expediting justice. As a corollary, if their application and operation tend to subvert and defeat instead of promote and enhance it, their suspension is justified . . ."cralaw virtua1aw library 4. ID.; EVIDENCE; JUDICIAL NOTICE; POST OFFICE PRACTICE, NOT COVERED THEREBY. The prevailing practice in post offices

"that registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the office" is not covered by any of the specific instances cited in Section 1 of Rule 129 on judicial notice. Neither can it be classified under "matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. . ."cralaw virtua1aw library 5. ID.; ID.; ID.; PROPER SUBJECT THEREOF. For a matter to be taken judicial notice of by the courts of law, it must be a subject of common and general knowledge. In other words, judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification. 6. ID.; ID.; ID.; POWER TO TAKE JUDICIAL NOTICE MUST BE EXERCISED WITH CAUTION. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative (31 CJS 522; Martin, Rules of Court 38, Second Edition).

DECISION

MAKASIAR, J.:

Petitioner, through this petition for review by certiorari, seeks to annul and set aside the respondent Court of Appea ls April 29, 1980 decision and August 15, 1980 resolution in CA-G.R. No. 10081-SP, entitled "Republic of the Philippines versus Hon. Roque Tamayo, Et. Al." a special action forcertiorari, prohibition and mandamus sustaining the lower courts action in dismissing petitioners appeal as not having been perfected on time. The root case is an expropriation proceedings initiated by the petitioner over a 15,000 square meter lot of private respondents situated in Barrio Tikay, Malolos, Bulacan, docketed in the lower court as Civil Case No 525, entitled "Republic of the Philippines v. Turandot Aldaba, Et. Al." The subject parcel of land is needed by the petitioner to set up a permanent site for the Bulacan Area Shop, Bureau of Equipment, Department of Public Highways, a public purpose authorized by law to be undertaken by the Ministry of Public Highways. On March 2, 1978, the lower court issued a writ of possession placing the petitioner in possession of the land in question, upon its deposit of the amount of P7,200.00 as provisional value. On March 31, 1978, counsel for private respondents filed a motion praying for the creation of a three (3)-man committee in accordance with Section 5, Rule 67 of the Rules of Court, to study and submit a report as to the just and reasonable compensation for the parcel of land subject of expropriation. On July 31, 1978, the lower court issued an order naming the chairman and members of the committee of three. On November 12, 1978, the three-man committee submitted a joint report to the lower court, recommending that the just compensation of the expropriated land be fixed at P50.00 per square meter. In this petition, the Solicitor General claims that he was not served copies of the aforementioned March 31, 1978 motion of private respondents, July 31, 1978 order of the respondent lower court and the November 17, 1978 report of the three-man committee. The records reveal that the Solicitor General authorized the provincial fiscal of Bulacan to represent him in that proceedings (pp. 11-12, C.A. rec.). Parenthetically, private respondents in their comment to this petition, alleged "that the Provincial Fiscal, being duly authorized by the office of the Solicitor General to represent the latter in this case, the court merely furnished the office of the Provincial Fiscal with all the pleadings and other papers of the case" (p. 53, rec.). On December 18, 1978, the Solicitor General received a copy of the lower courts order dated December 8, 1978. The order read s in part:jgc:chanrobles.com.ph "The joint report filed by the three-man committee charged with the determination of the just compensation of the property herein sought to be condemned is hereby APPROVED, such that the just compensation of the land described in Paragraph II of the Complaint is fixed at Thirty Pesos (P30.00) per square meter. "The defendant may now withdraw from the Philippine National Bank, Malolos, Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways under Account No. 35109, said sum to be part of the total amount of P450,000.00 (15,000 square meters at P30.00 per square meter), which the Department of Public Highways, Third Regional Equipment Services, Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein defendants as just compensation for the subject property."cralaw virtua1aw library On December 22, 1978, the Solicitor General filed through the mail a notice of appeal, as well as a first motion for extension of

time of 30 days from January 17, 1979 within which to file record on appeal. The extension sought for was granted by the lower court in its order dated January 17, 1979. On February 13, 1979, the lower court, acting upon petitioners manifestation filed on January 9, 1979 and motion f iled on February 8, 1979, allowed the Solicitor General to borrow the records of the expropriation case "under proper receipt, the Clerk of Court taking the necessary steps to index and number the pages thereof and to ensure its integrity; and granted a second extension of thirty (30) days from February 17, 1979, within which to file the record on appeal of the Republic of the Philippines" (p. 79, C.A. rec.). Again, on March 22,1979, the lower court granted petitioners third motion for an extension of thi rty (30) days from March 19, 1979 within which to file its record on appeal (p. 80, C.A. rec.). Subsequently, the lower court, in an order dated April 24, 1980, acted favorably upon petitioners motion for a fourth extens ion of thirty (30) days from April 19, 1979 within which to file its record on appeal and petitioners request that the records of the expropriation case be forwarded to the Solicitor General (p. 81, C.A. rec.). In a motion dated May 17,1979, the petitioner, invoking heavy pressure of work, asked for a fifth extension of thirty (30) days from May 18, 1979 or until June 17, 1979, within which to file its record on appeal (pp. 82-83, C.A. rec.). On June 7, 1979, when its motion for a fifth extension has not yet been acted upon by the lower court, petitioner filed its record on appeal (p. 13, rec.). On June 15, 1979, eight (8) days after petitioner had filed its record on appeal, private respondents filed an opposition to the aforesaid fifth motion for extension (pp. 85-87, C.A. rec.), and an objection to petitioners record on appeal (pp. 88 -89, C.A. rec.), on the ground that the same was filed beyond the reglementary period, because petitioners motion dated May 17, 1979 for extension to file record on appeal was mailed only on May 21, 1979 (pp. 13-14, rec.). On June 27, 1979, petitioner filed its opposition to the aforesaid objection to its record on appeal, contending that the said May 17, 1979 motion for extension of time was actually mailed on May 18, 1979, which was the last day of the extended period allowed by the lower courts order of April 24, 1979 (p. 14, rec.). In an order dated August 13, 1979 but received by the Solicitor General only on September 10, 1979, the lower court dismissed the appeal of petitioner on the ground that the fifth motion for extension of time dated May 17, 1979 within which to file the record on appeal and the record on appeal were filed out of time. The lower court found that the said fifth motion for extension of time was actually mailed on May 21, 1979 and not on May 18, 1979 as claimed by petitioner (pp. 14, 34-35, rec.). The order of dismissal reads:chanrobles virtual lawlibrary "Upon consideration of the approval of the record on appeal filed by the Republic and acting on the manifestation filed on July 25, 1979 by the defendants thru counsel, the Court finds no merit in the same. "The last motion of the Office of the Solicitor General for extension of time to file record on appeal was on May 17, 1979, seeking for an additional extension of thirty (30) days from April 18, 1979. "The thirty-day period requested by the Solicitor General from May 18, 1979 therefore expired on June 17, 1979. But this last request for extension was not acted upon by the court. The Republic of the Philippines had therefore only up to May 17, 1979, within which to file record on appeal. The record on appeal was filed only on June 11, 1979 (should be June 7), which is well beyond the period to file record on appeal. Moreover, the last motion for extension which was not acted upon by the Court had only been filed on May 21, 1979 as shown by the stamp of the Manila Post Office, the date of the mailing which should be reckoned with in computing periods of mailed pleadings, and received by the Court on June 22, 1979. Both the motion for extension filed on May 21, 1979 and the record on appeal filed on June 11, 1979 (should be June 7), have therefore been filed beyond the reglementary period of 30 days from April 18, 1979, or up to May 18, 1979. ". . ." (pp. 34-35, rec.).

On October 4, 1979, petitioner filed a motion for reconsideration claiming that "1) there is merit in plaintiffs appeal from this Honorable Courts order of December 8, 1978, a copy of which was received on December 18, 1978; 2) plaintiffs May 17, 1979 motion for 30 days extension from May 17, 1979 to file Record on Appeal, was actually filed on May 18, 1979; and 3) the Honorable Court denied plaintiffs appeal without first resolving plaintiffs motion for a 30 -day extension, from May 18, 1979 to file Record on Appeal" (pp. 14-15, rec.; pp. 52-66, C.A. rec.). Relative to the timeliness of the filing of its fifth motion for extension

of time, petitioner submitted a certification of the Postmaster of the Central Office of the Bureau of Posts, Manila, that registered letter No. 3273 containing the aforesaid motion addressed to the Clerk of Court of the Court of First Instance of Malolos, Bulacan." . . was received by this Office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15" (p. 66, C.A. rec.). On the merits of the dismissed appeal, petitioner stressed that the creation of a three-man committee to fix the just compensation of the expropriated lot was without legal basis, because Section 5, Rule 6 of the Rules of Court upon which the same was anchored had already been repealed by the provisions of Presidential Decree No. 76 which took effect on December 6, 1972 under which the court has no alternative but to base the just compensation of expropriated property upon the current and fair market value declared by the owner or administrator, or such market value as determined by the assessor, whichever is lower. On October 31, 1979, the lower court denied petitioners motion for reconsideration for lack of merit (pp. 36 -40, rec.; pp. 28-32, C.A. rec.), thus:jgc:chanrobles.com.ph "The grounds advanced by the plaintiff Republic of the Philippines have been fully taken into account by the Court in its order of August 13, 1979, particularly the late filing of the record on appeal. Plaintiffs counsel should not have assumed that the m otion for extension of the period for filing of the record on appeal would be granted. "The plaintiffs counsels belief that their May 17, 1979 motion would be granted cannot be the basis for the plaintiff to be absolved of the effect of late filing of the record on appeal, considering that the Court had liberally extended for five times, **, each for thirty (30) days, the filing of said record. This Court considers said extensions as sufficient time for the counsel for plaintiff to prepare its record on appeal. Plaintiffs counsel, with all the resources it has, to protect its clients interests, should have been vigilant enough not to assume and should not expect that their motion for extension would be granted. It is not correct therefore that only three days had elapsed after the reglementary period to perfect appeal because the reglementary period ended not on June 17, 1979, but on May 17, 1979, because the last motion for extension was not granted by the Court. "The Court deplores the insinuation of plaintiffs counsel that it took hook, line and sinker, defendants allegation about the fact of mailing. It has carefully gone over the record and found that the date of mailing of the motion for extension is May 21, 1979, as shown by the stamp Registered, Manila, Philippines, May 21, 1979 appearing on the covering envelope containing the motion for extension. Therefore, the explanation contained in Annex B of the motion for reconsideration to the effect that registered Letter No. 3273, addressed to the Clerk of Court, Court of First Instance of Malolos, Bulacan, was received by the Manila Post Office late Friday afternoon, May 18, 1979, but was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday), under the Manila-Malolos Bill No. 202, page 1, line 15, can not overturn the fact of date of actual mailing which is May 21, 1979, because it is of judicial knowledge that a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the post office. The letter Annex B of the motion therefore lacks sufficient weight and persuasiveness to prove the fact that the letter asking for another extension was actually filed on May 18, 1979, and not May 21, 1979. "Regarding the creation of a three-man committee which according to plaintiff the Court sorely lacked the prerogative to create pursuant to Sec. 5, Rule 67 of the Rules of Court because it has been superseded by the provisions of PD 76 which definitely fixed the guidelines for the determination of just compensation of private property acquired by the State for public use, the Court had to resort to this old method of determining fair market value, which is defined as:chanrob1es virtual 1aw library The "current and fair market value" shall be understood to mean the "price of which a willing seller would sell and a willin g buyer would buy neither being under abnormal pr essure. because, firstly; the plaintiff failed to show evidence thereof as declared by the owner or administrator of the property under the provisions of PD 76, or the valuation or assessment of the value as determined by the assessor, whichever is lower. Hence, for all intents and purposes, the findings of the three-man committee have become the basis of the valuation, Paragraph III of the complaint notwithstanding, because allegation in the complaint, unless proved, are not binding as evidence. "Presidential Decree No. 42, from its very caption, which reads:chanrob1es virtual 1aw library

PRESIDENTIAL DECREE NO. 42 AUTHORIZING THE PLAINTIFF IN EMINENT DOMAIN PROCEEDINGS TO TAKE POSSESSION OF THE PROPERTY INVOLVED UPON DEPOSITING THE ASSESSED VALUE FOR PURPOSES OF TAXATION

does not fix the value of the property to be expropriated, but rather for the purpose of taking possession of the property involved, the assessed value for purposes of taxation is required to be deposited in the Philippine National Bank or any of its branches or agencies. This is borne out by the first Whereas of the decree which finds the existing procedure for the exercise of the right of eminent domain not expeditious enough to enable the plaintiff to take or enter upon the possession of the real property involved, when needed for public purposes. The second Whereas states that the measure is in the national interest in order to effect the desired changes and reforms to create a new society and economic order for the benefit of the country and its people . "The body of the law does not specify the valuation of the property, but rather the method by which seizure of the property could be done immediately, and that is by the act of depositing with the Philippine National Bank, in its main office or any of its branches or agencies, an amount equivalent to assessed value of the property for purposes of taxation, to be held by said bank subject to the orders and final disposition of the Court. "Only in this respect are the provisions of Rule 67 of the Rules of Court and or any other existing law contrary to or inconsistent therewith repealed. If at all, the decree, PD 42, fixes only a provisional value of the property which does not necessarily represent the true and correct value of the land as defined in PD 76. It is only provisional or tentative to serve as the basis for the immediate occupancy of the property being expropriated by the condemn or. This is in line with the recent decision of the Honorable Supreme Court promulgated on October 18, 1979, in the case of the Municipality of Daet, Petitioner, v. Court of Appeals and Li Seng Giap & Co., Inc., Respondents, G.R. No. L-45861, which states in part:chanrob1es virtual 1aw library . . ., it can already be gleaned that said decree fix es only the provisional value of the property. As a provisional value, it does not necessarily represent the true and correct value of the land. The value is only "provisional" or "tentative" to serve as the basis for the immediate occupancy of the propert y being expropriated by the condemnor. ". . ." (pp. 28-32, rec.).

Dissatisfied with the aforesaid orders of the lower court, petitioner on December 3, 1979 filed with the respondent Court of Appeals a petition for certiorari, prohibition and mandamus with preliminary injunction in CA-G.R. No. 10081-Sp, entitled: Republic of the Philippines versus Court of First Instance of Bulacan, Branch VI, presided over by Hon. Roque Tamayo, Et Al., whereby it prayed that: "1) This petition be given due course; 2) A writ of preliminary injunction and/or temporary restraining order be issued ex-parte restraining respondent court from executing, enforcing and/or implementing its Order dated December 8, 1978, . . . and its orders dated August 13, 1979 and October 31, 1979 . . .; 3) After hearing on the merits, judgment be rendered: *a+ annulling and setting aside respondent courts Orders of August 13, 1979 . . .; *b+ Directing and compelling respondent c ourt to allow and approve petitioners record on appeal and to certify and elevate the same to this Honorable Court; [c] Declaring the writ of preliminary injunction and/or restraining order herein prayed for to be made permanent and perpetual" and for such other relief as the Court may deem just and equitable in the premises. On December 14, 1979, respondent Court of Appeals issued a temporary restraining order to maintain the status quo, and required private respondents to file their comment (pp. 67-68, C.A. rec.). On January 2, 1980, private respondents filed the required comment (pp. 69-91, C.A. rec.).

On April 29, 1980, respondent Court of Appeals dismissed petitioners action and set aside its December 14, 1979 restraining order. The respondent Court of Appeals ruled that "A review of the whole record convinces Us that the challenged orders are not a capricious and whimsical exercise of judgment as to constitute a grave abuse of discretion . . . ." (pp. 44-45, rec.). The Solicitor General received a copy of the aforesaid decision on May 19, 1980. On May 30, 1980, the Solicitor General sought a thirty-day extension from June 3, 1980 within which to file a motion for reconsideration (pp. 106-107, C.A. rec.). On June 20, 1980, the respondent Court of Appeals granted the extension sought (p. 108, C.A. rec.).cralawnad On June 23, 1980, the Solicitor General filed his motion for reconsideration on the ground that, "The Honorable Court of Appeals was misled by private respondents counsel in holding that petitioners motion for extension of time to file record on appeal dated May 17,1979 . . . was filed on May 21, 1979, not on May 18, 1979 (which was the last day within which to file petitioners re cord on appeal); hence, this Honorable Court was not correct in ARRIVING AT THE CONCLUSION THAT PETITIONERS AFORESAID MOTION FOR EXTENSION was filed beyond the reglementary period" (pp. 109-118, C.A. rec.). Petitioner also moved to set the case for oral argument (p. 119, C.A. rec.). Petitioner vehemently insisted as it did in the main action (pp. 10-12, C.A. rec.), that it is erroneous to conclude that its.

". . . .motion for extension dated May 17, 1979 . . . was filed on May 21, 1979 and not on May 18, 1979 which is the last day of the extended period fixed by respondent court for petitioner to file its record on appeal. It is submitted that the motion for extension dated May 17, 1979 .. was actually filed on May 18, 1979 as there is incontrovertible proof that the same was in fact mailed on May 18, 1979 via registered mail (Registry Letter 3273) at the Manila Central Office of the Bureau of Posts. A letter dated September 25, 1979 of Delfin Celis, postmaster of Central Post Office, Manila, to the Chief of the Records Section of the Office of the Solicitor General shows that envelope containing the May 17, 1979 motion was received by the Post Office of Manila on May 17, 1979. Said letter states:chanrob1es virtual 1aw library In compliance to your request in your letter dated September 20, 1979 in connection with registered letter No. 3273 addresse d to the Clerk of Court, Court of First Instance Malolos, Bulacan, please be informed that it was received by this Office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15. "Thus, it is conceded that the envelope containing the registered letter of petitioners motion for extension to file record on appeal dated May 17, 1979 has on its face the date May 21, 1979 stamped thereon . . . If the aforesaid proof of mailing presented by private respondent is taken into account solely without taking into consideration the letter of Postmaster Delfin Celis dated September 25, 1979 . . ., then it could be said that petitioners motion for extension to file record on appeal dated May 17, 1979 was filed out of time. However, the certification of the Postmaster stating that the letter was actually received in the Post Office on May 18, 1979 conclusively shows that such date is the date of mailing, and the date May 21, was thus wrongly stamped thereon by an employee of the Post Office. Petitioner should not be blamed for the mistake committed by the personnel of the Post Office of stamping May 21, 1979 on the envelope of sa id Registered Letter No. 3273. Petitioners counsel had nothing to do with the aforesaid mistake that had been committed by the personnel of the Post Office. "In resume, it can be said with certainty that the records of the Office of the Solicitor General and the Post Office of Manila clearly show that the petitioners motion for extension dated May 17, 1979 was seasonably filed on May 18, 1979 as the latter was actually the date of its mailing and therefore said date should be deemed as the actual date of its filing before respondent court. "At this juncture, it may be stated that undersigned counsel were constrained to seek extension to file record on appeal because of the pressure of work and their need to borrow the records of the case from the trial court. Thus, as early as January 9, 1979, they were borrowing the expediente of the case so as to enable them to prepare an accurate record on appeal. Petitioner in its motion and manifestation of January 9, 1979 stated why it wanted to borrow the expediente of the case at bar, as follows:chanrob1es virtual 1aw library 3. The records of the undersigned counsel may not be complete as it had authorized the Provincial Fiscal of Bulacan to appea r in the hearings before this Honorable Court, thus it is possible that the Office of the Solicitor General may not have been furnished copies of Orders of this Honorable Court, as well as pleadings that may have been furnished the Provincial Fiscal of Bulacan. 4. This being the case, undersigned counsel can not prepar e an accurate and concise record on appeal, hence it is necessary that the records of the case be lent to the undersigned counsel pursuant to Sec. 14, Rule 136 of the Revised Rules of Court (pp. 6-7, Motion for Reconsideration [in the CFI of Bulacan]; see pp. 52, 57-58, C.A. rec.). "On April 10, 1979, undersigned counsel reiterated their desire to borrow said expediente but it was not until May 3, 1979 that the expediente of the case consisting of 164 pages were received by the Docket Section of the Office of the Solicitor General. It was only on May 16, 1979 that said expediente were delivered to undersigned Solicitor, thus compelling him to prepare the May 17, 1979 motion. And for the same reasons, it was only on June 7, 1979 that the record on appeal was filed, which was well within the 30 days extension from May 18, 1979 prayed for in petitioners motion of May 17, 1979. ". . ." (pp. 109-113, C.A. rec.).

On July 14, 1980, respondent Court of Appeals resolved to require private respondents to comment on the motion for reconsideration within ten (10) days from receipt of the resolution (p. 121, C.A. rec.). Earlier, however, or on July 8, 1980, private respondents mailed their opposition to the motion for reconsideration and their waiver to appear for oral argument (pp. 122-123, C.A. rec.). Both were received by the Court of Appeals on July 14, 1980, the very day the resolution requiring private respondents to comment on the motion for reconsideration, was released by the Court of Appeals. In the petition before this Court, the Solicitor General laments the fact that no copies of the aforesaid pleadings of the private respondents were ever served on and received by him (p. 18, rec.). Indeed, said pleadings of the private respondents do not show nor indicate that copies thereof were served on the Solicitor General (pp. 121-123, C.A. rec.).

In

the

aforesaid

opposition

of

private

respondents,

they

claimed

that:jgc:chanrobles.com.ph

"The undersigned counsel merely stated that the date of filing the fifth motion for extension to file record on appeal by the office of the Solicitor General was on May 21, 1979, as shown on the envelope bearing the stamp of the Manila Post Office, which clearly reads May 21, 1979 and the undersigned counsel brought to the attent ion of the lower court that the date of filing of this fifth extension was the date shown when the mailing was made as stamped on the envelope. That there can be no other date than the date stamped on the envelope made by the Manila Post Office when the fifth request for extension of filing the record on appeal was mailed. This fact of the date of mailing, May 21, 1979, was stamped on the envelope. "The office of the Solicitor General further alleged:chanrob1es virtual 1aw library

If . . . taken into account solely without taking into consideration the letter of the Post Master Delfin Celis, dated September 25, 1979 . . ., then it could be said that petitioners motion for extension to file record on appeal, dated May 17, 1979, was fi led out of time. "From the above statement of the Office of the Solicitor General there can never be any abuse in the exercise of judgment as to constitute a grave abuse of discretion. The lower court chose to rely on the date stamped on the envelope by the Manila Post Office rather than considering as paramount a mere letter from the Manila Post Office employee, Delfin Celis. "x x x

"If we are to believe that the stamped date, May 21, 1979, was wrongly stamped by an employee of the Manila Post Office, then thousands of mails received and/or mailed on that date were all wrongly stamped. How can the lower court believe that the date May 21, 1979, was merely erroneously stamped on the envelope? The lower courts finding of facts on this regard, must also be sustained. "The other reason given by the Office of the Solicitor General was that they have asked for the complete record of the case but that it was only forwarded to their office sometime on May 3, 1979. "The record of the case cannot be easily forwarded to the Solicitor General because there was the case of motion for intervention filed in connection with the case. "The failure on the part of the court to immediately comply with the request of the office of the Solicitor General cannot be a justifying reason for failure to comply with the rules of court and of the order of filing the record on appeal within the reglementary period, or time given by the court. "The office of the Solicitor General gave the Provincial Fiscal of Bulacan the power to handle the case for (them) and the office of the Provincial Fiscal was furnished with all pleadings, orders and other papers of the case. The record therefore of the Office of the Provincial Fiscal can easily be available to them. Besides no less than five (5) extensions of time had been requested and the last one was not acted upon by the Court and yet the Office of the Solicitor General filed the Record on Appeal only on June 17, 1979 (should be June 7, 1979), which is far beyond the reglementary period which was May 17, 1979 (should be May 18, 1979). ". . ." (pp. 123-125, C.A. rec.).

On August 15, 1980, respondent Court of Appeals issued a resolution denying the motion for reconsideration, thus:jgc:chanrobles.com.ph "Acting on the Motion for Reconsideration dated June 23, 1980 filed by the Solicitor General and the opposition thereto filed on July 8, 1980 by the respondents and considering that the said motion does not cite new matters which have not been considered in the decision promulgated on April 29, 1980, the said motion is hereby denied. "Petitioners Motion to Set Case for Oral Argument dated June 23, 1980 is likewise DENIED. "cralaw virtua1aw library Aforesaid Hence, resolution was received by the this Solicitor General on August 20, 1980. recourse.

Petition was filed on October 24, 1980; two extensions of time of thirty (30) days each having been previously asked by and granted to petitioner Republic of the Philippines.

On October 29, 1980, WE resolved to require respondents to comment on the petition within ten (10) days from notice of the resolution and at the same time issued a temporary restraining order enjoining respondents from executing, enforcing and/or implementing the decision dated April 28,1980 issued in CA-G.R. No. SP-10081, entitled "Republic of the Philippines, Petitioner, versus Hon. Roque Tamayo, etc., Et Al., Respondents" of the Court of Appeals, and the Order dated December 8, 1978 issued in Civil Case No. 5257-M, entitled "Republic of the Philippines, Plaintiff, versus Turandot Aldaba, Et Al., Defendants" of the Court of First Instance of Bulacan, Branch VI, at Malolos, Bulacan (pp. 49-51, rec.). On November 14, 1980, private respondents filed their comment to the petition contending that no abuse of discretion or act in excess of jurisdiction exists as to require a review by this Honorable Court (pp. 52-64, rec.). On November 24,1980, WE resolved to give due course to the petition and to declare the case submitted for decision (p. 65, rec.). But on December 22, 1980, private respondents filed a motion, praying for the outright dismissal of the instant petition on the main ground that the decision of the respondent Court of Appeals sought to be reviewed has already become final and executory, hence, unappealable, because this petition was filed out of time as the petitioners motion for reconsideration in the Court of Appeals was pro forma (pp. 66-67, rec.). The main issue to be resolved in this case is whether or not respondent Court of Appeals itself committed a grave abuse of discretion in not finding that the respondent trial court committed a grave abuse of discretion in dismissing petitioners appeal.chanrobles virtual lawlibrary The questioned orders should be set aside.

I. It must be underscored that the basic provisions of the Rules of Court basis of the dismissal of the petitioners appeal b y the Court of First Instance of Bulacan as sustained by the respondent Court of Appeals are Section 13, Rule 41: Where the notice of appeal, appeal bond or record on appeal are not filed within the period of time herein provided, the appeal shall be dismissed; and Section 14, Rule 41: A motion to dismiss an appeal on any of the grounds mentioned in the preceding section may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court. The Court of First Instance of Bulacan dismissed herein petitioners appeal on the bases of the foregoing provisions upon its finding that the record on appeal of petitioner was filed out of time as it was filed only on June 7, 1979 or twenty (20) days after May 18, 1979, the last day of the appeal period as extended; petitioners fifth extension of time of thirty days from May 18, 1979, not having been favorably acted upon by the Court of First Instance of Bulacan upon its finding that the same was also filed late or three days after the last day of the extended appeal period. The implication of the questioned orders of the Court of First Instance is that since the fifth extension of time was filed out of time, no action may be taken thereon by it; hence, petitioner Republic had only up to May 18, 1979 within which to file the record on appeal. Consequently, the filing thereof only on June 7, 1979 was too late. The petitioner, however, herein contends as it did before the Court of First Instance of Bulacan and before the respondent Court of Appeals, that its fifth extension of time was actually filed on May 18, 1979, not on May 21, 1979 as found out by the Court of First Instance and Court of Appeals and in support thereof, pointed to the certification of the postmaster of the Central Office of the Bureau of Posts, dated September 25, 1979 (p. 47, rec.) to the effect that the said motion for extension of time as contained in registered mail No. 3273 addressed to the Clerk of Court of First Instance of Bulacan (Malolos)." . . was received by this office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19, to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15."cralaw virtua1aw library But the Court of First Instance of Bulacan opined that said certification cannot override the prevailing practice in post offices "that a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the office" of which it took judicial notice. WE entertain grave doubts that the aforesaid post office practice is a proper subject of judicial notice.chanrobles.com.ph : virtual law library Section 1 of Rule 129 on judicial notice provides that "The existence and territorial extent of states, their forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive, and judicial departments of the Philippines, the laws of

nature, the measure of time, the geographical divisions and political history of the world and all similar matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions, shall be judicially recognized by the court without the introduction of proof; but the court may receive evidence upon any of the subjects in this section stated, when it shall find it necessary for its own information, and may resort for its aid to appropriate books or documents or reference."cralaw virtua1aw library Undoubtedly, the post office practice of which the Court of First Instance took judicial notice is not covered by any of the specific instances cited above. Neither can it be classified under "matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions . . ." For a matter to be taken judicial notice of by the courts of law, it must be a subject of common and general knowledge. In other words, judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification or contention. The test is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof. The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons familiar with the particular matter in question (20 Am Jur 49-50; Martin, Rules of Court 37, Second Edition). Furthermore, a matter may be personally known to the judge and yet not be a matter of judicial knowledge and vice versa, a matter may not be actually known to an individual judge, and nevertheless be a proper subject of judicial cognizance.chanrobles virtual lawlibrary The post office practice herein involved is not tested by the aforestated considerations, a proper matter of judicial notice. Moreover, the certification issued by the very postmaster of the post office where the letter containing the questioned motion for extension of time was posted, is a very clear manifestation that the said post office practice is not of unquestionable demonstration. Indeed, the doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative (31 CJS 522; Martin, Rules of Court 38, Second Edition). It is therefore manifest from the foregoing that the Court of First Instance of Bulacan committed a palpable error amounting to a grave abuse of discretion in relying on the alleged post office practice aforementioned over the uncontroverted certification of the postmaster earlier referred to. That being so, the dismissal of petitioners appeal therefore lack s factual basis. It should have acted on petitioners fifth motion for extension of time which WE find to have been filed on time. The records reveal that a favorable action on the aforesaid fifth motion for extension of time is warranted by the following circumstances: (1) the record on appeal was filed by petitioner even before the lower court could consider the questioned motion for extension of time; and private respondents objected to the said motion only after petitioner had filed the record on appeal; (2) the order of the lower court granting the fourth extension of time did not contain any caveat that no further extension shall be allowed; (3) the fact that the CFI records of the case were sent to the Solicitor General only on May 3, 1979 and ostensibly handed to the Solicitor assigned to the case only on May 16,1979 or barely two (2) days before the expiration of the extended appeal period; and (4) pressure of work in the undermanned Office of the Solicitor General who is the counsel of the National Government and all other governmental agencies and instrumentalities; and (5) and the unconscionable amount of P450,000.00 for a parcel of 1.5 hectares situated in a barrio of Malolos, Bulacan, with only a provisional value of P7,200.00 obviously based upon its assessed value appearing on its tax declaration. No sugar, rice or coconut land of only 15,000 square meters could command such a fabulous price. WE therefore rule that the respondent Court of Appeals gravely abused its discretion in affirming the disputed orders of the Court of First Instance of Bulacan. II. But even assuming that the motion for extension to file record on appeal dated May 17, 1979 was filed not on May 18, 1979 but on May 21, 1979 as claimed by private respondents, which is a delay of only one (1) working day, May 19 and 20 being Saturday, and Sunday, respectively, that circumstance alone would not justify the outright dismissal of the appeal of petitioner Republic of the Philippines, especially so in the light of the undisputed fact that petitioner had already filed with the lower court the record on appeal at the time the questioned dismissal order was issued by the lower court. For, as ruled in one case,." . . the delay of four days in filing a notice of appeal and a motion for an extension of time to file a record on appeal can be excused on the basis of equity and considering that the record on appeal is now with the respondent judge" (Ramos v. Bagasao, Et Al., G.R. No 51552, February 28, 1980, Second Division; Italics supplied). Moreover, WE have already liberalized in a number of cases the jurisprudence on the matter of perfection of appeals. For one, in De las Alas v. Court of Appeals (83 SCRA 200-216 [1978]), WE ruled that:cralawnad ". . . litigation should, as much as possible, be decided on their merits and not on technicality, and under the circumstances obtaining in this case, WE said in the case of Gregorio v. Court of Appeals (L-43511, July 23, 1976, 72 SCRA 120, 126),

thus:chanrob1es

virtual

1aw

library

. . . Dismissal of appeals purely on technical grounds is frowned upon where the policy of the courts is to encourage hearing of appeals on their merits. The rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override, substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. x x x

III. Moreover, a special circumstance which is the subject of one of the main issues raised by petitioner in its appeal warrants US to exercise once more OUR exclusive prerogative to suspend OUR own rules or to exempt a particular case from its operation as in the recent case of Republic of the Philippines v. Court of Appeals, Et. Al. (83 SCRA 459, 478-480 [1978]), thus: ". . .The Rules have been drafted with the primary objective of enhancing fair trials and expediting justice. As a corollary, if their application and operation tend to subvert and defeat instead of promote and enhance it, their suspension is justified. In the words of Justice Antonio P. Barredo in his concurring opinion in Estrada v. Sto. Domingo, (T)his Court, through the revered and emin ent Mr. Justice Abad Santos, found occasion in the case of C. Viuda de Ordoverza v. Raymundo, to lay down for recognition in holding that " it is always in the power of the court (Supreme Court) to suspend its own rules or to except a particular case from its operation, whenever the purposes of justice require it . . . ." ( Emphasis ours). As emphasized by the Solicitor General, if the questioned orders are not annulled and set aside, its enforcement and implementation will result to the prejudice of, and irreparable injury to, public interest." This is so because the Government would lose its opportunity to assail the order of the lower court dated December 8, 1978, the dispositive portion of which reads, as follows:jgc:chanrobles.com.ph "x x x

The joint report filed by the three-man committee charged with the determination of the just compensation of the property herein sought to be condemned is hereby approved, such that the just compensation of the land described in Paragraph II of th e Complaint is fixed at Thirty Pesos (P30.00) per square meter. The defendant may now withdraw from the Philippine National Bank, Malolos Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways under Account No. 35109, said sum to be part of the total amount of 450,000.00 (15,000 square meters at P30.00 per square meter), which the Department of Public Highways, Third Regional Equipment Services, Malolos, Bulacan, shall, and is hereby ordered to pay to the herein defendants as just compensation for the subject property. SO ORDERED (pp. 3-4, Order dated December 8, 1978).

"It must be stressed at this stage that the Government would lose no less than P425,000.00 if the lower courts order of Dece mber 8, 1978 is not scrutinized on appeal. It must be stated that the lower court was without jurisdiction to create a three-man committee because Sec. 5, Rule 67 of the Revised Rules of Court was repealed by P.D. 76 which took effect on December 6, 1972, the salient features of which read, as follows:chanrob1es virtual 1aw library The "current and fair market value" shall be understood to mean the "price of which a willing seller would sell and a willin g buyer would buy neither being under abnormal pressure. For purposes of just compensation in cases of private property acquired by the government for public use, the basis shall be the current and fair market value declared by the owner or administrator or such market value as determined by the assessor, whichever is lower. "Thus, from December 6, 1972, the effectivity date of PD 76, the just compensation to be paid for private property acquired by the government for public use is the current and fair market value declared by the owner or administrator or such market value as determined by the Assessor whichever is lower. Pursuant to said Decree, the governments obligation to private respondent would only be P24,376.00. The lower court thus had no jurisdiction to fix an amount of just compensation higher than P24,376.00.

It follows therefore that the joint report submitted by the three-man committee created by the lower court could not serve as a legal basis for the determination of the just compensation of the property sought to be condemned . ". . ." (pp. 19-21, rec.).

IV. With respect to the motion to dismiss filed on December 22, 1980 by private respondents, WE find no merit therein. The contention of private respondents that the June 23, 1980 motion for reconsideration of petitioner with the Court of Appeals was pro forma is belied by the results obtained in this petition before US. WHEREFORE, PETITION IS HEREBY GRANTED; THE DECISION DATED APRIL 29, 1980 AND THE RESOLUTION DATED AUGUST 15, 1980 OF THE RESPONDENT COURT OF APPEALS ARE HEREBY ANNULLED AND SET ASIDE; AND THE RESPONDENT COURT OF FIRST INSTANCE OF BULACAN IS HEREBY DIRECTED TO APPROVE PETITIONERS RECORD ON APPEAL AND TO ELEVATE THE SAME TO THE HONORABLE COURT OF APPEALS. NO COST. SO Teehankee Melencio-Herrera, J., (Chairman), concurs Fernandez in and Guerrero, JJ., the ORDERED. concur. result.

SECOND [G.R. No. 104235. November 18,

DIVISION 1993.]

SPOUSES CESAR & SUTHIRA ZALAMEA AND LIANA ZALAMEA, Petitioners, v. HONORABLE COURT OF APPEALS AND TRANSWORLD AIRLINES, INC., Respondents. Sycip, Salazar, Hernandez, Gatmaitan, for Petitioners.

Quisumbing, Torres & Evangelista for private-respondent.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FOREIGN LAWS, HOW PROVED. That there was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board their flight for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedly authorizing overbooking has never been proved. Foreign laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact, they must be alleged and proved. Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 2. ID.; ID.; ID.; U.S. LAW OR REGULATION AUTHORIZING OVERBOOKING, NOT PROVED BY MERE TESTIMONY OF RESPONDENTS AIRLINE CUSTOMER SERVICE AGENT. Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent, in her deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics Board allows overbooking. Aside from said statement, no official publication of said code was presented as evidence. Thus, respondent courts finding that overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact. 3. CIVIL LAW; APPLICATION OF LAWS; CONTRACT GOVERNED BY LAWS OF PLACE WHERE EXECUTED; CASE AT BAR. Even if the claimed U.S. Code of Federal Regulations does exist, the same is not applicable to the case at bar in accordance with the principle of lex loci contractus which requires that the law of the place where the airline ticket was issued should be applied by the court where the passengers are residents and nationals of the forum and the ticket is issued in such State by the defendant airline. Since the tickets were sold and issued in the Philippines, the applicable law in this case would be Philippine law. 4. ID.; DAMAGES; OVERBOOKING AMOUNTS TO BAD FAITH ENTITLING PASSENGERS TO AWARD OF MORAL DAMAGES. Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the passengers concerned to an award of moral damages. (Alitalia Airways v. Court of Appeals, G.R. No. 77011, 187 SCRA 763 [1990]; Korean Airlines Co., Ltd. v. Court of Appeals, G.R. No. 61418, 154 SCRA 211 [1987]) 5. ID.; ID.; BREACH OF CONTRACT OF CARRIAGE AMOUNTS TO BAD FAITH. In fact, existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad faith. (Pan American World Airways, Inc. v. Intermediate Appellate Court, G.R. No. 74442, 153 SCRA 521 [1987]) A contract to transport passengers is quite different in kind and degree from any other contractual relation. (Zulueta v. Pan American World Airways, Inc., G.R. No. L-28589, 43 SCRA 397 [1972] 6. ID.; ID.; NON-INCORPORATION OF STIPULATIONS ON OVERBOOKING AND IN NOT INFORMING PASSENGERS OF ITS POLICY GIVING LESS PRIORITY TO DISCOUNTED TICKET, CONSTITUTE BAD FAITH; PASSENGERS ENTITLED TO BOTH MORAL AND EXEMPLARY DAMAGES; CASE AT BAR. Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not informing its passengers beforehand that it could breach the contract of carriage even if they have confirmed tickets if there was overbooking. Respondent TWA should have incorporated stipulations on overbooking on the tickets issued or to properly inform its passengers about these policies so that the latter would be prepared for such eventuality or would have the choice to ride with another airline. Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving less priority to discounted tickets. It is respondent TWAs position that the practice of overbooking and the airline system of boarding priorities are reasonable policies, which when implemented do not amount to bad faith. But the issue raised in this case is not the reasonableness of said policies but whether or not said policies were incorporated or deemed written on petitioners contracts of carriage. Respondent TWA failed to show that there are provisions to that effect. Neither did it pr esent

any argument of substance to show that petitioners were duly apprised of the overbooked condition of the flight or that there is a hierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right to rely upon the assurance of respondent TWA, thru its agent in Manila, then in New York, that their tickets represented confirmed seats without any qualification. The failure of respondent TWA to so inform them when it could easily have done so thereby enabling respondent to hold on to them as passengers up to the last minute amounts to bad faith. Evidently, respondent TWA placed its self-interest over the rights of petitioners under their contracts of carriage. Such conscious disregard of petitioners rights makes respondent TWA liable for moral damages. To deter breach of contracts by respondent TWA in similar fashion in the future, we adjudge respondent TWA liable for exemplary damages, as well. However, the award for moral and exemplary damages by the trial court is excessive in the light of the fact that only Suthira and Liana Zalamea were actually "bumped off." An award of P50,000.00 moral damages and another P50,000.00 exemplary damages would suffice under the circumstances obtaining in the instant case. 7. ID.; ID.; PASSENGER ENTITLED TO REIMBURSEMENT FOR COST OF TICKETS BOUGHT FOR ANOTHER FLIGHT ON ANOTHER AIRLINE; CASE AT BAR. The respondent court erred, however, in not ordering the refund of the cost of the American Airlines tickets purchased and used by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana were constrained to take the American Airlines flight to Los Angeles not because they "opted not to use their TWA tickets on another TWA flight" but because respondent TWA could not accommodate them either on the next TWA flight which was also fully booked. The purchase of the American Airlines tickets by petitioners Suthira and Liana was the consequence of respondent TWA s unjustifiable breach of its contracts of carriage with petitioners. In accordance with Article 2201, New Civil Code, respondent TWA should, therefore, be responsible for all damages which may be reasonably attributed to the non-performance of its obligation. In the previously cited case of Alitalia Airways v. Court of Appeals, this Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to buy for a flight on another airline. Thus, instead of simply being refunded for the cost of the unused TWA tickets, petitioners should be awarded the actual cost of their flight from New York to Los Angeles. 8. ID.; ID.; ATTORNEYS FEES; RECOVERABLE WHERE A PARTY WAS COMPELLED TO LITIGATE TO PROTECT HIS RIGHTS. The award to petitioners of attorneys fees is also justified under Article 2208(2) of the Civil Code which allows recovery when the defendants act or omission has compelled plaintiff to litigate or to incur expenses to protect his interest.

DECISION

NOCON, J.:

Disgruntled over TransWorld Airlines, Inc.s refusal to accommodate them in TWA Flight 007 departing from New York to Los Angeles on June 6, 1984 despite possession of confirmed tickets, petitioners filed an action for damages before the Regional Trial Court of Makati, Metro Manila, Branch 145. Advocating petitioners position, the trial court categorically ruled that respondent TransWorld Airlines (TWA) breached its contract of carriage with petitioners and that said breach was "characterized by bad faith." On appeal, however, the appellate court found that while there was a breach of contract on respondent TWAs part, there was neither fraud nor bad faith because under the Code of Federal Regulations by the Civil Aeronautics Board of the United States of America it is allowed to overbook flights.chanrobles law library : red The factual backdrop of the case is as follows:chanrob1es virtual 1aw library

Petitioners-spouses Cesar C. Zalamea and Suthira Zalamea, and their daughter, Liana Zalamea, purchased three (3) airline tickets from the Manila agent of respondent TransWorld Airlines, Inc. for a flight from New York to Los Angeles on June 6, 1984. The tickets of petitioners-spouses were purchased at a discount of 75% while that of their daughter was a full fare ticket. All three tickets represented confirmed reservations. While in New York, on June 4, 1984, petitioners received notice of the reconfirmation of their reservations for said flight. On the appointed date, however, petitioners checked in at 10:00 a.m., an hour earlier than the scheduled flight at 11:00 a.m. but were placed on the wait-list because the number of passengers who had checked in before them had already taken all the seats available on the flight. Liana Zalamea appeared as No. 13 on the wait-list while the two other Zalameas were listed as "No. 34, showing a party of two." Out of the 42 names on the wait-list, the first 22 names were eventually allowed to board the flight to Los Angeles, including petitioner Cesar Zalamea. The two others, on the other hand, at No. 34, being ranked lower than 22, were not able to fly. As it were, those holding full-fare tickets were given first priority among the wait-listed passengers. Mr. Zalamea, who was holding the full-fare ticket of his daughter, was allowed to board the plane; while his wife and daughter, who presented the discounted tickets were denied boarding. According to Mr. Zalamea, it was only later when he discovered that he was holding his daughters full-fare ticket.chanrobles law library

Even in the next TWA flight to Los Angeles Mrs. Zalamea and her daughter, could not be accommodated because it was also fully booked. Thus, they were constrained to book in another flight and purchased two tickets from American Airlines at a cost of Nine Hundred Eighteen ($918.00) Dollars. Upon their arrival in the Philippines, petitioners filed an action for damages based on breach of contract of air carriage before the Regional Trial Court of Makati, Metro Manila, Branch 145. As aforesaid, the lower court ruled in favor of petitioners in its decision 1 dated January 9, 1989 the dispositive portion of which states as follows:jgc:chanrobles.com.ph "WHEREFORE, judgment is hereby rendered ordering the defendant to pay plaintiffs the following amounts:jgc:chanrobles.com.ph "(1) US $918.00, or its peso equivalent at the time of payment, representing the price of the tickets bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from New York City; "(2) US $159.49, or its peso equivalent at the time of payment, representing the price of Suthira Zalameas ticket for TWA Flight 007;chanrobles virtual lawlibrary "(3) Eight Thousand Nine Hundred Thirty-four Pesos and Fifty Centavos (P8,934.50), Philippine Currency, representing the price of Liana Zalameas ticket for TWA Flight 007; "(4) Two Hundred Fifty Thousand Pesos (250,000.00), Philippine Currency, as moral damages for all the plaintiffs; "(5) "(6) "SO One Hundred Thousand The Pesos (P100,000.00), Philippine costs ORDERED." Currency, as and of for attorneys fees; and suit. 2

On appeal, the respondent Court of Appeals held that moral damages are recoverable in a damage suit predicated upon a breach of contract of carriage only where there is fraud or bad faith. Since it is a matter of record that overbooking of flights is a common and accepted practice of airlines in the United States and is specifically allowed under the Code of Federal Regulations by the Civil Aeronautics Board, no fraud nor bad faith could be imputed on respondent TransWorld Airlines. Moreover, while respondent TWA was remiss in not informing petitioners that the flight was overbooked and that even a person with a confirmed reservation may be denied accommodation on an overbooked flight, nevertheless it ruled that such omission or negligence cannot under the circumstances be considered to be so gross as to amount to bad faith. Finally, it also held that there was no bad faith in placing petitioners in the wait-list along with forty-eight (48) other passengers where full-fare first class tickets were given priority over discounted tickets.chanrobles virtual lawlibrary The dispositive portion of the decision of respondent Court of Appeals 3 dated October 25, 1991 states as follows:red:chanrobles.com.ph "WHEREFORE, in view of all the foregoing, the decision under review is hereby MODIFIED in that the award of moral and exemplary damages to the plaintiffs is eliminated, and the defendant-appellant is hereby ordered to pay the plaintiffs the following amounts:jgc:chanrobles.com.ph "(1) US$159.49, or its peso equivalent at the time of payment, representing the price of Suthira Zalameas ticket for TWA Fli ght 007; "(2) US$159.49, or its peso equivalent at the time of payment, representing the price of Cesar Zalameas ticket for TWA Flight 007; "(3) "(4) "SO P50,000.00 The as and costs ORDERED." for of attorneys fees. suit. 4

Not satisfied with the decision, petitioners raised the case on petition for review on certiorari and alleged the following errors committed by the respondent Court of Appeals, to wit:chanrobles virtual lawlibrary I.

". . . IN HOLDING THAT THERE WAS NO FRAUD OR BAD FAITH ON THE PART OF RESPONDENT TWA BECAUSE IT HAS A RIGHT TO OVERBOOK FLIGHTS. II.

". . . IN ELIMINATING THE AWARD OF EXEMPLARY DAMAGES. III.

". . . IN NOT ORDERING THE REFUND OF LIANA ZALAMEAS TWA TICKET AND PAYMENT FOR THE AMERICAN AIRLINES TICKETS." 5 That there was fraud or bad faith on the part of respondent airline when it did not allow petitioners to board their flight for Los Angeles in spite of confirmed tickets cannot be disputed. The U.S. law or regulation allegedly authorizing overbooking has never been proved. Foreign laws do not prove themselves nor can the courts take judicial notice of them. Like any other fact, they must be alleged and proved. 6 Written law may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has custody. The certificate may be made by a secretary of an embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. 7 Respondent TWA relied solely on the statement of Ms. Gwendolyn Lather, its customer service agent, in her deposition dated January 27, 1986 that the Code of Federal Regulations of the Civil Aeronautics Board allows overbooking. Aside from said statement, no official publication of said code was presented as evidence. Thus, respondent courts finding that overbooking is specifically allowed by the US Code of Federal Regulations has no basis in fact.chanrobles virtual lawlibrary Even if the claimed U.S. Code of Federal Regulations does exist, the same is not applicable to the case at bar in accordance with the principle of lex loci contractus which requires that the law of the place where the airline ticket was issued should be applied by the court where the passengers are residents and nationals of the forum and the ticket is issued in such State by the defendant airline. 8 Since the tickets were sold and issued in the Philippines, the applicable law in this case would be Philippine law. Existing jurisprudence explicitly states that overbooking amounts to bad faith, entitling the passengers concerned to an award of moral damages. In Alitalia Airways v. Court of Appeals, 9 where passengers with confirmed bookings were refused carriage on the last minute, this Court held that when an airline issues a ticket to a passenger confirmed on a particular flight, on a certain date, a contract of carriage arises, and the passenger has every right to expect that he would fly on that flight and on that date. If he does not, then the carrier opens itself to a suit for breach of contract of carriage. Where an airline had deliberately overbooked, it took the risk of having to deprive some passengers of their seats in case all of them would show up for check in. For the indignity and inconvenience of being refused a confirmed seat on the last minute, said passenger is entitled to an award of moral damages. Similarly, in Korean Airlines Co., Ltd. v. Court of Appeals, 10 where private respondent was not allowed to board the plane because her seat had already been given to another passenger even before the allowable period for passengers to check in had lapsed despite the fact that she had a confirmed ticket and she had arrived on time, this Court held that petitioner airline acted in bad faith in violating private respondents rights under their contract of carriage and is therefore liable for the injuries she has sustained as a result.chanroblesvirtualawlibrary In fact, existing jurisprudence abounds with rulings where the breach of contract of carriage amounts to bad faith. In Pan American World Airways, Inc. v. Intermediate Appellate Court, 11 where a would-be passenger had the necessary ticket, baggage claim and clearance from immigration all clearly and unmistakably showing that she was indeed a confirmed passenger and that she was, in fact, included in the passenger manifest of said flight, and yet was denied accommodation in said flight, this Court did not hesitate to affirm the lower courts finding awarding her damages. A contract to transport passengers is quite different in kind and degree from any other contractual relation. So ruled this Court in

Zulueta v. Pan American World Airways, Inc. 12 This is so, for a contract of carriage generates a relation attended with public duty a duty to provide public service and convenience to its passengers which must be paramount to self-interest or enrichment. Thus, it was also held that the switch of planes from Lockheed 1011 to a smaller Boeing 707 because there were only 138 confirmed economy class passengers who could very well be accommodated in the smaller plane, thereby sacrificing the comfort of its first class passengers for the sake of economy, amounts to bad faith. Such inattention and lack of care for the interest of its passengers who are entitled to its utmost consideration entitles the passenger to an award of moral damages. 13 Even on the assumption that overbooking is allowed, respondent TWA is still guilty of bad faith in not informing its passengers beforehand that it could breach the contract of carriage even if they have confirmed tickets if there was overbooking. Respondent TWA should have incorporated stipulations on overbooking on the tickets issued or to properly inform its passengers about these policies so that the latter would be prepared for such eventuality or would have the choice to ride with another airline.chanrobles.com:cralaw:red Respondent TWA contends that Exhibit I, the detached flight coupon upon which were written the name of the passenger and the points of origin and destination, contained such a notice. An examination of Exhibit I does not bear this out. At any rate, said exhibit was not offered for the purpose of showing the existence of a notice of overbooking but to show that Exhibit I was used for Flight 007 in first class of June 11, 1984 from New York to Los Angeles. Moreover, respondent TWA was also guilty of not informing its passengers of its alleged policy of giving less priority to discounted tickets. While the petitioners had checked in at the same time, and held confirmed tickets, yet, only one of them was allowed to board the plane ten minutes before departure time because the full-fare ticket he was holding was given priority over discounted tickets. The other two petitioners were left behind. It is respondent TWAs position that the practice of overbooking and the airline system of boarding priorities are reasonable policies, which when implemented do not amount to bad faith. But the issue raised in this case is not the reasonableness of said policies but whether or not said policies were incorporated or deemed written on petitioners contracts of carriage. Responde nt TWA failed to show that there are provisions to that effect. Neither did it present any argument of substance to show that petitioners were duly apprised of the overbooked condition of the flight or that there is a hierarchy of boarding priorities in booking passengers. It is evident that petitioners had the right to rely upon the assurance of respondent TWA, thru its agent in Manila, then in New York, that their tickets represented confirmed seats without any qualification. The failure of respondent TWA to so inform them when it could easily have done so thereby enabling respondent to hold on to them as passengers up to the last minute amounts to bad faith. Evidently, respondent TWA placed its self-interest over the rights of petitioners under their contracts of carriage. Such conscious disregard of petitioners rights makes respondent TWA liable for moral damages. To deter breach of contracts by respondent TWA in similar fashion in the future, we adjudge respondent TWA liable for exemplary damages, as well.cralawnad Petitioners also assail the respondent courts decision not to require the refund of Liana Zalameas ticket because the ticket was used by her father. On this score, we uphold the respondent court. Petitioners had not shown with certainty that the act of respondent TWA in allowing Mr. Zalamea to use the ticket of her daughter was due to inadvertence or deliberate act. Petitioners had also failed to establish that they did not accede to said arrangement. The logical conclusion, therefore, is that both petitioners and respondent TWA agreed, albeit impliedly, to the course of action taken. The respondent court erred, however, in not ordering the refund of the cost of the American Airlines tickets purchased and used by petitioners Suthira and Liana. The evidence shows that petitioners Suthira and Liana were constrained to take the American Airlines flight to Los Angeles not because they "opted not to use their TWA tickets on another TWA flight" but because respondent TWA could not accommodate them either on the next TWA flight which was also fully booked. 14 The purchase of the American Airlines tickets by petitioners Suthira and Liana was the consequence of respondent TWAs unjustifiable breach of its contrac ts of carriage with petitioners. In accordance with Article 2201, New Civil Code, respondent TWA should, therefore, be responsible for all damages which may be reasonably attributed to the non-performance of its obligation. In the previously cited case of Alitalia Airways v. Court of Appeals, 15 this Court explicitly held that a passenger is entitled to be reimbursed for the cost of the tickets he had to buy for a flight on another airline. Thus, instead of simply being refunded for the cost of the unused TWA tickets, petitioners should be awarded the actual cost of their flight from New York to Los Angeles. On this score, we differ from the trial courts ruling which ordered not only the reimbursement of the American Airlines tickets but also the refund of the unused TW A tickets. To require both prestations would have enabled petitioners to fly from New York to Los Angeles without any fare being paid.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph The award to petitioners of attorneys fees is also justified under Article 2208(2) of the Civil Code which allows recovery w hen the defendants act or omission has compelled plaintiff to litigate or to incur expenses to protect his interest. However, the award for moral and exemplary damages by the trial court is excessive in the light of the fact that only Suthira and Liana Zalamea were

actually "bumped off." An award of P50,000.00 moral damages and another P50,000.00 exemplary damages would suffice under the circumstances obtaining in the instant case. WHEREFORE, the petition is hereby GRANTED and the decision of the respondent Court of Appeals is hereby MODIFIED to the extent of adjudging respondent TransWorld Airlines to pay damages to petitioners in the following amounts, to wit:chanrob1es virtual 1aw library (1) US$918.00 or its peso equivalent at the time of payment representing the price of the tickets bought by Suthira and Liana Zalamea from American Airlines, to enable them to fly to Los Angeles from New York City; (2) (3) (4) (5) Costs P50,000.00 P50,000.00 P50,000.00 of as suit.chanrobles as attorneys virtualawlibrary as moral exemplary fees; damages; damages; and

chanrobles.com:chanrobles.com.ph

SO ORDERED.

G.R. No. 112573 February 9, 1995 NORTHWEST ORIENT vs. COURT OF APPEALS and C.F. SHARP & COMPANY INC., respondents. AIRLINES, INC. petitioner,

PADILLA, JR., J.: This petition for review on certiorari seeks to set aside the decision of the Court of Appeals affirming the dismissal of the petitioner's complaint to enforce the judgment of a Japanese court. The principal issue here is whether a Japanese court can acquire jurisdiction over a Philippine corporation doing business in Japan by serving summons through diplomatic channels on the Philippine corporation at its principal office in Manila after prior attempts to serve summons in Japan had failed. Petitioner Northwest Orient Airlines, Inc. (hereinafter NORTHWEST), a corporation organized under the laws of the State of Minnesota, U.S.A., sought to enforce in Civil Case No. 83-17637 of the Regional Trial Court (RTC), Branch 54, Manila, a judgment rendered in its favor by a Japanese court against private respondent C.F. Sharp & Company, Inc., (hereinafter SHARP), a corporation incorporated under Philippine laws. As found by the Court of Appeals in the challenged decision of 10 November 1993, the following are the factual and procedural antecedents of this controversy: On May 9, 1974, plaintiff Northwest Airlines and defendant C.F. Sharp & Company, through its Japan branch, entered into an International Passenger Sales Agency Agreement, whereby the former authorized the latter to sell its air transportation tickets. Unable to remit the proceeds of the ticket sales made by defendant on behalf of the plaintiff under the said agreement, plaintiff on March 25, 1980 sued defendant in Tokyo, Japan, for collection of the unremitted proceeds of the ticket sales, with claim for damages. On April 11, 1980, a writ of summons was issued by the 36th Civil Department, Tokyo District Court of Japan against defendant at its office at the Taiheiyo Building, 3rd floor, 132, Yamashita-cho, Naka-ku, Yokohoma, Kanagawa Prefecture. The attempt to serve the summons was unsuccessful because the bailiff was advised by a person in the office that Mr. Dinozo, the person believed to be authorized to receive court processes was in Manila and would be back on April 24, 1980. On April 24, 1980, bailiff returned to the defendant's office to serve the summons. Mr. Dinozo refused to accept the same claiming that he was no longer an employee of the defendant. After the two attempts of service were unsuccessful, the judge of the Tokyo District Court decided to have the complaint and the writs of summons served at the head office of the defendant in Manila. On July 11, 1980, the Director of the Tokyo District Court requested the Supreme Court of Japan to serve the summons through diplomatic channels upon the defendant's head office in Manila. On August 28, 1980, defendant received from Deputy Sheriff Rolando Balingit the writ of summons (p. 276, Records). Despite receipt of the same, defendant failed to appear at the scheduled hearing. Thus, the Tokyo Court proceeded to hear the plaintiff's complaint and on [January 29, 1981], rendered judgment ordering the defendant to pay the plaintiff the sum of 83,158,195 Yen and damages for delay at the rate of 6% per annum from August 28, 1980 up to and until payment is completed (pp. 12-14, Records). On March 24, 1981, defendant received from Deputy Sheriff Balingit copy of the judgment. Defendant not having appealed the judgment, the same became final and executory. Plaintiff was unable to execute the decision in Japan, hence, on May 20, 1983, a suit for enforcement of the 2 judgment was filed by plaintiff before the Regional Trial Court of Manila Branch 54. On July 16, 1983, defendant filed its answer averring that the judgment of the Japanese Court sought to be enforced is null and void and unenforceable in this jurisdiction having been rendered without due and proper
1

notice to the defendant and/or with collusion or fraud and/or upon a clear mistake of law and fact (pp. 41-45, Rec.). Unable to settle the case amicably, the case was tried on the merits. After the plaintiff rested its case, defendant on April 21, 1989, filed a Motion for Judgment on a Demurrer to Evidence based on two grounds: (1) the foreign judgment sought to be enforced is null and void for want of jurisdiction and (2) the said judgment is contrary to Philippine law and public policy and rendered without due process of law. Plaintiff filed its opposition after which the court a quo rendered the now assailed decision dated June 21, 1989 granting the demurrer motion and dismissing the complaint (Decision, pp. 376-378, Records). In granting the demurrer motion, the trial court held that: The foreign judgment in the Japanese Court sought in this action is null and void for want of jurisdiction over the person of the defendant considering that this is an action in personam; the Japanese Court did not acquire jurisdiction over the person of the defendant because jurisprudence requires that the defendant be served with summons in Japan in order for the Japanese Court to acquire jurisdiction over it, the process of the Court in Japan sent to the Philippines which is outside Japanese jurisdiction cannot confer jurisdiction over the defendant in the case before the Japanese Court of the case at bar. Boudard versus Tait 67 Phil. 170. The plaintiff contends that the Japanese Court acquired jurisdiction because the defendant is a resident of Japan, having four (4) branches doing business therein and in fact had a permit from the Japanese government to conduct business in Japan (citing the exhibits presented by the plaintiff); if this is so then service of summons should have been made upon the defendant in Japan in any of these alleged four branches; as admitted by the plaintiff the service of the summons issued by the Japanese Court was made in the Philippines thru a Philippine Sheriff. This Court agrees that if the defendant in a foreign court is a resident in the court of that foreign court such court could acquire jurisdiction over the person of the defendant but it must be served upon the defendant in the territorial jurisdiction of the foreign court. Such is not the case here because the defendant was served with summons in the Philippines and not in Japan. Unable to accept the said decision, plaintiff on July 11, 1989 moved for reconsideration of the decision, filing at the same time a conditional Notice of Appeal, asking the court to treat the said notice of appeal "as in effect after and upon issuance of the court's denial of the motion for reconsideration." Defendant opposed the motion for reconsideration to which a Reply dated August 28, 1989 was filed by the plaintiff. On October 16, 1989, the lower court disregarded the Motion for Reconsideration and gave due course to the 3 plaintiff's Notice of Appeal. In its decision, the Court of Appeals sustained the trial court. It agreed with the latter in its reliance upon Boudard 4 vs. Tait wherein it was held that "the process of the court has no extraterritorial effect and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state." To support its position, the Court of Appeals further stated: In an action strictly in personam, such as the instant case, personal service of summons within the forum is required for the court to acquire jurisdiction over the defendant (Magdalena Estate Inc. vs. Nieto, 125 SCRA 230). To confer jurisdiction on the court, personal or substituted service of summons on the defendant not extraterritorial service is necessary (Dial Corp vs. Soriano, 161 SCRA 739). But while plaintiff-appellant concedes that the collection suit filed is an action in personam, it is its theory that a distinction must be made between an action in personam against a resident defendant and an action in personam against a non-resident defendant. Jurisdiction is acquired over a non-resident defendant only if he is served personally within the jurisdiction of the court and over a resident defendant if by personal, substituted or constructive service conformably to statutory authorization. Plaintiff-appellant argues that since the defendantappellee maintains branches in Japan it is considered a resident defendant. Corollarily, personal, substituted or constructive service of summons when made in compliance with the procedural rules is sufficient to give the court jurisdiction to render judgment in personam.

Such an argument does not persuade. It is a general rule that processes of the court cannot lawfully be served outside the territorial limits of the jurisdiction of the court from which it issues (Carter vs. Carter; 41 S.E. 2d 532, 201) and this is regardless of the residence or citizenship of the party thus served (Iowa-Rahr vs. Rahr, 129 NW 494, 150 Iowa 511, 35 LRC, NS, 292, Am. Case 1912 D680). There must be actual service within the proper territorial limits on defendant or someone authorized to accept service for him. Thus, a defendant, whether a resident or not in the forum where the action is filed, must be served with summons within that forum. But even assuming a distinction between a resident defendant and non-resident defendant were to be adopted, such distinction applies only to natural persons and not in the corporations. This finds support in the concept that "a corporation has no home or residence in the sense in which those terms are applied to natural persons" (Claude Neon Lights vs. Phil. Advertising Corp., 57 Phil. 607). Thus, as cited by the defendant-appellee in its brief: Residence is said to be an attribute of a natural person, and can be predicated on an artificial being only by more or less imperfect analogy. Strictly speaking, therefore, a corporation can have no local residence or habitation. It has been said that a corporation is a mere ideal existence, subsisting only in contemplation of law an invisible being which can have, in fact, no locality and can occupy no space, and therefore cannot have a dwelling place. (18 Am. Jur. 2d, p. 693 citing Kimmerle v. Topeka, 88 370, 128 p. 367; Wood v. Hartfold F. Ins. Co., 13 Conn 202) Jurisprudence so holds that the foreign or domestic character of a corporation is to be determined by the place of its origin where its charter was granted and not by the location of its business activities (Jennings v. Idaho Rail Light & P. Co., 26 Idaho 703, 146 p. 101), A corporation is a "resident" and an inhabitant of the state in which it is incorporated and no other (36 Am. Jur. 2d, p. 49). Defendant-appellee is a Philippine Corporation duly organized under the Philippine laws. Clearly, its residence is the Philippines, the place of its incorporation, and not Japan. While defendant-appellee maintains branches in Japan, this will not make it a resident of Japan. A corporation does not become a resident of another by engaging in business there even though licensed by that state and in terms given all the rights and privileges of a domestic corporation (Galveston H. & S.A.R. Co. vs. Gonzales, 151 US 496, 38 L ed. 248, 4 S Ct. 401). On this premise, defendant appellee is a non-resident corporation. As such, court processes must be served upon it at a place within the state in which the action is brought and not elsewhere (St. Clair vs. Cox, 106 US 350, 5 27 L ed. 222, 1 S. Ct. 354). It then concluded that the service of summons effected in Manila or beyond the territorial boundaries of Japan was null and did not confer jurisdiction upon the Tokyo District Court over the person of SHARP; hence, its decision was void. Unable to obtain a reconsideration of the decision, NORTHWEST elevated the case to this Court contending that the respondent court erred in holding that SHARP was not a resident of Japan and that summons on SHARP could only be validly served within that country. A foreign judgment is presumed to be valid and binding in the country from which it comes, until the contrary is shown. It is also 6 proper to presume the regularity of the proceedings and the giving of due notice therein. Under Section 50, Rule 39 of the Rules of Court, a judgment in an action in personam of a tribunal of a foreign country having jurisdiction to pronounce the same is presumptive evidence of a right as between the parties and their successors-in-interest by a subsequent title. The judgment may, however, be assailed by evidence of want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law or fact. Also, under Section 3 of Rule 131, a court, whether of the Philippines or elsewhere, enjoys the presumption that it was acting in the lawful exercise of jurisdiction and has regularly performed its official duty. Consequently, the party attacking a foreign judgment has the burden of overcoming the presumption of its validity. Being the party challenging the judgment rendered by the Japanese court, SHARP had the duty to demonstrate the invalidity of such judgment. In an attempt to discharge that burden, it contends that the extraterritorial service of summons effected at its home office in the Philippines was not only ineffectual but also void, and the Japanese Court did not, therefore acquire jurisdiction over it.
7

It is settled that matters of remedy and procedure such as those relating to the service of process upon a defendant are governed 8 by the lex fori or the internal law of the forum. In this case, it is the procedural law of Japan where the judgment was rendered that determines the validity of the extraterritorial service of process on SHARP. As to what this law is is a question of fact, not of 9 law. It may not be taken judicial notice of and must be pleaded and proved like any other fact. Sections 24 and 25, Rule 132 of the Rules of Court provide that it may be evidenced by an official publication or by a duly attested or authenticated copy thereof. It was then incumbent upon SHARP to present evidence as to what that Japanese procedural law is and to show that under it, the assailed extraterritorial service is invalid. It did not. Accordingly, the presumption of validity and regularity of the service of summons and the decision thereafter rendered by the Japanese court must stand. Alternatively in the light of the absence of proof regarding Japanese 10 law, the presumption of identity or similarity or the so-called processual presumption may be invoked. Applying it, the Japanese law on the matter is presumed to be similar with the Philippine law on service of summons on a private foreign corporation doing business in the Philippines. Section 14, Rule 14 of the Rules of Court provides that if the defendant is a foreign corporation doing business in the Philippines, service may be made: (1) on its resident agent designated in accordance with law for that purpose, or, (2) if there is no such resident agent, on the government official designated by law to that effect; or (3) on any of its officers or agents within the Philippines. If the foreign corporation has designated an agent to receive summons, the designation is exclusive, and service of summons is 11 without force and gives the court no jurisdiction unless made upon him. Where the corporation has no such agent, service shall be made on the government official designated by law, to wit: (a) the Insurance Commissioner in the case of a foreign insurance company; (b) the Superintendent of Banks, in the case of a foreign banking corporation; and (c) the Securities and Exchange Commission, in the case of other foreign corporations duly licensed to do business in the Philippines. Whenever service of process is so made, the government office or official served shall transmit by mail a copy of the summons or other legal proccess to the corporation at its home or principal office. The sending of such copy is a 12 necessary part of the service. SHARP contends that the laws authorizing service of process upon the Securities and Exchange Commission, the Superintendent of Banks, and the Insurance Commissioner, as the case may be, presuppose a situation wherein the foreign corporation doing business in the country no longer has any branches or offices within the Philippines. Such contention is belied by the pertinent 13 14 provisions of the said laws. Thus, Section 128 of the Corporation Code and Section 190 of the Insurance Code clearly contemplate two situations: (1) if the corporation had left the Philippines or had ceased to transact business therein, and (2) if the 15 corporation has no designated agent. Section 17 of the General Banking Act does not even speak a corporation which had ceased to transact business in the Philippines. Nowhere in its pleadings did SHARP profess to having had a resident agent authorized to receive court processes in Japan. This silence could only mean, or least create an impression, that it had none. Hence, service on the designated government official or on any of SHARP's officers or agents in Japan could be availed of. The respondent, however, insists that only service of any of its officers or employees in its branches in Japan could be resorted to. We do not agree. As found by the respondent court, two attempts at service were made at SHARP's Yokohama branch. Both were unsuccessful. On the first attempt, Mr. Dinozo, who was believed to be the person authorized to accept court process, was in Manila. On the second, Mr. Dinozo was present, but to accept the summons because, according to him, he was no longer an employee of SHARP. While it may be true that service could have been made upon any of the officers or agents of SHARP at its three other branches in Japan, the availability of such a recourse would not preclude service upon the proper government official, as stated above. As found by the Court of Appeals, it was the Tokyo District Court which ordered that summons for SHARP be served at its head 16 office in the Philippine's after the two attempts of service had failed. The Tokyo District Court requested the Supreme Court of Japan to cause the delivery of the summons and other legal documents to the Philippines. Acting on that request, the Supreme Court of Japan sent the summons together with the other legal documents to the Ministry of Foreign Affairs of Japan which, in turn, forwarded the same to the Japanese Embassy in Manila . Thereafter, the court processes were delivered to the Ministry (now Department) of Foreign Affairs of the Philippines, then to the Executive Judge of the Court of First Instance (now Regional Trial Court) of Manila, who forthwith ordered Deputy Sheriff Rolando Balingit to serve the same on SHARP at its principal office in Manila. This service is equivalent to service on the proper government official under Section 14, Rule 14 of the Rules of Court, in relation to Section 128 of the Corporation Code. Hence, SHARP's contention that such manner of service is not valid under 17 Philippine laws holds no water. In deciding against the petitioner, the respondent court sustained the trial court's reliance on Boudard vs. Tait where this Court held:
18

The fundamental rule is that jurisdiction in personam over nonresidents, so as to sustain a money judgment, must be based upon personal service within the state which renders the judgment. xxx xxx xxx The process of a court, has no extraterritorial effect, and no jurisdiction is acquired over the person of the defendant by serving him beyond the boundaries of the state. Nor has a judgment of a court of a foreign country against a resident of this country having no property in such foreign country based on process served here, any effect here against either the defendant personally or his property situated here. Process issuing from the courts of one state or country cannot run into another, and although a nonresident defendant may have been personally served with such process in the state or country of his domicile, it will not give such jurisdiction as to authorize a personal judgment against him. It further availed of the ruling in Magdalena Estate, Inc. vs. Nieto 21 by the Iowa Supreme Court in the 1911 case of Raher vs. Raher.
19

and Dial Corp. vs. Soriano,

20

as well as the principle laid down

The first three cases are, however, inapplicable. Boudard involved the enforcement of a judgment of the civil division of the Court of First Instance of Hanoi, French Indo-China. The trial court dismissed the case because the Hanoi court never acquired jurisdiction over the person of the defendant considering that "[t]he, evidence adduced at the trial conclusively proves that neither the appellee [the defendant] nor his agent or employees were ever in Hanoi, French Indo-China; and that the deceased Marie Theodore Jerome Boudard had never, at any time, been his employee." In Magdalena Estate, what was declared invalid resulting in the failure of the court to acquire jurisdiction over the person of the defendants in an action in personam was the service of summons through publication against non-appearing resident defendants. It was claimed that the latter concealed themselves to avoid personal service of summons upon them. In Dial, the defendants were foreign corporations which were not, domiciled and licensed to engage in business in the Philippines and which did not have officers or agents, places of business, or properties here. On the other hand, in the instant case, SHARP was doing business in Japan and was maintaining four branches therein. Insofar as to the Philippines is concerned, Raher is a thing of the past. In that case, a divided Supreme Court of Iowa declared that the principle that there can be no jurisdiction in a court of a territory to render a personal judgment against anyone upon service made outside its limits was applicable alike to cases of residents and non-residents. The principle was put at rest by the United 22 States Supreme Court when it ruled in the 1940 case ofMilliken vs. Meyer that domicile in the state is alone sufficient to bring an absent defendant within the reach of the state's jurisdiction for purposes of a personal judgment by means of appropriate substituted service or personal service without the state. This principle is embodied in section 18, Rule 14 of the Rules of Court which allows service of summons on residents temporarily out of the Philippines to be made out of the country. The rationale for this rule was explained in Millikenas follows: [T]he authority of a state over one of its citizens is not terminated by the mere fact of his absence from the state. The state which accords him privileges and affords protection to him and his property by virtue of his domicile may also exact reciprocal duties. "Enjoyment of the privileges of residence within the state, and the attendant right to invoke the protection of its laws, are inseparable" from the various incidences of state citizenship. The responsibilities of that citizenship arise out of the relationship to the state which domicile creates. That relationship is not dissolved by mere absence from the state. The attendant duties, like the rights and privileges incident to domicile, are not dependent on continuous presence in the state. One such incident of domicile is amenability to suit within the state even during sojourns without the state, where the state has provided and employed a reasonable method for apprising such an absent party of the proceedings against 23 him. The domicile of a corporation belongs to the state where it was incorporated. In a strict technical sense, such domicile as a 25 corporation may have is single in its essence and a corporation can have only one domicile which is the state of its creation. Nonetheless, a corporation formed in one-state may, for certain purposes, be regarded a resident in another state in which it has offices and transacts business. This is the rule in our jurisdiction and apropos thereto, it may be necessery to quote what we 26 stated in State Investment House, Inc, vs. Citibank, N.A., to wit: The issue is whether these Philippine branches or units may be considered "residents of the Philippine Islands" as that term is used in Section 20 of the Insolvency Law . . . or residents of the state under the laws of which they
24

were respectively incorporated. The answer cannot be found in the Insolvency Law itself, which contains no definition of the term, resident, or any clear indication of its meaning. There are however other statutes, albeit of subsequent enactment and effectivity, from which enlightening notions of the term may be derived. The National Internal Revenue Code declares that the term "'resident foreign corporation' applies to a foreign corporation engaged in trade or business within the Philippines," as distinguished from a "'non-resident foreign corporation' . . . (which is one) not engaged in trade or bussiness within the Philippines." [Sec. 20, pars. (h) and (i)]. The Offshore Banking Law, Presidential Decree No. 1034, states "that branches, subsidiaries, affiliation, extension offices or any other units of corporation or juridical person organized under the laws of any foreign country operating in the Philippines shall be considered residents of the Philippines. [Sec. 1(e)]. The General Banking Act, Republic Act No. 337, places "branches and agencies in the Philippines of foreign banks . . . (which are) called Philippine branches," in the same category as "commercial banks, savings associations, mortgage banks, development banks, rural banks, stock savings and loan associations" (which have been formed and organized under Philippine laws), making no distinction between the former and the latter in so far as the terms "banking institutions" and "bank" are used in the Act [Sec. 2], declaring on the contrary that in "all matters not specifically covered by special provisions applicable only to foreign banks, or their branches and agencies in the Philippines, said foreign banks or their branches and agencies lawfully doing business in the Philippines "shall be bound by all laws, rules, and regulations applicable to domestic banking corporations of the same class, except such laws, rules and regulations as provided for the creation, formation, organization, or dissolution of corporations or as fix the relation, liabilities, responsibilities, or duties of members, stockholders or officers of corporation. [Sec. 18]. This court itself has already had occasion to hold [Claude Neon Lights, Fed. Inc. vs. Philippine Advertising Corp., 57 Phil. 607] that a foreign corporation licitly doing business in the Philippines, which is a defendant in a civil suit, may not be considered a non-resident within the scope of the legal provision authorizing attachment against a defendant not residing in the Philippine Islands; [Sec. 424, in relation to Sec. 412 of Act No. 190, the Code of Civil Procedure; Sec. 1(f), Rule 59 of the Rules of 1940, Sec. 1(f), Rule 57, Rules of 1964] in other words, a preliminary attachment may not be applied for and granted solely on the asserted fact that the defendant is a foreign corporation authorized to do business in the Philippines and is consequently and necessarily, "a party who resides out of the Philippines." Parenthetically, if it may not be considered as a party not residing in the Philippines, or as a party who resides out of the country, then, logically, it must be considered a party who does reside in the Philippines, who is a resident of the country. Be this as it may, this Court pointed out that: . . . Our laws and jurisprudence indicate a purpose to assimilate foreign corporations, duly licensed to do business here, to the status of domestic corporations. (Cf. Section 73, Act No. 1459, and Marshall Wells Co. vs. Henry W. Elser & Co., 46 Phil. 70, 76; Yu Cong Eng vs. Trinidad, 47 Phil. 385, 411) We think it would be entirely out of line with this policy should we make a discrimination against a foreign corporation, like the petitioner, and subject its property to the harsh writ of seizure by attachment when it has complied not only with every requirement of law made specially of foreign corporations, but in addition with every requirement of law made of domestic corporations. . . . Obviously, the assimilation of foreign corporations authorized to do business in the Philippines "to the status of domestic corporations, subsumes their being found and operating as corporations, hence, residing, in the country. The same principle is recognized in American law: that the residence of a corporation, if it can be said to have a residence, is necessarily where it exercises corporate functions . . .;" that it is considered as dwelling "in the place where its business is done . . .," as being "located where its franchises are exercised . . .," and as being "present where it is engaged in the prosecution of the corporate enterprise;" that a "foreign corporation licensed to do business in a state is a resident of any country where it maintains an office or agent for transaction of its usual and customary business for venue purposes;" and that the "necessary element in its signification is locality of existence." [Words and Phrases, Permanent Ed., vol. 37, pp. 394, 412, 493].

In as much as SHARP was admittedly doing business in Japan through its four duly registered branches at the time the collection suit against it was filed, then in the light of the processual presumption, SHARP may be deemed a resident of Japan, and, as such, was amenable to the jurisdiction of the courts therein and may be deemed to have assented to the said courts' lawful methods of 27 serving process. Accordingly, the extraterritorial service of summons on it by the Japanese Court was valid not only under the processual presumption but also because of the presumption of regularity of performance of official duty. We find NORTHWEST's claim for attorney's fees, litigation expenses, and exemplary damages to be without merit. We find no evidence that would justify an award for attorney's fees and litigation expenses under Article 2208 of the Civil Code of the Philippines. Nor is an award for exemplary damages warranted. Under Article 2234 of the Civil Code, before the court may consider the question of whether or not exemplary damages should be awarded, the plaintiff must show that he is entitled to moral, temperate, or compensatory damaged. There being no such proof presented by NORTHWEST, no exemplary damages may be adjudged in its favor. WHEREFORE, the instant petition is partly GRANTED, and the challenged decision is AFFIRMED insofar as it denied NORTHWEST's claims for attorneys fees, litigation expenses, and exemplary damages but REVERSED insofar as in sustained the trial court's dismissal of NORTHWEST's complaint in Civil Case No. 83-17637 of Branch 54 of the Regional Trial Court of Manila, and another in its stead is hereby rendered ORDERING private respondent C.F. SHARP L COMPANY, INC. to pay to NORTHWEST the amounts adjudged in the foreign judgment subject of said case, with interest thereon at the legal rate from the filing of the complaint therein until the said foreign judgment is fully satisfied. Costs against the private respondent. SO ORDERED.

[G.R. THE PEOPLE OF M.

No. THE

L-28355. PHILIPPINES, Plaintiff-Appellee, Tayag (Counsel v.

July APOLINARIO de LUMANTAS Officio), @

17,

1969.]

PEOLE,Defendant-Appellant. for Defendant-Appellant.

Enrique

Solicitor General Antonio P. Barredo, Assistant Solicitor General Pacifico P. de Castro and Solicitor Norberto P. Eduardo for Plaintiff-Appellee.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; WEIGHT AND CREDIBILITY; TESTIMONY OF WITNESS, UNCERTAINTY IN KIND OF WEAPON USED NOT AN IMPAIRMENT OF WITNESS CREDIBILITY. Appellant argues that the testimony of prosecution witness Francisco Bati-on is unreliable because while he recognized the weapon used by Badiang the witness was not clear on the weapon used by appellant Lumantas. This uncertainty as to the kind of weapon used does not necessarily impair his reliability. There was a wound just below the left nipple of the deceased, while two wounds existed at the right side of his body. These wounds tally with Bati-ons testimony that Badiang inflicted one wound at the left and the knife came out at the right side, and that the second wound at the right side of the victim was inflicted by Lumantas. Bati-ons non-recognition of the weapon used by Lumantas does not alter the fact that the latter did use a weapon to produce the wound described. 2. ID.; ID.; ID.; WITNESS DENIAL OF KNOWLEDGE OF CRIME RIGHT AFTER COMMISSION THEREOF, NOT SUBSTANTIAL DIMINUTION OF HIS CREDIBILITY. Although the denial of a witness of any knowledge of the crime right after the commission thereof reduces his credibility, such diminution is not substantial. It is not unusual for witnesses at first refusing to be involved in a criminal proceeding. The witness disclosed what he knew about the incident shortly thereafter, on Nov. 16, 1963, when he signed a statement taken from him by the police at the municipal building; gave additional answers to interrogations by the municipal judge; and swore to the truth thereof on Nov. 17, 1963. This sworn statement was not offered in evidence, but it forms part of the record of the preliminary investigation conducted by the municipal judge and can be taken judicial notice by both the trial court and the Supreme Court. 3. ID.; ID.; ID.; ALIBI; REQUISITES THEREOF NOT ESTABLISHED IN INSTANT CASE. Alibi is one of the weakest defenses that can be resorted to by an accused (People v. De la Cruz, 76 Phil. 701). To establish it, the accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (U.S. v. Oxiles, 20 Phil. 587; People v. Palomos, 49 Phil. 601; People v. Resabal, 50 Phil. 780). These requisites accused-appellant failed to establish; he did not even show how long he stayed in Upper Lamak where he allegedly was at the time of the crime which was only two kilometers away from the Mobod market place, the scene of the crime. 4. ID.; ID.; PROOF OF MOTIVE NOT NECESSARY WHERE THE CRIME AND THE PARTICIPATION OF THE ACCUSED ARE DEFINITELY PROVED. The prosecution did not prove any motive of appellant Lumantas for committing the crime, but lack of motive does not preclude conviction of the offense when the crime and the participation of the accused are definitely proved, as was done in this case (People v. Tanco, 58 Phil. 255; People v. Reyno, L-19071, 30 April 1965; People v. Villalba, L-17243, 23 August 1966). 5. CRIMINAL LAW; MURDER; TREACHERY QUALIFIED CRIME. The crime committed is murder, qualified by treachery, established by the sudden and unexpected attack upon the victim by the two accused, who situated themselves on both sides of the deceased and rendered the victim unable to defend himself. 6. ID.; ID.; ABUSE OF SUPERIOR STRENGTH ABSORBED IN TREACHERY. Abuse of superior strength also attended the commission of the crime, but this circumstance is absorbed in treachery. 7. ID.; MURDER; PROPER PENALTY IN INSTANT CASE. Murder is penalized by "reclusion temporal in its maximum period to death" (Article 248, Revised Penal Code). Since there is no aggravating or mitigating circumstance, the penalty should have been imposed in its medium period, which isreclusion perpetua. 8. ID.; CIVIL LIABILITY; P12,000.00 FOR DEATH OF VICTIM. Not the least of its errors, also on the face of the dispositive portion of its decision, is the trial courts imposition of compensatory damages in the amount of P3,000.00 for the death of the vict im (P1,500.00 from each of the two accused). The decision was promulgated on 12 December 1964, but the then existing jurisprudence (since 1948, People v. Amansec, 80 Phil. 424) fixed the amount of indemnification at P6,000.00. The amount was later raised to P12,000.00 in People v. Pantoja, L-18793, Oct. 11, 1968.

9. ID.; ID.; ID.; LIABILITY OF APPELLANT WHERE CO-CONSPIRATOR DID NOT APPEAL, EXCEPTION. Normally, co-conspirators of a crime are held jointly and severally liable in the amount of P12,000.00 by way of indemnification for the death of their victim. But here, the trial court condemned the co-conspirator of defendant-appellant to pay only P1,500.00, and the decision with respect to him has become final when his appeal was dismissed by the Court of Appeals at his own request. In justice to the heirs of the deceased, Defendant-Appellant should pay an indemnity of P12,000.00, but with the right to demand contribution from his coaccused in the sum of P1,500.00. While it may appear that this award is to some extent unfair to this appellant, it is a necessary consequence of the withdrawal of the co-accuseds appeal, which rendered final the low indemnity awarded by the court below erroneous though it be), and above all, to the need of doing justice to the heirs of the victim, whose right to adequate indemnification is paramount.

DECISION

REYES, J.B.L., J.:

Olimpio Badiang and Apolinario Lumantas were convicted of the crime of murder by the Honorable Mariano A. Zosa of the Court of First Instance of Misamis Occidental (Branch IIIOroquieta) and sentenced to different penalties. The dispositive part is phrased as follows:jgc:chanrobles.com.ph ". . .; and, pursuant to the provisions of Article 248 taken together with the provisions of Article 14, paragraphs 9 and 15 and Article 64, paragraph 6 of the same Revised Penal Code, as to Olimpio Badiang alias Lim, the court sentences him to suffer an imprisonment of SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY to TWENTY (20) YEARS of Reclusion Temporal; and, likewise sentences Apolinario (People) Lumantas, who, after having made a stab wound to the deceased, fled (sic) from the scene of the crime, to suffer an imprisonment of one degree lower or TEN (10) YEARS, and ONE (1) DAY of prision mayor in its maximum period, to indemnify the heirs of Laureto Limpahan in the sum of P1,500.00 each, without subsidiary imprisonment in case of insolvency, to pay the proportionate costs of the proceedings and suffer the accessory penalties provided for by law. "The instruments exhibited are hereby declared confiscated."cralaw virtua1aw library

Both accused appealed the decision to the Court of Appeals, but the appeal of Olimpio Badiang was dismissed on 14 September 1965 upon his own petition. The Court of Appeals found that the imposable penalty upon the remaining appellant, Apolinario Lumantas, is reclusion perpetua, for which reason it certified the case to the Supreme Court. 1 The evidence on record shows that many people had gathered in the marketplace of Mobod, Oroquieta, Misamis Occidental, at about five oclock in the afternoon of Thursday, 14 November 1963. Although it was not a market day, a fair was being held in extended celebration of All Saints Day. There was cockfighting and a "hantak" game was bein g played. Among the players in the said game was the late Laureto (or Laurito) Limpahan. The principal witness for the prosecution, Francisco Bati-on, who was about two (2) meters away from where the "hantak" game was being played (t.s.n., page 31), saw accused Badiang and Lumantas at both sides of the deceased. This witness narrated what happened moments later, as follows:jgc:chanrobles.com.ph "Q "A "Q You I said saw that only you knew Apolinario (Apolinario did Lumantas, Lumantas) do you who know was Peoley what he was beside do doing at that time?

Peoley

standing

Laurito

Limpahan. there?

What

"A When Laurito was in the "hantak" game I saw him stood up and counted his money; and, it was at that time that this Lim Badiang slapped him with the back of his palm at his face and with his left hand delivered a thrust to him. "Q What happened next?

"A. When Laurito was hit (witness was pointing to the left side of his body his hand up; next he made a motion jerking up) and then Peoley stabbed him at the right side of the body (witness pointing to the right side of his body below the armpit). When Peoley stabbed him, Lim stabbed him by the left hand.

"Q You said that Apolinario Lumantas stabbed Laurito Limpahan where did that land in the body of Limpahan? "A Peoley thrust him to the right arm pit of Laurito." (T.S.N., pages 11-12) (sic).

After he was stabbed, Laurito Limpahan ran away, with Badiang and Lumantas in pursuit. Limpahan collapsed after running a distance of ten meters. Badiang kicked him in the face. Prosecution witness Bati- on, who was a friend of Badiang, entreated the latter to stop kicking Limpahan as he was already dead, but Badiang tried to stab Bati-on instead. When Lumantas saw that Limpahan was dead, Accused left the place and went home. The people scampered away even as Badiang brandished his bloody bolo and challenged everyone to a fight. Policeman Hospecio Pausal happened to be in the marketplace at the time, saving subpoena. He was attracted by the commotion and, seeing Olimpio Badiang carrying a bolo covered with blood, fired a shot in the air and commanded Badiang to put down his weapon. Badiang did as commanded. Pausal brought him to the municipal building and turned him over to the guard on duty. Policeman Pausal inspected the body of Laurito Limpahan and found at the left side a sharp-pointed bolo, with the blade partly drawn from its scabbard about two (2) inches, and an Indian slingshot in the right pocket. The municipal health officer of Oroquieta, Dr. Henry Y. Dullin, performed a post-mortem examination of the cadaver of Laureto Limpahan at eight oclock that evening and found the following:jgc:chanrobles.com.ph " wound located over the left chest just below the nipple about 4 inches in length, deep penetrating which injured the heart, lung and great blood vessels around the heart and lungs; " wound located over the right axilla about 2 inches in length, deep;

" wound located over the right chest about 2 inches in length, deep, situated over the 6 intercostal space along the right midaxillary line; " " " wound abrasion over over wound the the left over forehead, bridge forearm the of the lateral surface right nose and left 5 inches thenar cheek." in length; eminence; (Exhibit "A").

As this appeal pertains only to Apolinario Lumantas, we shall limit this review to his case, skipping the version of his co-accused, Olimpio Badiang. The appellants defense is alibi, claiming that at the time of the commission of the crime, in the afternoon of 14 November 1 963, he was not at Mobod but at Upper Lamak, about one and a half to two kilometers away, to gather tuba from 17 coconut trees. Appellant argues that the testimony of prosecution witness Francisco Bati-on is unreliable because while he recognized the weapon used by Badiang the witness was not clear on the weapon used by appellant Lumantas. This uncertainty as to the kind of weapon used does not necessarily impair his reliability. There was a wound just below the left nipple of the deceased, while two wounds existed at the right side of his body. These wounds tally with Bati-ons testimony that Badiang inflicted one wound at the left and the knife came out at the right side, and that the second wound at the right side of the victim was inflicted by Lumantas. Bati-ons non-recognition of the weapon used by Lumantas does not alter the fact that the latter did use a weapon to produce the wound described. Neither do we find that this eyewitness acted through improper motives, the charge of personal enmity by the accused not being adequately supported. A defense witness, Anselmo Mahawan, testified that, as a member of the police force at the time of the stabbing, he was designated to look for witnesses. He went to the scene of the crime, saw the mother of the deceased crying over her son, and asked her about the companion of her son. The mother pointed to Francisco Bati-on. When Mahawan inquired from Bati-on what he knew about the incident, Bati-on denied knowledge of anything. This testimony of defense witness Mahawan was unrebutted; but while the fact that Bati-on denied any knowledge about the crime soon after its commission before the investigating policeman reduces the credibility of Bati-on, such diminution is not substantial. It is not unusual for witnesses at first refusing to be involved in a criminal proceeding. The witness disclosed what he knew about the incident shortly thereafter, on 16 November

1963, when he signed a statement taken from him by the police at the municipal building; gave additional answers to interrogations by the municipal judge; and swore to the truth thereof on 17 November 1963 (CFI Criminal Case Rec. Wrapper, page 7). This sworn statement was not offered in evidence, but it forms part of the record of the preliminary investigation conducted by the municipal judge and can be taken judicial notice of by both the trial court and the Supreme Court. (People v. Bautista, 60 Phil. 1026) Alibi is one of the weakest defenses that can be resorted to by an accused (People v. De la Cruz, 76 Phil. 701). To establish it, the accused must show that he was at some other place for such a period of time that it was impossible for him to have been at the place where the crime was committed at the time of its commission (U. S. v. Oxiles, 20 Phil. 587; People v. Palomos, 49 Phil, 601; People v. Resabal, 50 Phil. 780). These requisites accused-appellant failed to establish; he did not even show how long he stayed in Upper Lamak, which was only two kilometers away from the Mobod market place. Appellant Lumantas props his defense of alibi with the fact that prosecution witness, policeman Hospecio Pausal, did not see said appellant in the market place when he apprehended Badiang after the stabbing incident. That appellant was not seen by Pausal may be explained by the fact that appellant Lumantas had left the place when he saw that Limpahan was already dead, and the patrolmans attention was concentrated on Badiang who was challenging all and sundry while brandishing a bolo. The prosecution did not prove any motive of appellant Lumantas for committing the crime, but lack of motive does not preclude conviction of the offense when the crime and the participation of the accused are definitely proved, as was done in this case (People v. Tanco, 58 Phil. 255; People v. Reyno, L-19071, 30 April 1965; People v. Villalba, L-17243, 23 August 1966, 17 SCRA 948). The crime committed is murder, qualified by treachery, established by the sudden and unexpected attack upon the victim by the two accused, who situated themselves on both sides of the deceased and rendered the victim unable to defend himself (U. S. v. Castellon, 12 Phil. 160; People v. Macarinfas, 40 Phil. 1). Abuse of superior strength also attended the commission of the crime, but this circumstance is absorbed in treachery (People v. Limaco, 88 Phil. 35; People v. Ruzol, Et Al., 100 Phil. 537). The Solicitor General admits that the prosecution failed to prove evident premeditation (Brief, page 10). We agree; and we, likewise, find no mitigating circumstance. Murder is penalized by "reclusion temporal in its maximum period to death" (Article 248, Revised Penal Code). Since there is no aggravating or mitigating circumstance, the penalty should have been imposed in its medium period, which is reclusion perpetua. The errors of the trial court in the imposition of the penalties, based on its own findings, are at once noticeable; for, having declared Olimpio Badiang 2 guilty of murder, with the aggravating circumstances of recidivism and superior strength (Nos. 9 & 15, Article 14, Revised Penal Code), without any mitigating circumstance, the court imposed the minimum penalty for murder, reclusion temporal, instead of the maximum, which is death, and misapplied Article 64, paragraph 6, 3 of the code, on the wrong assumption that the maximum penalty for murder is the maximum period of reclusin temporal. As for Apolinario Lumantas, the court imposed upon him a penalty one degree lower because, after stabbing the victim, he fled from the scene of the crime. Flight may indicate guilt, 4 but certainly, it is not a reward for committing a crime nor a mitigation of criminal responsibility. On the contrary, the simultaneity of the attack and the strategy of assailing the deceased from both sides fully establish conspiracy and common intent. Not the least of its errors, also on the face of the dispositive portion of its decision, is the trial courts imposition of compensatory damages in the amount of P3,000.00 for the death of the victim (P1,500.00 from each of the two accused). The decision was promulgated on 12 December 1964, but the then existing jurisprudence (since 1948, People v. Amansec, 80 Phil. 424) fixed the amount of indemnification at P6,000.00. The amount was later raised to P12,000.00 in People v. Pantoja, L-18793, 11 October 1968. Normally, co-conspirators of a crime are held jointly and severally liable in the amount of P12,000.00, by way of indemnification for the death of their victim. But here, the trial court condemned Olimpio Badiang to pay only P1,500 00, and the decision with respect to him has become final when his appeal was dismissed by the Court of Appeals at his own request, The question, therefore, arises: how much should the co-conspirator, Apolonio Lumantas, the herein remaining appellant, be made to pay? We believe that; in justice to the heirs of Laurito Limpahan, he should pay an indemnity of P12,000.00, but with the right to demand contribution from his co-accused in the sum of P1,500,00. While it may appear that this award is to some extent unfair to this appellant, it is a necessary consequence of the withdrawal of Badiangs appeal, which rendered final the low indemnity awarde d by the court below (erroneous though it should be), and above all, to the need of doing justice to the heirs of the victim, whose right to adequate indemnification is paramount. FOR THE FOREGOING REASONS, the appealed decision, insofar as Apolinario Lumantas is concerned, is hereby modified, to the

effect that he shall suffer the penalty of reclusion perpetua, with its accessory penalties, and to pay the heirs of Laurito Limpahan the amount of P12,000.00, without subsidiary imprisonment in case of insolvency, and to pay the proportionate share of the costs; but with a right to demand contribution from his co-accused Olimpio Badiang, in the sum of P1,500.00, to the payment of which said Badiang was sentenced by the court below. Concepcion, C.J., Dizon, Makalintal, Zaldivar, Sanchez, Castro, Fernando, Capistrano, Teehankee and Barredo, JJ., concur. FIRST DIVISION [G.R. No. L-18860. November 30, 1963.]

CARLOS AVENDAO, Petitioner, v. HON. LADISLAO PASICOLAN, Judge of the Court of First Instance of Pampanga, LORETO SALONGA and ABELARDO SALONGA, Respondents. Lorenzo Rafael Arcebido for Respondents. P. Navarro for Petitioner.

SYLLABUS

1. UNLAWFUL DETAINER; APPEALS; IMMEDIATE EXECUTION OF JUDGMENTS; SECTION 8, RULE 72, RULES OF COURT NOT APPLICABLE TO LANDS RENTED ON THE YEARLY BASIS, LIKE FISHPONDS. Section 8, Rule 72, Rules of Court, insofar as execution of judgments in unlawful detainer cases involving fishponds is concerned, finds no application. This is so because said rule contemplates payment of a monthly rental the failure of which would give rise to execution, and not payment or rental in any other manner. In the present case, the rental fixed by the justice of the peace court is not monthly but yearly, and this is understandable considering the fact the property subject of the lease is a fishpond. (Cruz v. Hon. Dollete, Et Al., 96 Phil., 797; 51 Off. Gaz., 1826). The facts obtaining in the case at bar comes within the purview of the above quoted legal pronouncement.

DECISION

PAREDES, J.:

On October 25, 1956, the Justice of the Peace of Lubao, Pampanga, rendered judgment in Civil Case No. 145 (Unlawful Detainer), entitled "Tomasa D. Salonga v. Carlos Avendao, Et. Al." the dispositive portion of which reads "WHEREFORE, the defendant Carlos Avendao is hereby ordered to vacate the premises in question and to restore the possession thereof to the plaintiff Tomasa D. Salonga. "It is further ordered that the defendant Carlos Avendao pay to the plaintiff Tomasa D. Salonga the sum of Two Thousand Pesos (P2,000) Philippine Currency, per annum, from March 1, 1955 up to the restitution of the premises to the plaintiff, as reasonable compensation for the use and occupation of the premises; and costs."cralaw virtua1aw library The above judgment was appealed to the CFI of Pampanga and docketed as Civil Case No. 1152. In order to stay the execution of the judgment, a yearly deposit of P2,000.00, was made by petitioner, with the Clerk of the CFI of Pampanga on the following dates:chanrob1es virtual 1aw library a. b. c. d. e. Nov. Jan. March March March 14, 23, 19, 30, 14, 1956, 1958, 1958, 1959, 1960, for for for for for the the the the the agricultural agricultural agricultural agricultural agricultural year, year, year, year, year, 1957 1955-1956; 1956-1957; 1958; 1958-1959; 1959-1960;

f.

March

29,

1961,

for

the

agricultural

year

1960-1961;

Under date of March 19, 1958, the respondents (Salongas), claiming that petitioner failed to deposit the annual rentals pertaining to the agricultural year 1957-1958, presented with the lower court a motion for immediate execution of the judgment of the JP Court. An opposition was presented by petitioner, alleging among others, that said amount was deposited and while it was not made during the first ten (10) days of March, as required by Section 8, Rule 72, is of no moment, since said Rule does not apply to cases of unlawful detainer involving agricultural lands, including fishponds, when rentals are on the yearly basis. The Court resolving the point, said ". . . the motion dated March 19, 1958 which was set for hearing on March 22, same year, asking for the immediate execution of the judgment on the ground that the defendants did not make deposits for the year 1958, and it appearing from the answer of defendant Carlos Avendao dated March 31, 1958 that he has already made a deposit in the sum of P2,000.00 for March 1, 1957 to March 1, 1958, as shown by Official Receipt No. 4502957, the said motion for immediate execution is hereby denied." (Order on May 23, 1958). Upon the authority of the above Order, the respondent Salongas, withdrew from the Clerk, the sum of P2,000.00. On March 24, 1959, Respondents, again petitioned for the immediate execution of the judgment, claiming that the rentals for the agricultural year 1958-1959 had not been deposited during the first ten (10) days of March, 1959. Petitioner again opposed the motion, invoking the same grounds that he interposed in his opposition to the first motion for immediate execution. On April 13, 1959 respondents Judge issued an Order of the following tenor "This is a motion for execution under section 8, Rule 72 of the Rules of Court.

It appears that the yearly deposit of P2,000.00 was made on March 30, 1959, as evidenced by the certificate of the cashier, Annex A, instead of on or before March 10, 1959 (See decision of the Justice of the Peace dated October 25, 1956). Considering that the property is a fishpond and considering further the fact that the motion for execution was filed on March 30, 1959, the court believes that the provisions of section 8, alluded to above, have been substantially complied with. Motion denied. Hereafter, the defendant shall deposit the said yearly rental of P2,000.00 during the first ten (10) days of March of every year until this case shall have been finally adjudged and decided."cralaw virtua1aw library On March 15, 1961, the Salongas presented with the lower Court an Urgent Motion for Immediate Execution of the judgment, for failure of the petitioner to deposit the annual rent of P2,000.00 for the agricultural year 1960-1961 within the first ten (10) days of March, 1961. A corresponding opposition was filed by petitioner, reiterating, once more, his contention that Sec. 8, of Rule 72, does not apply, since the agricultural year 1960-1961 ended in the month of March, 1961, the rental need not be deposited within the first ten (10) days of said month. On June 7, 1961, respondent Judge issued an Order, pertinent portions of which are reproduced below "Upon the facts, it is clear that this is a case where the Justice of the Peace has determined the amount to be paid and the period within which it must be paid, if an immediate execution is to be stayed, that is, P2,000.00 per annum from March 1, 1955 up to the restitution of the fishpond. Considering the period of ten (10) days fixed in Section 8, Rule 72, is a reasonable period, and considering further that the defendant has been admonished under order of April 13, 1959 to pay the annual rental within ten (10) days from March 1 of every year. It is hereby adjudged that the deposit made on March 29, 1961 is a direct violation of Section 8, Rule 72, the judgment of the Justice of the Peace court quoted above, and the order of April 13, 1959. The argument that the agricultural year of the fishpond in question expired on March 31, 1961, is untenable. As aforestated, the date of payment has been specifically fixed in the judgment of the justice of the peace, and said date and no other date, shall prevail. The case of Cruz v. Judge Dollete has no application as the facts are entirely different.

WHEREFORE, let a writ of execution issue immediately upon the judgment of the justice of the peace rendered in this case, dated October 25, 1956."cralaw virtua1aw library A writ of execution was correspondingly issued, but the effects thereof were suspended per order of respondent Judge dated June 13, 1961 On July 17, 1961, petitioner presented a Motion for Reconsideration against the Order of June 7, 1961, which was denied on August 31, 1961. Petitioner claiming that the Order of June 7, 1961 constitutes a violation of his rights and that the implementation thereon would work grave and irreparable injury to him; that it had been issued with grave abuse of discretion, for which there is no other plain, adequate and speedy remedy in the ordinary course of law, he brought the matter to this Court, on a petition for Certiorari with Preliminary Injunction. The petition was given due course and ordered the issuance of a writ of preliminary injunction upon the posting of a P2,000.00 bond. Respondents answering the petition, called the attention of this Court, to the fact that during the pendency of the instant proceedings in this court, the CFI of Pampanga rendered judgment in Civil Case No. 1152 on July 19, 1961 (petition was submitted on September 13, 1961), ordering petitioner herein to vacate the fishpond and to pay P2,000.00 from March 1, 1960 until he leaves the premises. The appeal of petitioner with the Pampanga CFI was dismissed for having been filed out of the reglementary period. The motion for reconsideration directed against the dismissal of the appeal was also denied on January 22, 1962, and the corresponding writ of execution based upon a final judgment was issued by the respondent Court. Respondents maintain, under the above set of facts, that the issue raised in the petition (the propriety of the writ of execution pending appeal), has become moot and academic and that hearing on the petition would be out an empty gesture and waste of time. Petitioner did not file any pleading to counteract these allegations of the answer, and did not appear during the hearing set on June 18, 1962, thus showing lack of interest on his part to further prosecute this case. We do not believe that the JP Court, in ordering that the plaintiff should pay the respondents, rentals in the amount of P2,000.00 per year, "from March 1, 1955, up to the restitution of the premises", that it intended the payments should be made on the first ten (10) days of the month of March. Such date, in our opinion, is merely the starting point of petitioners liability to pay . Moreover, section 8, Rule 72, insofar as execution of judgments in unlawful detainer cases, involving fishponds, is concerned, finds no application. We said ". . . From this rule it appears clear that the immediate execution of the judgment can only be demanded if the defendant fails to pay on or before the tenth day of each calendar month, the reasonable value of the use and occupation of the premises for the preceding month at the rate determined by the judgment. This rule contemplates payment of a monthly rental the failure of which would give rise to execution, and not the payment of rental in any other manner. In the present case, the rental fixed by the justice of the peace court is not monthly but yearly, and this is understandable considering the fact that the property subject of the lease is a fishpond. The court can take judicial notice that fishpond is operated on a yearly basis because by its very nature the harvest accrues only once a year with rare exceptions and generally the rental is computed on a yearly basis. It is for this reason that the justice of the peace court fixed a rental of P2,750.00 a year as the reasonable value of the use and occupation of the fishpond in litigation. Such being the case, it is our opinion that Section 8, Rule 72 cannot be invoked as basis for the execution of the judgment of the justice of the peace court. As it now appears the rental fixed by the court is not yet due and, therefore, the order of execution issued by the respondent judge is premature." (De la Cruz v. Hon. Dollete, Et Al., G.R. No. L8183; 51 O.G. p. 1826, April 1955). As the facts obtaining in the case at bar comes within the purview of the above quoted legal pronouncements, We hold that the lower court erred in having the immediate execution of the judgment of the JP Court. However, inasmuch as our ruling will no longer benefit the petitioner, since a final judgment on the merits of the case had been rendered by the lower court which ordered his ejectment from the premises in question, and for which a writ of execution has been correspondingly issued; The petition is hereby dismissed, without pronouncement as to costs. [G.R. No. L-31018.

June

29,

1973.]

LORENZO VELASCO and SOCORRO J. VELASCO, Petitioners, v. HONORABLE COURT OF APPEALS and MAGDALENA ESTATE, INC., Respondents. Napoleon G. Rama, for Petitioners.

Dominador L. Reyes for Private Respondent.

DECISION

CASTRO, J.:

This is a petition for certiorari and mandamus filed by Lorenzo Velasco and Socorro J. Velasco (hereinafter referred to as the petitioners) against the resolution of the Court of Appeals dated June 28, 1969 in CA-G.R. 42376, which ordered the dismissal of the appeal interposed by the petitioners from a decision of the Court of First Instance of Quezon City on the ground that they had failed seasonably to file their printed record on appeal. Under date of November 3, 1968, the Court of First Instance of Quezon City, after hearing on the merits, rendered a decision in civil case 7761, dismissing the complaint filed by the petitioners against the Magdalena Estate, Inc. (hereinafter referred to as the respondent) for the purpose of compelling specific performance by the respondent of an alleged deed of sale of a parcel of residential land in favor of the petitioners. The basis for the dismissal of the complaint was that the alleged purchase and sale agreement "was not perfected."cralaw virtua1aw library On November 18, 1968, after the perfection of their appeal to the Court of Appeals, the petitioners received a notice from the said court requiring them to file their printed record on appeal within sixty (60) days from receipt of said notice. This 60-day term was to expire on January 17, 1969. Allegedly under date of January 15, 1969, the petitioners allegedly sent to the Court of Appeals and to counsel for the respondent, by registered mail allegedly deposited personally by its mailing clerk, one Juanito D. Quiachon, at the Makati Post Office, a "Motion For Extension of Time To File Printed Record on Appeal." The extension of time was sought on the ground "of mechanical failures of the printing machines, and the voluminous printing job now pending with the Vera Printing Press . . ."cralaw virtua1aw library On February 10, 1969, the petitioners filed their printed record on appeal in the Court of Appeals. Thereafter, the petitioners received from the respondent a motion filed on February 8, 1969 praying for the dismissal of the appeal on the ground that the petitioners had filed to file their printed record on appeal on time. Acting on the said motion to dismiss the appeal, the Court of Appeals, on February 25 1969, issued the following resolution:jgc:chanrobles.com.ph "Upon consideration of the motion of counsel for defendant-appellee praying on the grounds therein stated that the appeal be dismissed in accordance with Rule 50, Rules of Court, and of the opposition thereto filed by counsel for plaintiffs-appellants, the Court RESOLVED to DENY the said motion to dismiss. "Upon consideration of the registry-mailed motion of counsel for plaintiffs appellants praying on the grounds therein stated for an extension of 30 days from January 15, 1969 within which to file the printed record on appeal, the Court RESOLVED to GRANT the said motion and the printed record on appeal which has already been filed is ADMITTED."cralaw virtua1aw library On March 11, 1969, the respondent prayed for a reconsideration of the above-mentioned resolution, averring that the Court of Appeals had been misled by the petitioners "deceitful allegatio n that they filed the printed record on appeal within the reglementary period," because according to a certification issued by the postmaster of Makati, Rizal, the records of the said post office failed to reveal that on January 15, 1969 the date when their motion for extension of time to file the printed record on appeal was supposedly mailed by the petitioners there was any letter deposited there by the petitioners counsel. The petitioners opposed the motion for reconsideration. They submitted to the appellate court the registry receipts (numbered 0215 and 0216), both stamped January 15, 1969, which were issued by the receiving clerk of the registry section of the Makati Post Office covering the mails for the disputed motion for extension of time to file their printed record on appeal and the affidavit of its mailing clerk Juanito D. Quiachon, to prove that their motion for extension was timely filed and served on the Court of Appeals and the respondent, respectively. After several other pleadings and manifestations were filed by the parties relative to the issue raised by the respondents above -mentioned motion for reconsideration, the Court of Appeals promulgated on June 28, 1969, its questioned resolution, the dispositive portion of which reads as follows:jgc:chanrobles.com.ph "WHEREFORE, the motion for reconsideration filed on March 11, 1969 is granted and the appeal interposed by plaintiffsappellants from the judgment of the court below is hereby dismissed for their failure to file their printed Record on Appeal within the period authorized by this Court. Atty. Patrocinio R. Corpuz [counsel of the petitioners] is required to show cause within ten (10) days from notice why he should not be suspended from the practice of his profession for deceit, falsehood and violation of his sworn duty to the Court. The Provincial Fiscal of Rizal is directed to conduct the necessary investigation against Juanito D. Quiachon of the Salonga, Ordoez, Yap, Sicat & Associates Law Office, Suite 319 337 Rufino Building, Ayala Avenue, Makati, Rizal,

and Flaviano O. Malindog, a letter carrier at the Makati Post Office, to file the appropriate criminal action against them as may he warranted in the premises, and to report to this Court within thirty (30) days the action he has taken thereon."cralaw virtua1aw library The foregoing disposition was based on the following findings of the Court of Appeals:jgc:chanrobles.com.ph "An examination of the Rollo of this case, particularly the letter envelope on page 26 thereof, reveals that on January 15, 1969, plaintiffs supposedly mailed via registered mail from the Post Office of Makati, Rizal their motion for extension of 30 days from that date to file their printed Record on Appeal, under registered letter No. 0216. However, in an official certification, the Postmaster of Makati states that the records of his office disclose: (a) that there were no registered letters Nos. 0215 and 0216 from the Salonga, Ordoez, Yap, Sicat & Associates addressed to Atty. Abraham F. Sarmiento, 202 Magdalena Building, Espaa Ext., Quezon City, and to the Court of Appeals, Manila, respectively, that were posted in the Post Office of Makati, Rizal, on January 15, 1969; (b) that there is a registered letter numbered 215 but that the same was posted on January 3, 1969 by Enriqueta Amada of 7 Angel, Pasillo F-2, Cartimar, Pasay City, as sender, and Giral Amasan of Barrio Cabuniga-an, Sto. Nio, Samar, as addressee; and that there is also a registered letter numbered 216; but that the same was likewise posted on January 3, 1969 with E.B.A. Construction of 1049 Belbar Building, Metropolitan, Pasong Tamo, Makati, as sender, and Pres. R. Nakaya of the United Pacific Trading Co., Ltd., 79, 6 Chamo, Nakatu, Yokohari, Japan, as addressee; (c) that on January 15, 1969, the registered letters posted at the Makati Post Office were numbered consecutively from 1001-2225, inclusive, and none of these letters was addressed to Atty. Abraham F. Sarmiento or to the Court of Appeals; (d) that in Registry Bill Book No. 30 for Quezon City as well as that for Manila, corresponding to February 7, 1969, there are entries covering registered letters Nos. 0215 and 0216 for dispatch to Quezon City and Manila, respectively; however, such registry book for February 7, 1969 shows no registered letters with such numbers posted on the said date. "The Acting Postmaster of the Commercial Center Post Office of Makati, Rizal, further certifies that Registry Receipts Nos. 0215 and 0216 addressed to Atty. Abraham F. Sarmiento of the Magdalena Estate, Quezon City and the Honorable Court of Appeals, respectively, does not appear in our Registry Record Book which was allegedly posted at this office on January 15, 1969. "From the foregoing, it is immediately apparent that the motion for extension of time to file their printed Record on Appeal supposedly mailed to the plaintiffs on January 15, 1969 was not really mailed on that date but evidently on a date much later than January 15, 1969. This is further confirmed by the affidavit of Flaviano Malindog, a letter carrier of the Makati Post Office, which defendant attached as Annex 1 to its supplemental reply to plaintiffs opposition to the motion for reconsideration. In his s aid affidavit, Malindog swore among others:jgc:chanrobles.com.ph "That on February 7, 1969, between 12:00 oclock noon and 1:00 oclock in the afternoon, JUANITO D. QUIACHON approached me at the Makati Post Office and talked to me about certain letters which his employer had asked him to mail and that I should help him do something about the matter; but I asked him what they were all about, and he told me that they were letters for the Court of Appeals and for Atty. Abraham Sarmiento and that his purpose was to show that they were posted on January 15, 1969; that I inquired further, and he said that the letters were not so important and that his only concern was to have them postmarked January 15, 1969; "That believing the word of JUANITO QUIACHON that the letters were not really important I agreed to his request; whereupon I got two (2) registry receipts from an old registry receipt booklet which is no longer being used and I numbered them 0215 for the letter addressed to Atty. Abraham Sarmiento in Quezon City and 0216 for the letter addressed to the Court of Appeals, Manila; that I placed the same numbering on the respective envelopes containing the letters; and that I also postmarked them January 15, 1969; "That to the best of my recollection I wrote the correct date of posting, February 7, 1969 on the back of one or both of th e registry receipts above mentions; "That the correct date of posting, February 7, 1969 also appears in the Registry Bill Books for Quezon City and Manila where I entered the subject registered letters; "Of course, plaintiffs counsel denies the sworn statement of Malindog and even presented the counter-affidavit of one of his clerks by the name of Juanito D. Quiachon. But between Malindog, whose sworn statement is manifestly a declaration against interest since he can be criminally prosecuted for falsification on the basis thereof, and that of Quiachon, whose statement is selfserving, we are very much inclined to give greater weight and credit to the former. Besides, plaintiffs have not refuted the facts disclosed in the two (2) official certifications above mentioned by the Postmasters of Makati, Rizal. These two (2) certifications alone, even without the affidavit of Malindog, already carries more than enough weight to move this Court to reconsider its resolution of February 25, 1969 and order the dismissal of this appeal."cralaw virtua1aw library

On September 5, 1969, after the rendition of the foregoing resolution, the Court of Appeals promulgated another, denying the motion for reconsideration of the petitioners, but, at the same time, accepting as satisfactory the explanation of Atty. Patrocinio R. Corpuz why he should not be suspended from the practice of the legal profession. On September 20, 1969, the First Assistant Fiscal of Rizal notified the Court of Appeals that he had found a prima facie case against Flaviano C. Malindog and would file the corresponding information for falsification of public documents against him. The said fiscal, however, dismissed the complaint against Quiachon for lack of sufficient evidence. The information :subsequently filed against Malindog by the First Assistant Fiscal of Rizal reads as follows:jgc:chanrobles.com.ph "That on or about the 7th day of February 1969, in the municipality of Makati, province of Rizal, and a place within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together and mutually helping and aiding with John Doe, whose true identity and present whereabout is still unknown, did then and there willfully, unlawfully and feloniously falsify two registry receipts which are public documents by reason of the fact that said registry receipts are printed in accordance with the standard forms prescribed by the Bureau of Posts, committed as follows: the above-named accused John Doe, on the date above mentioned approached and induced the accused Malindog, a letter-carrier at the Makati Post Office, to postmark on January 15, 1969 two sealed envelopes, one addressed to Atty. Abraham Sarmiento in Quezon City, and the other to the Court of Appeals, Manila, and the accused Malindog, acceding to the inducement of, and in conspiracy with, his co-accused John Doe, did then and there willfully, unlawfully and feloniously falsify said registry receipts of the Makati Post Office by writing on the first registry receipts number 0215 corresponding to the envelope addressed to Atty. Abraham Sarmiento in Quezon City, and number 0216 addressed to the Court of Appeals, Manila, after which the accused postmarked both registry receipts and the two corresponding envelopes with the date January 15, 1969, thereby making it appear that the said sealed envelopes addressed to Atty. Sarmiento and the Court of Appeals were actually posted at the Makati Post Office on January 15, 1969, when in truth and in fact the same were posted only on February 7, 1969, thus the accused altered the true date when the said mail matters were actually posted, and causing it to appear that the Postmaster of Makati participated therein by posting said mail matters on January 15, 1969, when in truth and in fact he did not so participate."cralaw virtua1aw library The petitioners contend that in promulgating its questioned resolution, the Court of Appeals acted without or in excess of jurisdiction, or with such whimsical and grave abuse of discretion as to amount to lack of jurisdiction, because (a) it declared that the motion for extension of time to file the printed record on appeal was not mailed on January 15, 1969, when, in fact, it was mailed on the said date as evidenced by the registry receipts and the post office stamp of the Makati Post Office; (b) it declared that the record on appeal was filed only on February 10, 1969, beyond the time authorized by the appellate court, when the truth is that the said date of filing was within the 30-day extension granted by it; (c) the adverse conclusions of the appellate court were not supported by the records of the case, because the said court ignored the affidavit of the mailing clerk of the petitioner s counsel, the registry receipts and postmarked envelopes (citing Henning v. Western Equipment, 62 Phil. 579, and Caltex Phil., Inc. v. Katipunan Labor Union, 52 O.G. 6209), and, instead, chose to rely upon the affidavit of the mail carrier Malindog, which affidavit was prepared by counsel for the respondent at the aff iant himself so declared at the preliminary investigation at the Fiscals office which absolved the petitioners counsel mailing clerk Quiachon from any criminal liability; (d) section 1, Rule 50 of the Rul es of Court, which enumerates the grounds upon which the Court of Appeals may dismiss an appeal, does not include as a ground the failure to file a printed record on appeal; (e) the said section does not state either that the mismailing of a motion to extend the time to file the printed record on appeal, assuming this to be the case, may be a basis for the dismissal of the appeal; (f) the Court of Appeals has no jurisdiction to revoke the extension of time to file the printed record on appeal it had granted to the petitioners based on a ground not specified in section 1, Rule 50 of the Rules of Court; and (g) the objection to an appeal may be waived as when the appellee has allowed the record on appeal to be printed and approved (citing Moran, Vol. II, p. 519). Some of the objections raised by the petitioners to the questioned resolution of the Court of Appeals are obviously matters involving the correct construction of our rules of procedure and, consequently, are proper subjects of an appeal by way of certiorari under Rule 45 of the Rules of Court, rather than a special civil action for certiorari under Rule 65. The petitioners, however, have correctly appreciated the nature of its objections and have asked this Court to treat the instant petition as an appeal by way of certiorari under Rule 45 "in the event . . . that this Honorable Supreme Court should deem that an appeal is an adequate remedy . . ." The nature of the case at bar permits, in our view, a disquisition of both types of assignments. We do not share the view of the petitioners that the Court of Appeals acted without or in excess of jurisdiction or gravely abused its discretion in promulgating the questioned resolution. While it is true that stamped on the registry receipts 0215 and 0216 as well as on the envelopes covering the mails in question is the date "January 15, 1969," this, by itself, does not establish an unrebuttable presumption of the fact or date of mailing. Henning and Caltex, cited by the petitioners, are not in point because the specific adjective issue resolved in those cases was whether or not the date of mailing a pleading is to be considered as the date of its filing, The issue in the case at bar is whether or not the

motion of the petitioners for extension of time to file the printed record on appeal was, in point of fact, mailed (and, therefore, filed) on January 15, 1969. In resolving this issue in favor of the respondent, this Court finds, after a careful study and appraisal of the pleadings, admissions and denials respectively adduced and made by the parties, that the Court of Appeals did not gravely abuse its discretion and did not act without or in excess of its jurisdiction. We share the view of the appellate court that the certifications issued by the two postmasters of Makati, Rizal and the sworn declaration of the mail carrier Malindog describing how the said registry receipts came to be issued, are worthy of belief. It will be observed that the said certifications explain clearly and in detail how it was improbable that the registry receipts in question could have b een issued to the petitioners counsel in the ordinary course of official business, while Malindogs sworn statement, which constitutes a very grave admission against his own interest, provides ample basis for a finding that where official duty was not per formed it was at the behest of a person interested in the petitioners side of the action below. That at the preliminary investigation at the Fiscals office, Malindog failed to identify Quiachon as the person who i nduced him to issue falsified receipts, contrary to what he declared in his affidavit, is of no moment since the findings of the inquest fiscal as reflected in the information for falsification filed against Malindog indicate that someone did induce Malindog to make and issue false registry receipts to the counsel for the petitioners. This Court held in Bello v. Fernando 1 that the right to appeal is not a natural right nor a part of due process; it is merely a statutory privilege. and may he exercised only in the manner provided by law. In this connection, the Rules of Court expressly makes it the duty of an appellant to file a printed record on appeal with the Court of Appeals within sixty (60) days from receipt of notice from the clerk of that court that the record on appeal approved by the trial court has already been received by the said court. Thus, section 5 of Rule 46 states:jgc:chanrobles.com.ph "Sec. 5. Duty of appellant upon receipt of notice. It shall be the duty of the appellant within fifteen (15) days from the date of the notice referred to in the preceding section, to pay the clerk of the Court of Appeals the fee for the docketing of the appeal, and within sixty (60) days from such notice to submit to the court forty (40) printed copies of the record on appeal, together with proof of service of fifteen (15) printed copies thereof upon the appellee."cralaw virtua1aw library As the petitioners failed to comply with the abovementioned duty which the Rules of Court enjoins, and considering that, as found by the Court of Appeals, there was a deliberate effort on their part to mislead the said Court in granting them an extension of time within which to file their printed record on appeal, it stands to reason that the appellate court cannot be said to have abused its discretion or to have acted without or in excess of its jurisdiction in ordering the dismissal of their appeal. Our jurisprudence is replete with cases in which this Court dismissed an appeal on grounds not mentioned specifically in Section 1, Rule 50 of the Rules of Court. (See, for example, De la Cruz v. Blanco, 73 Phil. 596 (1942); Government of the Philippines v. Court of Appeals. 108 Phil. 86 (1960); Ferinion v. Sta. Romana, L-25521, February 28, 66, 16 SCRA 370, 375). It will likewise be noted that inasmuch as the petit ioners motion for extension of the period to file the printed record on appeal was belatedly filed, then, it is as though the same were non-existent, since as this Court has already stated in Baquiran v. Court of Appeals, 2 "The motion for extension of the period for filing pleadings and papers in court must be made before the expiration of the period to be extended." The soundness of this dictum in matters of procedure is self-evident. For, were the doctrine otherwise, the uncertainties that would follow when litigants are left to determine and redetermine for themselves whether to seek further redress in court forthwith or take their own sweet time will result in litigations becoming more unbearable than the very grievances they are intended to redress. The argument raised by the petitioner that the objection to an appeal may be waived, as when the appellee allows the record on appeal to be printed and approved is likewise not meritorious considering that the respondent did file a motion in the Court of Appeals on February 8, 1969 praying for the dismissal of the appeal below of the petitioners on the ground that up to the said date the petitioners had not yet filed their record on appeal and, therefore, must be considered to have abandoned their appeal. In further assailing the questioned resolution of the Court of Appeals, the petitioners also point out that on the merits the equities of the instant case are in their favor. A reading of the record, however, persuades us that the judgment a quo is substantially correct and morally just. The appealed decision of the court a quo narrates both the alleged and proven facts of the dispute between the petitioners and the respondent, as follows:jgc:chanrobles.com.ph "This is a suit for specific performance filed by Lorenzo Velasco against the Magdalena Estate, Inc. on the allegation that on November 29, 1962 the plaintiff and the defendant had entered into a contract of sale (Annex A of the complaint) by virtue of which the defendant offered to sell the plaintiff and the plaintiff in torn agreed to buy a parcel of land with an area of 2,059

square meters more particularly described as Lot 15, Block 7, Psd-6129, located at No. 39 corner 6th Street and Pacific Avenue, New Manila, this City, for the total purchase price of P100,000.00. "It is alleged by the plaintiff that the agreement was that the plaintiff was to give a down payment of P10,000.00 to be followed by P20,000.00 and the balance of P70,000.00 would be paid in installments, the equal monthly amortization of which was to be determined as soon as the P30,000.00 down payment had been completed. It is further alleged that the plaintiff paid the down payment of P10,000.00 on November 29, 1962 as per receipt No. 207848 (Exh.A) and that when on January 8, 1964 he tendered to the defendant the payment of the additional P20,000.00 to complete the P30,000.00 the defendant refused to accept and that eventually it likewise refused to execute a formal deed of sale obviously agreed upon. The plaintiff demands P25,000.00 exemplary damages, P2,000.00 actual damages and P7,000.00 attorneys fees. "The defendant, in its Answer, denies that it has had any direct-dealings, much less, contractual relations with the plaintiff regarding the property in question, and contends that the alleged contract described in the document attached to the complaint as Annex A is entirely unenforceable under the Statute of Frauds; that the truth of the matter is that a portion of the property in question was being leased by a certain Socorro Velasco who, on November 29, 1962, went to the office of the defendant indicated her desire to purchase the lot; that the defendant indicated its willingness to sell the property to her at the price of P100,000.00 under the condition that a down payment of P30,000.00 be made, P20,000.00 of which was to be paid on November 31, 1962, and that the balance of P70,000.00 including interest at 9% per annum was to be paid on installments for a period of ten years at the rate of P5,381.32 on June 30 and December of every year until the same shall have been fully paid; that on November 29, 1962 Socorro Velasco offered to pay P10,000.00 as initial payment instead of the agreed P20,000.00 but because the amount was short of the alleged P20,000.00 the same was accepted merely as deposit and upon request of Socorro Velasco the receipt was made in the name of her brother-in-law the plaintiff herein; that Socorro Velasco failed to complete the down payment of P30,000.00 and neither has she paid any installments on the balance of P70,000.00 up to the present time; that it was only on January 8, 1964 that Socorro Velasco tendered payment of P20,000.00, which offer the defendant refused to accept because it had considered the offer to sell rescinded on account of her failure to complete the down payment on or before December 31, 1962. "The lone witness for the plaintiff is Lorenzo Velasco, who exhibits the receipt, Exhibit A, issued in his favor by the Magdalena Estate, Inc., in the sum of P10,000.00 dated November 29, 1962. He also identifies a letter (Exh. B) of the Magdalena Estate, Inc. addressed to him and his reply thereto. He testifies that Socorro Velasco is his sister-in-law and that he had requested her to make the necessary contacts with the defendant referring to the purchase of the property in question. Because he does not understand English well, he had authorized her to negotiate with the defendant in her own name. But even so, he had always accompanied her whenever she went to the office of the defendant, and as a matter of fact, the receipt for the P10,000.00 down payment was issued in his favor. The plaintiff also depends on Exhibit A to prove that there was a perfected contract to sell calling attention to the annotations therein as follows: Earnest money for the purchase of Lot 15, Block 7, Psd-6129, Area 2,059 square meters including improvements thereon P10,000.00. At the bottom of Exhibit A the following appears: Agreed price: P100,000.00, P30,000.00 down payment, bal. in 10 years. To prove that the Magdalena Estate, Inc. had been dealing all along with him and not with his sister-in-law and that the Magdalena Estate, Inc. knew very well that he was the person interested in the lot in question and not his sister-in-law, the plaintiff offers in evidence five checks all drawn by him in favor of Magdalena Estate, Inc. for payment of the lease of the properly. . . "There does not seem to be any dispute regarding the fact that the Velasco family was leasing this property from the Magdalena Estate, Inc. since December 29, 1961; that the Velasco family sometime in 1962 offered to purchase the lot as a result of which Lorenzo Velasco thru Socorro Velasco made the P10,000.00 deposit or, in the language of the defendant earnest money or down payment as evidenced by Exhibit A. The only matter that remains to be decided is whether the talks between the Magdalena Estate, Inc. and Lorenzo Velasco either directly or thru his sister-in-law Socorro Velasco ever ripened into a consummated sale. It is the position of the defendant (1) that the sale was never consummated and (2) that the contract is unenforceable under the Statute of Frauds. The court a quo agreed with the respondents (defendant therein) contention that no contract of sale was perfected because th e minds of the parties did not meet "in regard to the manner of payment." The court a quos appraisal of this aspect of the act ion below is correct. The material averments contained in the petitioners complaint themselves disclose a lack of complete "agreement in regard to the manner of payment" of the lot in question. The complaint states pertinently:jgc:chanrobles.com.ph "4. That plaintiff and defendant further agreed that the total down payment shall be P30,000.00, including the P10,000.00 partial payment mentioned in paragraph 3 hereof, and that upon completion of the said down payment of P30,000.00, the balance of P70,000.00 shall be paid by the plaintiff to the defendant in 10 years from November 29, 1962;

"5. That the time within which the full down payment of the P30,000.00 was to be completed was not specified by the parties but the defendant was duly compensated during the said time prior to completion of the down payment of P30,000.00 by way of lease rentals on the house existing thereon which wa s earlier leased by defendant to the plaintiffs sister -in-law, Socorro J. Velasco, and which were duly paid to the defendant by checks drawn by plaintiff."cralaw virtua1aw library It is not difficult to glean from the aforequoted averments that the petitioners themselves admit that they and the respondent still had to meet and agree on how and when the down-payment and the installment payments were to be paid. Such being the situation, it cannot, therefore, be said that a definite and firm sales agreement between the parties had been perfected over the lot in question. Indeed, this Court has already ruled before that a definite agreement on the manner of payment of the purchase price is an essential element in the formation of a binding and enforceable contract of sale. 3 The fact, therefore, that the petitioners delivered to the respondent the sum of P10,000 as part of the down-payment that they had to pay cannot be considered as sufficient proof of the perfection of any purchase and sale agreement between the parties herein under article 1482 of the new Civil Code, as the petitioners themselves admit that some essential matter the terms of payment still had to be mutually covenanted. ACCORDINGLY, Makalintal, Zaldivar, J., Fernando, J., concurs the instant Actg. C.J., in did the petition i9 hereby denied. and opinion not of No pronouncement Esguerra, JJ., Mr. take Justice as to costs. concur. Teehankee. part.

Makasiar dissenting

Barredo, J.: The petitioners having clearly and without sufficient justification failed to prosecute their appeal within the period allowed by the rules, I vote to deny the petition, and consistently with my view already expressed on previous occasions, any discussion of the merits of the appeal is unwarranted, particularly, in instances like the present, wherein the same does not appear to me, upon cursory examination to be beyond doubt. Antonio, J., concurs on the basis of the first ground but reserved his opinion on the merits of the appeal

[G.R.

No.

L-54886.

September

10,

1981.]

REPUBLIC OF THE PHILIPPINES, Petitioner, v. THE HONORABLE COURT OF APPEALS (Special Second Division), COURT OF FIRST INSTANCE OF BULACAN, TURANDOT, TRAVIATA, MARCELITA, MARLENE, PACITA, MATTHEW, VICTORIA and ROSARY, all surnamed ALDABA, Respondents. Solicitor General Estelito P. Mendoza, Assistant Solicitor General Eulogio Raquel-Santos and Solicitor Wilfredo D. Reyes for Petitioner. Felipe SYNOPSIS In an expropriation proceeding initiated by petitioner over a 15,000 sq. meter lot of private respondents situated in Barrio Tikay, Malolos, Bulacan, the trial Court fixed the just compensation of the land at P30.00 per sq. meter or a total of P450,000. Petitioner filed a notice of appeal and a motion for extension of 30 days from January 17, 1979 within which to file a record on appeal which was granted by the lower Court. On February 13, 1979, the trial Court allowed petitioner to borrow the records of the case and granted it a second extension of 30 days from February 17, 1979 to file the said record on appeal. A third and fourth motions for extension for a total of 60 days were also granted by the lower Court. On June 7, 1979 when its motion dated May 17, 1979 for a fifth extension of 30 days from May 18, 1979 has not been acted upon by the trial court, petitioner filed its record on appeal. On August 13, 1979, the lower court dismissed the appeal on the ground that the motion dated May 17, 1979 was posted late as shown by the date stamped on the envelope containing the motion for extension. The Court of Appeals sustained said dismissal order. Reiterating its claim that the motion dated May 17, 1979 was filed on time as shown by a certification of the postmaster, petitioner filed the instant recourse. The Supreme Court held that the respondent Court of Appeals gravely abused its discretion in affirming the questioned orders of the trial Court since a delay of one working day does not justify the outright dismissal of the appeal and that public interest warrants the suspension of the rules on the timeliness of the appeal. Disputed orders set aside and the trial court ordered to approve petitioners record on appeal and to elevate the same to the Hon. Intermediate Appellate Court. Alvarez for Private Respondents.

SYLLABUS

1. REMEDIAL LAW; CIVIL PROCEDURE; APPEAL; DISMISSAL; PROVISIONS OF THE RULES OF COURT THEREON. Section 13, Rule 41 provides that where the notice of appeal, appeal bond or record on appeal are not filed within the period of time herein provided, the appeal shall be dismissed; and Section 14, Rule 41 reads: A motion to dismiss an appeal on any of the grounds mentioned in the preceding section may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court. 2. ID.; ID.; ID.; RECORD ON APPEAL; DELAY OF ONLY ONE WORKING DAY IN FILING THE SAME DOES NOT JUSTIFY OUTRIGHT DISMISSAL OF APPEAL. A delay of only one working day in filing the record on appeal does not justify the outright dismissal of the appeal of petitioner especially so in the light of the undisputed fact that petitioner had already filed with the lower court the record on appeal at the time the questioned dismissal order was issued by the lower court. 3. ID.; ID.; ID,; ID.; ID.; POWER OF THE COURT TO SUSPEND ITS OWN RULES. A special circumstance which is the subject of one of the main issues raised by petitioner in its appeal warrants US to exercise once more OUR exclusive prerogative to suspend OUR own rules or to exempt a particular case from its operat ion as in the recent case of Republic of the Philippines v. Court of Appeals, Et. Al. (83 SCRA 459, 478-480 [1978]) thus.." . . The Rules have been drafted with the primary objective of enhancing fair trials and expediting justice. As a corollary, if their application and operation tend to subvert and defeat instead of promote and enhance it, their suspension is justified . . ."cralaw virtua1aw library 4. ID.; EVIDENCE; JUDICIAL NOTICE; POST OFFICE PRACTICE, NOT COVERED THEREBY. The prevailing practice in post offices "that registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the office" is

not covered by any of the specific instances cited in Section 1 of Rule 129 on judicial notice. Neither can it be classified under "matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. . ."cralaw virtua1aw library 5. ID.; ID.; ID.; PROPER SUBJECT THEREOF. For a matter to be taken judicial notice of by the courts of law, it must be a subject of common and general knowledge. In other words, judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification. 6. ID.; ID.; ID.; POWER TO TAKE JUDICIAL NOTICE MUST BE EXERCISED WITH CAUTION. The doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative (31 CJS 522; Martin, Rules of Court 38, Second Edition).

DECISION

MAKASIAR, J.:

Petitioner, through this petition for review by certiorari, seeks to annul and set aside the respondent Court of Appeals April 29, 1980 decision and August 15, 1980 resolution in CA-G.R. No. 10081-SP, entitled "Republic of the Philippines versus Hon. Roque Tamayo, Et. Al." a special action forcertiorari, prohibition and mandamus sustaining the lower courts action in dismissing petitioners appeal as not having been perfected on time. The root case is an expropriation proceedings initiated by the petitioner over a 15,000 square meter lot of private respondents situated in Barrio Tikay, Malolos, Bulacan, docketed in the lower court as Civil Case No 525, entitled "Republic of the Philippines v. Turandot Aldaba, Et. Al." The subject parcel of land is needed by the petitioner to set up a permanent site for the Bulacan Area Shop, Bureau of Equipment, Department of Public Highways, a public purpose authorized by law to be undertaken by the Ministry of Public Highways. On March 2, 1978, the lower court issued a writ of possession placing the petitioner in possession of the land in question, upon its deposit of the amount of P7,200.00 as provisional value. On March 31, 1978, counsel for private respondents filed a motion praying for the creation of a three (3)-man committee in accordance with Section 5, Rule 67 of the Rules of Court, to study and submit a report as to the just and reasonable compensation for the parcel of land subject of expropriation. On July 31, 1978, the lower court issued an order naming the chairman and members of the committee of three. On November 12, 1978, the three-man committee submitted a joint report to the lower court, recommending that the just compensation of the expropriated land be fixed at P50.00 per square meter. In this petition, the Solicitor General claims that he was not served copies of the aforementioned March 31, 1978 motion of private respondents, July 31, 1978 order of the respondent lower court and the November 17, 1978 report of the three-man committee. The records reveal that the Solicitor General authorized the provincial fiscal of Bulacan to represent him in that proceedings (pp. 11-12, C.A. rec.). Parenthetically, private respondents in their comment to this petition, alleged "that the Provincial Fiscal, being duly authorized by the office of the Solicitor General to represent the latter in this case, the court merely furnished the office of the Provincial Fiscal with all the pleadings and other papers of the case" (p. 53, rec.). On December 18, 1978, the Solicitor General received a copy of the lower courts order dated December 8, 1978 . The order reads in part:jgc:chanrobles.com.ph "The joint report filed by the three-man committee charged with the determination of the just compensation of the property herein sought to be condemned is hereby APPROVED, such that the just compensation of the land described in Paragraph II of the Complaint is fixed at Thirty Pesos (P30.00) per square meter. "The defendant may now withdraw from the Philippine National Bank, Malolos, Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways under Account No. 35109, said sum to be part of the total amount of P450,000.00 (15,000 square meters at P30.00 per square meter), which the Department of Public Highways, Third Regional Equipment Services, Malolos, Bulacan, shall, and is hereby ordered, to pay to the herein defendants as just compensation for the subject property."cralaw virtua1aw library On December 22, 1978, the Solicitor General filed through the mail a notice of appeal, as well as a first motion for extension of time of 30 days from January 17, 1979 within which to file record on appeal. The extension sought for was granted by the lower court in its order dated January 17, 1979.

On February 13, 1979, the lower court, acting upon petitioners manife station filed on January 9, 1979 and motion filed on February 8, 1979, allowed the Solicitor General to borrow the records of the expropriation case "under proper receipt, the Clerk of Court taking the necessary steps to index and number the pages thereof and to ensure its integrity; and granted a second extension of thirty (30) days from February 17, 1979, within which to file the record on appeal of the Republic of the Philippines" (p. 79, C.A. rec.). Again, on March 22,1979, the lower court granted petitioners third motion for an extension of thirty (30) days from March 19, 1979 within which to file its record on appeal (p. 80, C.A. rec.). Subsequently, the lower court, in an order dated April 24, 1980, acted favorably upon petitioners motion for a fo urth extension of thirty (30) days from April 19, 1979 within which to file its record on appeal and petitioners request that the records of t he expropriation case be forwarded to the Solicitor General (p. 81, C.A. rec.). In a motion dated May 17,1979, the petitioner, invoking heavy pressure of work, asked for a fifth extension of thirty (30) days from May 18, 1979 or until June 17, 1979, within which to file its record on appeal (pp. 82-83, C.A. rec.). On June 7, 1979, when its motion for a fifth extension has not yet been acted upon by the lower court, petitioner filed its record on appeal (p. 13, rec.). On June 15, 1979, eight (8) days after petitioner had filed its record on appeal, private respondents filed an opposition to the aforesaid fifth motion for extension (pp. 85-87, C.A. rec.), and an objection to petitioners record on appeal (pp. 88 -89, C.A. rec.), on the ground that the same was filed beyond the reglementary period, because petitioners motion dated May 17, 1979 for extension to file record on appeal was mailed only on May 21, 1979 (pp. 13-14, rec.). On June 27, 1979, petitioner filed its opposition to the aforesaid objection to its record on appeal, contending that the said May 17, 1979 motion for extension of time was actually mailed on May 18, 1979, which was the last day of the extended period allowed by the lower courts order of April 24, 1979 (p. 14, rec.). In an order dated August 13, 1979 but received by the Solicitor General only on September 10, 1979, the lower court dismissed the appeal of petitioner on the ground that the fifth motion for extension of time dated May 17, 1979 within which to file the record on appeal and the record on appeal were filed out of time. The lower court found that the said fifth motion for extension of time was actually mailed on May 21, 1979 and not on May 18, 1979 as claimed by petitioner (pp. 14, 34-35, rec.). The order of dismissal reads:chanrobles virtual lawlibrary "Upon consideration of the approval of the record on appeal filed by the Republic and acting on the manifestation filed on July 25, 1979 by the defendants thru counsel, the Court finds no merit in the same. "The last motion of the Office of the Solicitor General for extension of time to file record on appeal was on May 17, 1979, seeking for an additional extension of thirty (30) days from April 18, 1979. "The thirty-day period requested by the Solicitor General from May 18, 1979 therefore expired on June 17, 1979. But this last request for extension was not acted upon by the court. The Republic of the Philippines had therefore only up to May 17, 1979, within which to file record on appeal. The record on appeal was filed only on June 11, 1979 (should be June 7), which is well beyond the period to file record on appeal. Moreover, the last motion for extension which was not acted upon by the Court had only been filed on May 21, 1979 as shown by the stamp of the Manila Post Office, the date of the mailing which should be reckoned with in computing periods of mailed pleadings, and received by the Court on June 22, 1979. Both the motion for extension filed on May 21, 1979 and the record on appeal filed on June 11, 1979 (should be June 7), have therefore been filed beyond the reglementary period of 30 days from April 18, 1979, or up to May 18, 1979. ". . ." (pp. 34-35, rec.).

On October 4, 1979, petitioner filed a motion for reconsideration claiming that "1) there is merit in plaintiffs appeal from this Honorable Courts order of December 8, 1978, a copy of which was received on December 18, 1978; 2) plaintiffs May 17, 1979 motion for 30 days extension from May 17, 1979 to file Record on Appeal, was actually filed on May 18, 1979; and 3) the Honorable Court denied plaintiffs appeal without first resolving plaintiffs motion for a 30 -day extension, from May 18, 1979 to file Record on Appeal" (pp. 14-15, rec.; pp. 52-66, C.A. rec.). Relative to the timeliness of the filing of its fifth motion for extension of time, petitioner submitted a certification of the Postmaster of the Central Office of the Bureau of Posts, Manila, that registered letter No. 3273 containing the aforesaid motion addressed to the Clerk of Court of the Court of First Instance of Malolos, Bulacan."

. . was received by this Office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15" (p. 66, C.A. rec.). On the merits of the dismissed appeal, petitioner stressed that the creation of a three-man committee to fix the just compensation of the expropriated lot was without legal basis, because Section 5, Rule 6 of the Rules of Court upon which the same was anchored had already been repealed by the provisions of Presidential Decree No. 76 which took effect on December 6, 1972 under which the court has no alternative but to base the just compensation of expropriated property upon the current and fair market value declared by the owner or administrator, or such market value as determined by the assessor, whichever is lower. On October 31, 1979, the lower court denied petitioners motion for reconsideration for lack of merit (pp. 36 -40, rec.; pp. 28-32, C.A. rec.), thus:jgc:chanrobles.com.ph "The grounds advanced by the plaintiff Republic of the Philippines have been fully taken into account by the Court in its order of August 13, 1979, particularly the late filing of the record on appeal. Plaintiffs counsel should not have assumed that the m otion for extension of the period for filing of the record on appeal would be granted. "The plaintiffs counsels belief that their May 17, 1979 motion would be granted cannot be the basis for the plaintiff to be absolved of the effect of late filing of the record on appeal, considering that the Court had liberally extended for five times, **, each for thirty (30) days, the filing of said record. This Court considers said extensions as sufficient time for the counsel for plaintiff to prepare its record on appeal. Plaintiffs counsel, with all the resources it has, to protect its clients interests, should have been vigilant enough not to assume and should not expect that their motion for extension would be granted. It is not correct therefore that only three days had elapsed after the reglementary period to perfect appeal because the reglementary period ended not on June 17, 1979, but on May 17, 1979, because the last motion for extension was not granted by the Court. "The Court deplores the insinuation of plaintiffs counsel that it took hook, line and sinker, defendants allegation about the fact of mailing. It has carefully gone over the record and found that the date of mailing of the motion for extension is May 21, 1979, as shown by the stamp Registered, Manila, Philippines, May 21, 1979 appearing on the covering envelope containing the motion for extension. Therefore, the explanation contained in Annex B of the motion for reconsideration to the effect that registered Letter No. 3273, addressed to the Clerk of Court, Court of First Instance of Malolos, Bulacan, was received by the Manila Post Office late Friday afternoon, May 18, 1979, but was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday), under the Manila-Malolos Bill No. 202, page 1, line 15, can not overturn the fact of date of actual mailing which is May 21, 1979, because it is of judicial knowledge that a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the post office. The letter Annex B of the motion therefore lacks sufficient weight and persuasiveness to prove the fact that the letter asking for another extension was actually filed on May 18, 1979, and not May 21, 1979. "Regarding the creation of a three-man committee which according to plaintiff the Court sorely lacked the prerogative to create pursuant to Sec. 5, Rule 67 of the Rules of Court because it has been superseded by the provisions of PD 76 which definitely fixed the guidelines for the determination of just compensation of private property acquired by the State for public use, the Court had to resort to this old method of determining fair market value, which is defined as:chanrob1es virtual 1aw library The "current and fair market value" shall be understood to mean the "price of which a willing seller would sell and a willin g buyer would buy neither being under abnormal pressure. because, firstly; the plaintiff failed to show evidence thereof as declared by the owner or administrator of the property under the provisions of PD 76, or the valuation or assessment of the value as determined by the assessor, whichever is lower. Hence, for all intents and purposes, the findings of the three-man committee have become the basis of the valuation, Paragraph III of the complaint notwithstanding, because allegation in the complaint, unless proved, are not binding as evidence. "Presidential Decree No. 42, from its very caption, which reads:chanrob1es virtual 1aw library

PRESIDENTIAL DECREE NO. 42 AUTHORIZING THE PLAINTIFF IN EMINENT DOMAIN PROCEEDINGS TO TAKE POSSESSION OF THE PROPERTY INVOLVED UPON DEPOSITING THE ASSESSED VALUE FOR PURPOSES OF TAXATION does not fix the value of the property to be expropriated, but rather for the purpose of taking possession of the property involved, the assessed value for purposes of taxation is required to be deposited in the Philippine National Bank or any of its branches or

agencies. This is borne out by the first Whereas of the decree which finds the existing procedure for the exercise of the right of eminent domain not expeditious enough to enable the plaintiff to take or enter upon the possession of the real property involved, when needed for public purposes. The second Whereas states that the measure is in the national interest in order to effect the desired changes and reforms to create a new society and economic order for the benefit of the country and its people . "The body of the law does not specify the valuation of the property, but rather the method by which seizure of the property could be done immediately, and that is by the act of depositing with the Philippine National Bank, in its main office or any of its branches or agencies, an amount equivalent to assessed value of the property for purposes of taxation, to be held by said bank subject to the orders and final disposition of the Court. "Only in this respect are the provisions of Rule 67 of the Rules of Court and or any other existing law contrary to or inconsistent therewith repealed. If at all, the decree, PD 42, fixes only a provisional value of the property which does not necessarily represent the true and correct value of the land as defined in PD 76. It is only provisional or tentative to serve as the basis for the immediate occupancy of the property being expropriated by the condemn or. This is in line with the recent decision of the Honorable Supreme Court promulgated on October 18, 1979, in the case of the Municipality of Daet, Petitioner, v. Court of Appeals and Li Seng Giap & Co., Inc., Respondents, G.R. No. L-45861, which states in part:chanrob1es virtual 1aw library . . ., it can already be gleaned that said decree fixes only the provisional value of the property. As a provisional value, it does not necessarily represent the true and correct value of the land. The value is only "provisional" or "tentative" to serve as the basis for the immediate occupancy of the property being expropriated by the condemnor. ". . ." (pp. 28-32, rec.).

Dissatisfied with the aforesaid orders of the lower court, petitioner on December 3, 1979 filed with the respondent Court of Appeals a petition for certiorari, prohibition and mandamus with preliminary injunction in CA-G.R. No. 10081-Sp, entitled: Republic of the Philippines versus Court of First Instance of Bulacan, Branch VI, presided over by Hon. Roque Tamayo, Et Al., whereby it prayed that: "1) This petition be given due course; 2) A writ of preliminary injunction and/or temporary restraining order be issued ex-parte restraining respondent court from executing, enforcing and/or implementing its Order dated December 8, 1978, . . . and its orders dated August 13, 1979 and October 31, 1979 . . .; 3) After hearing on the merits, judgment be rendered: *a+ annulling and setting aside respondent courts Orders of August 13, 1979 . . .; *b+ Directing and compelling respondent c ourt to allow and approve petitioners record on appeal and to certify and elevate the same to this Honorable Court; *c+ Declaring the writ of preliminary injunction and/or restraining order herein prayed for to be made permanent and perpetual" and for such other relief as the Court may deem just and equitable in the premises. On December 14, 1979, respondent Court of Appeals issued a temporary restraining order to maintain the status quo, and required private respondents to file their comment (pp. 67-68, C.A. rec.). On January 2, 1980, private respondents filed the required comment (pp. 69-91, C.A. rec.).

On April 29, 1980, respondent Court of Appeals dismissed petitioners action and set aside its December 14, 1979 restraining order. The respondent Court of Appeals ruled that "A review of the whole record convinces Us that the challenged orders are not a capricious and whimsical exercise of judgment as to constitute a grave abuse of discretion . . . ." (pp. 44-45, rec.). The Solicitor General received a copy of the aforesaid decision on May 19, 1980. On May 30, 1980, the Solicitor General sought a thirty-day extension from June 3, 1980 within which to file a motion for reconsideration (pp. 106-107, C.A. rec.). On June 20, 1980, the respondent Court of Appeals granted the extension sought (p. 108, C.A. rec.).cralawnad On June 23, 1980, the Solicitor General filed his motion for reconsideration on the ground that, "The Honorable Court of Appeals was misled by private respondents counsel in holding that petitioners motion for exten sion of time to file record on appeal dated May 17,1979 . . . was filed on May 21, 1979, not on May 18, 1979 (which was the last day within which to file petitioners re cord on appeal); hence, this Honorable Court was not correct in ARRIVING AT THE CONCLUS ION THAT PETITIONERS AFORESAID MOTION FOR EXTENSION was filed beyond the reglementary period" (pp. 109-118, C.A. rec.). Petitioner also moved to set the case for oral argument (p. 119, C.A. rec.). Petitioner vehemently insisted as it did in the main action (pp. 10-12, C.A. rec.), that it is erroneous to conclude that its. ". . . .motion for extension dated May 17, 1979 . . . was filed on May 21, 1979 and not on May 18, 1979 which is the last day of the extended period fixed by respondent court for petitioner to file its record on appeal. It is submitted that the motion for extension

dated May 17, 1979 .. was actually filed on May 18, 1979 as there is incontrovertible proof that the same was in fact mailed on May 18, 1979 via registered mail (Registry Letter 3273) at the Manila Central Office of the Bureau of Posts. A letter dated September 25, 1979 of Delfin Celis, postmaster of Central Post Office, Manila, to the Chief of the Records Section of the Office of the Solicitor General shows that envelope containing the May 17, 1979 motion was received by the Post Office of Manila on May 17, 1979. Said letter states:chanrob1es virtual 1aw library In compliance to your request in your letter dated September 20, 1979 in connection with registered letter No. 3273 addressed to the Clerk of Court, Court of First Instance Malolos, Bulacan, please be informed that it was received by this Office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19 to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15. "Thus, it is conceded that the envelope containing the registered letter of petitioners motion for extension to file record on appeal dated May 17, 1979 has on its face the date May 21, 1979 stamped thereon . . . If the aforesaid proof of mailing presented by private respondent is taken into account solely without taking into consideration the letter of Postmaster Delfin Celis dated September 25, 1979 . . ., then it could be said that petitioners motion for extension to file record on appeal dated May 17, 1979 was filed out of time. However, the certification of the Postmaster stating that the letter was actually received in the Post Office on May 18, 1979 conclusively shows that such date is the date of mailing, and the date May 21, was thus wrongly stamped thereon by an employee of the Post Office. Petitioner should not be blamed for the mistake committed by the personnel of the Post Office of stamping May 21, 1979 on the envelope of said Registered Letter No. 3273. Petitioners counsel had nothing to do with the aforesaid mistake that had been committed by the personnel of the Post Office. "In resume, it can be said with certainty that the records of the Office of the Solicitor General and the Post Office of Manila clearly show that the petitioners motion for extension dated May 17, 1979 was seasonably filed on May 18, 1979 as the latter was actually the date of its mailing and therefore said date should be deemed as the actual date of its filing before respondent court. "At this juncture, it may be stated that undersigned counsel were constrained to seek extension to file record on appeal because of the pressure of work and their need to borrow the records of the case from the trial court. Thus, as early as January 9, 1979, they were borrowing the expediente of the case so as to enable them to prepare an accurate record on appeal. Petitioner in its motion and manifestation of January 9, 1979 stated why it wanted to borrow the expediente of the case at bar, as follows:chanrob1es virtual 1aw library 3. The records of the undersigned counsel may not be complete as it had authorized the Provincial Fiscal of Bulacan to appea r in the hearings before this Honorable Court, thus it is possible that the Office of the Solicitor General may not have been furnished copies of Orders of this Honorable Court, as well as pleadings that may have been furnished the Provincial Fiscal of Bulacan. 4. This being the case, undersigned counsel can not prepare an accurate and concise record on appeal, hence it is necessary that the records of the case be lent to the undersigned counsel pursuant to Sec. 14, Rule 136 of the Revised Rules of Court (pp. 6-7, Motion for Reconsideration [in the CFI of Bulacan]; see pp. 52, 57-58, C.A. rec.). "On April 10, 1979, undersigned counsel reiterated their desire to borrow said expediente but it was not until May 3, 1979 that the expediente of the case consisting of 164 pages were received by the Docket Section of the Office of the Solicitor General. It was only on May 16, 1979 that said expediente were delivered to undersigned Solicitor, thus compelling him to prepare the May 17, 1979 motion. And for the same reasons, it was only on June 7, 1979 that the record on appeal was filed, which was well within the 30 days extension from May 18, 1979 prayed for in petitioners motion of May 17, 1979. ". . ." (pp. 109-113, C.A. rec.).

On July 14, 1980, respondent Court of Appeals resolved to require private respondents to comment on the motion for reconsideration within ten (10) days from receipt of the resolution (p. 121, C.A. rec.). Earlier, however, or on July 8, 1980, private respondents mailed their opposition to the motion for reconsideration and their waiver to appear for oral argument (pp. 122-123, C.A. rec.). Both were received by the Court of Appeals on July 14, 1980, the very day the resolution requiring private respondents to comment on the motion for reconsideration, was released by the Court of Appeals. In the petition before this Court, the Solicitor General laments the fact that no copies of the aforesaid pleadings of the private respondents were ever served on and received by him (p. 18, rec.). Indeed, said pleadings of the private respondents do not show nor indicate that copies thereof were served on the Solicitor General (pp. 121-123, C.A. rec.). In the aforesaid opposition of private respondents, they claimed that:jgc:chanrobles.com.ph

"The undersigned counsel merely stated that the date of filing the fifth motion for extension to file record on appeal by the office of the Solicitor General was on May 21, 1979, as shown on the envelope bearing the stamp of the Manila Post Office, which clearly reads May 21, 1979 and the undersigned counsel brought to the attention of the lower court that the date of filing of this fifth extension was the date shown when the mailing was made as stamped on the envelope. That there can be no other date than the date stamped on the envelope made by the Manila Post Office when the fifth request for extension of filing the record on appeal was mailed. This fact of the date of mailing, May 21, 1979, was stamped on the envelope. "The office of the Solicitor General further alleged:chanrob1es virtual 1aw library

If . . . taken into account solely without taking into consideration the letter of the Post Master Delfin Celis, dated Septe mber 25, 1979 . . ., then it could be said that petitioners motion for extension to file record on appeal, dated May 17, 1979, was filed out of time. "From the above statement of the Office of the Solicitor General there can never be any abuse in the exercise of judgment as to constitute a grave abuse of discretion. The lower court chose to rely on the date stamped on the envelope by the Manila Post Office rather than considering as paramount a mere letter from the Manila Post Office employee, Delfin Celis. "x x x

"If we are to believe that the stamped date, May 21, 1979, was wrongly stamped by an employee of the Manila Post Office, then thousands of mails received and/or mailed on that date were all wrongly stamped. How can the lower court believe that the date May 21, 1979, was merely erroneously stamped on the envelope? The lower courts finding of f acts on this regard, must also be sustained. "The other reason given by the Office of the Solicitor General was that they have asked for the complete record of the case but that it was only forwarded to their office sometime on May 3, 1979. "The record of the case cannot be easily forwarded to the Solicitor General because there was the case of motion for intervention filed in connection with the case. "The failure on the part of the court to immediately comply with the request of the office of the Solicitor General cannot be a justifying reason for failure to comply with the rules of court and of the order of filing the record on appeal within the reglementary period, or time given by the court. "The office of the Solicitor General gave the Provincial Fiscal of Bulacan the power to handle the case for (them) and the office of the Provincial Fiscal was furnished with all pleadings, orders and other papers of the case. The record therefore of the Office of the Provincial Fiscal can easily be available to them. Besides no less than five (5) extensions of time had been requested and the last one was not acted upon by the Court and yet the Office of the Solicitor General filed the Record on Appeal only on June 17, 1979 (should be June 7, 1979), which is far beyond the reglementary period which was May 17, 1979 (should be May 18, 1979). ". . ." (pp. 123-125, C.A. rec.).

On August 15, 1980, respondent Court of Appeals issued a resolution denying the motion for reconsideration, thus:jgc:chanrobles.com.ph "Acting on the Motion for Reconsideration dated June 23, 1980 filed by the Solicitor General and the opposition thereto filed on July 8, 1980 by the respondents and considering that the said motion does not cite new matters which have not been considered in the decision promulgated on April 29, 1980, the said motion is hereby denied. "Petitioners Motion to Set Case for Oral Argument dated June 23, 1980 is likewise DENIED."cralaw virtua1aw library Aforesaid Hence, resolution was received by the this Solicitor General on August 20, 1980. recourse.

Petition was filed on October 24, 1980; two extensions of time of thirty (30) days each having been previously asked by and granted to petitioner Republic of the Philippines. On October 29, 1980, WE resolved to require respondents to comment on the petition within ten (10) days from notice of the

resolution and at the same time issued a temporary restraining order enjoining respondents from executing, enforcing and/or implementing the decision dated April 28,1980 issued in CA-G.R. No. SP-10081, entitled "Republic of the Philippines, Petitioner, versus Hon. Roque Tamayo, etc., Et Al., Respondents" of the Court of Appeals, and the Order dated December 8, 1978 issued in Civil Case No. 5257-M, entitled "Republic of the Philippines, Plaintiff, versus Turandot Aldaba, Et Al., Defendants" of the Court of First Instance of Bulacan, Branch VI, at Malolos, Bulacan (pp. 49-51, rec.). On November 14, 1980, private respondents filed their comment to the petition contending that no abuse of discretion or act in excess of jurisdiction exists as to require a review by this Honorable Court (pp. 52-64, rec.). On November 24,1980, WE resolved to give due course to the petition and to declare the case submitted for decision (p. 65, rec.). But on December 22, 1980, private respondents filed a motion, praying for the outright dismissal of the instant petition on the main ground that the decision of the respondent Court of Appeals sought to be reviewed has already become final and executory, hence, unappealable, because this petition was filed out of time as the petitioners motion for reconsideration in the Court of Appeals was pro forma (pp. 66-67, rec.). The main issue to be resolved in this case is whether or not respondent Court of Appeals itself committed a grave abuse of discretion in not finding that the respondent trial court committed a grave abuse of discretion in dismissing petitioners appeal.chanrobles virtual lawlibrary The questioned orders should be set aside.

I. It must be underscored that the basic provisions of the Rules of Court basis of the dismissal of the petitioners appeal by the Court of First Instance of Bulacan as sustained by the respondent Court of Appeals are Section 13, Rule 41: Where the notice of appeal, appeal bond or record on appeal are not filed within the period of time herein provided, the appeal shall be dismissed; and Section 14, Rule 41: A motion to dismiss an appeal on any of the grounds mentioned in the preceding section may be filed in the Court of First Instance prior to the transmittal of the record to the appellate court. The Court of First Instance of Bulacan dismissed herein petitioners appeal on the bases of the foregoing provisions upon its finding that the record on appeal of petitioner was filed out of time as it was filed only on June 7, 1979 or twenty (20) days after May 18, 1979, the last day of the appeal period as extended; petitioners fifth extension of time of thirty days from May 18, 1979, not having been favorably acted upon by the Court of First Instance of Bulacan upon its finding that the same was also filed late or three days after the last day of the extended appeal period. The implication of the questioned orders of the Court of First Instance is that since the fifth extension of time was filed out of time, no action may be taken thereon by it; hence, petitioner Republic had only up to May 18, 1979 within which to file the record on appeal. Consequently, the filing thereof only on June 7, 1979 was too late. The petitioner, however, herein contends as it did before the Court of First Instance of Bulacan and before the respondent Court of Appeals, that its fifth extension of time was actually filed on May 18, 1979, not on May 21, 1979 as found out by the Court of First Instance and Court of Appeals and in support thereof, pointed to the certification of the postmaster of the Central Office of the Bureau of Posts, dated September 25, 1979 (p. 47, rec.) to the effect that the said motion for extension of time as contained in registered mail No. 3273 addressed to the Clerk of Court of First Instance of Bulacan (Malolos)." . . was received by this office late Friday afternoon, May 18, 1979. The letter was not included in the only morning dispatch of May 19, to Bulacan and was dispatched May 21, 1979, Monday (May 20 being a Sunday) under the Manila-Malolos Bill No. 202, page 1, line 15."cralaw virtua1aw library But the Court of First Instance of Bulacan opined that said certification cannot override the prevailing practice in post offices "that a registered letter when posted is immediately stamped with the date of its receipt, indicating therein the number of the registry, both on the covering envelope itself and on the receipt delivered to the person who delivered the letter to the office" of which it took judicial notice. WE entertain grave doubts that the aforesaid post office practice is a proper subject of judicial notice.chanrobles.com.ph : virtual law library Section 1 of Rule 129 on judicial notice provides that "The existence and territorial extent of states, their forms of government and symbols of nationality, the law of nations, the admiralty and maritime courts of the world and their seals, the political constitution and history of the Philippines, the official acts of the legislative, executive, and judicial departments of the Philippines, the laws of nature, the measure of time, the geographical divisions and political history of the world and all similar matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions,

shall be judicially recognized by the court without the introduction of proof; but the court may receive evidence upon any of the subjects in this section stated, when it shall find it necessary for its own information, and may resort for its aid to appropriate books or documents or reference."cralaw virtua1aw library Undoubtedly, the post office practice of which the Court of First Instance took judicial notice is not covered by any of the specific instances cited above. Neither can it be classified under "matters which are of public knowledge, or are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions . . ." For a matter to be taken judicial notice of by the courts of law, it must be a subject of common and general knowledge. In other words, judicial notice of facts is measured by general knowledge of the same facts. A fact is said to be generally recognized or known when its existence or operation is accepted by the public without qualification or contention. The test is whether the fact involved is so notoriously known as to make it proper to assume its existence without proof. The fact that a belief is not universal, however, is not controlling for it is very seldom that any belief is accepted by everyone. It is enough that the matters are familiarly known to the majority of mankind or those persons familiar with the particular matter in question (20 Am Jur 49-50; Martin, Rules of Court 37, Second Edition). Furthermore, a matter may be personally known to the judge and yet not be a matter of judicial knowledge and vice versa, a matter may not be actually known to an individual judge, and nevertheless be a proper subject of judicial cognizance.chanrobles virtual lawlibrary The post office practice herein involved is not tested by the aforestated considerations, a proper matter of judicial notice. Moreover, the certification issued by the very postmaster of the post office where the letter containing the questioned motion for extension of time was posted, is a very clear manifestation that the said post office practice is not of unquestionable demonstration. Indeed, the doctrine of judicial notice rests on the wisdom and discretion of the courts. The power to take judicial notice is to be exercised by the courts with caution; care must be taken that the requisite notoriety exists; and every reasonable doubt upon the subject should be promptly resolved in the negative (31 CJS 522; Martin, Rules of Court 38, Second Edition). It is therefore manifest from the foregoing that the Court of First Instance of Bulacan committed a palpable error amounting to a grave abuse of discretion in relying on the alleged post office practice aforementioned over the uncontroverted certification of the postmaster earlier referred to. That being so, the dismissal of petitioners appeal therefore lacks factual basis. It should have acted on petitioners fifth motion for extension of time which WE find to have been filed on time. The records reveal that a favorable action on the aforesaid fifth motion for extension of time is warranted by the following circumstances: (1) the record on appeal was filed by petitioner even before the lower court could consider the questioned motion for extension of time; and private respondents objected to the said motion only after petitioner had filed the record on appeal; (2) the order of the lower court granting the fourth extension of time did not contain any caveat that no further extension shall be allowed; (3) the fact that the CFI records of the case were sent to the Solicitor General only on May 3, 1979 and ostensibly handed to the Solicitor assigned to the case only on May 16,1979 or barely two (2) days before the expiration of the extended appeal period; and (4) pressure of work in the undermanned Office of the Solicitor General who is the counsel of the National Government and all other governmental agencies and instrumentalities; and (5) and the unconscionable amount of P450,000.00 for a parcel of 1.5 hectares situated in a barrio of Malolos, Bulacan, with only a provisional value of P7,200.00 obviously based upon its assessed value appearing on its tax declaration. No sugar, rice or coconut land of only 15,000 square meters could command such a fabulous price. WE therefore rule that the respondent Court of Appeals gravely abused its discretion in affirming the disputed orders of the Court of First Instance of Bulacan. II. But even assuming that the motion for extension to file record on appeal dated May 17, 1979 was filed not on May 18, 1979 but on May 21, 1979 as claimed by private respondents, which is a delay of only one (1) working day, May 19 and 20 being Saturday, and Sunday, respectively, that circumstance alone would not justify the outright dismissal of the appeal of petitioner Republic of the Philippines, especially so in the light of the undisputed fact that petitioner had already filed with the lower court the record on appeal at the time the questioned dismissal order was issued by the lower court. For, as ruled in one case,." . . the delay of four days in filing a notice of appeal and a motion for an extension of time to file a record on appeal can be excused on the basis of equity and considering that the record on appeal is now with the respondent judge" (Ramos v. Bagasao, Et Al., G.R. No 51552, February 28, 1980, Second Division; Italics supplied). Moreover, WE have already liberalized in a number of cases the jurisprudence on the matter of perfection of appeals. For one, in De las Alas v. Court of Appeals (83 SCRA 200-216 [1978]), WE ruled that:cralawnad ". . . litigation should, as much as possible, be decided on their merits and not on technicality, and under the circumstances obtaining in this case, WE said in the case of Gregorio v. Court of Appeals (L-43511, July 23, 1976, 72 SCRA 120, 126), thus:chanrob1es virtual 1aw library

. . . Dismissal of appeals purely on technical grounds is frowned upon where the policy of the courts is to encourage hearing of appeals on their merits. The rules of procedure ought not to be applied in a very rigid, technical sense; rules of procedure are used only to help secure, not override, substantial justice. If a technical and rigid enforcement of the rules is made, their aim would be defeated. x x x

III. Moreover, a special circumstance which is the subject of one of the main issues raised by petitioner in its appeal warrants US to exercise once more OUR exclusive prerogative to suspend OUR own rules or to exempt a particular case from its operation as in the recent case of Republic of the Philippines v. Court of Appeals, Et. Al. (83 SCRA 459, 478-480 [1978]), thus: ". . .The Rules have been drafted with the primary objective of enhancing fair trials and expediting justice. As a corollary, if their application and operation tend to subvert and defeat instead of promote and enhance it, their suspension is justified. In the words of Justice Antonio P. Barredo in his concurring opinion in Estrada v. Sto. Domingo, (T)his Court, through the revered and eminent Mr. Justice Abad Santos, found occasion in the case of C. Viuda de Ordoverza v. Raymundo, to lay down for recognition in holding that " it is always in the power of the court (Supreme Court) to suspend its own rules or to except a particular case from its operation, whenever the purposes of justice require it . . . ." ( Emphasis ours). As emphasized by the Solicitor General, if the questioned orders are not annulled and set aside, its enforcement and implementation will result to the prejudice of, and irreparable injury to, public interest." This is so because the Government would lose its opportunity to assail the order of the lower court dated December 8, 1978, the dispositive portion of which reads, as follows:jgc:chanrobles.com.ph "x x x

The joint report filed by the three-man committee charged with the determination of the just compensation of the property herein sought to be condemned is hereby approved, such that the just compensation of the land described in Paragraph II of the Complaint is fixed at Thirty Pesos (P30.00) per square meter. The defendant may now withdraw from the Philippine National Bank, Malolos Branch, the sum of P7,200.00 deposited by the Third Regional Equipment Services, Department of Public Highways under Account No. 35109, said sum to be part of the total amount of 450,000.00 (15,000 square meters at P30.00 per square meter), which the Department of Public Highways, Third Regional Equipment Services, Malolos, Bulacan, shall, and is hereby ordered to pay to the herein defendants as just compensation for the subject property. SO ORDERED (pp. 3-4, Order dated December 8, 1978).

"It must be stressed at this stage that the Government would lose no less than P425,000.00 if the lower courts order of December 8, 1978 is not scrutinized on appeal. It must be stated that the lower court was without jurisdiction to create a three-man committee because Sec. 5, Rule 67 of the Revised Rules of Court was repealed by P.D. 76 which took effect on December 6, 1972, the salient features of which read, as follows:chanrob1es virtual 1aw library The "current and fair market value" shall be understood to mean the "price of which a willing seller would sell and a willing buyer would buy neither being under abnormal pressure. For purposes of just compensation in cases of private property acquired by the government for public use, the basis shall be the current and fair market value declared by the owner or administrator or such market value as determined by the assessor, whichever is lower. "Thus, from December 6, 1972, the effectivity date of PD 76, the just compensation to be paid for private property acquired by the government for public use is the current and fair market value declared by the owner or administrator or such market value as determined by the Assessor whichever is lower. Pursuant to said Decree, the governments obligation to private respondent would only be P24,376.00. The lower court thus had no jurisdiction to fix an amount of just compensation higher than P24,376.00. It follows therefore that the joint report submitted by the three-man committee created by the lower court could not serve as a legal basis for the determination of the just compensation of the property sought to be condemned . ". . ." (pp. 19-21, rec.).

IV. With respect to the motion to dismiss filed on December 22, 1980 by private respondents, WE find no merit therein. The contention of private respondents that the June 23, 1980 motion for reconsideration of petitioner with the Court of Appeals was pro forma is belied by the results obtained in this petition before US.

WHEREFORE, PETITION IS HEREBY GRANTED; THE DECISION DATED APRIL 29, 1980 AND THE RESOLUTION DATED AUGUST 15, 1980 OF THE RESPONDENT COURT OF APPEALS ARE HEREBY ANNULLED AND SET ASIDE; AND THE RESPONDENT COURT OF FIRST INSTANCE OF BULACAN IS HEREBY DIRECTED TO APPROVE PETITIONERS RECORD ON APPEAL AND TO ELEVATE THE SAME TO THE HONORABLE COURT OF APPEALS. NO COST. SO ORDERED. SECOND

DIVISION

[G.R.

No.

87434.

August

5,

1992.]

PHILIPPINE AMERICAN GENERAL INSURANCE CO., INC. and TAGUM PLASTICS, INC., Petitioners, v. SWEET LINES, INC., DAVAO VETERANS ARRASTRE AND PORT SERVICES, INC. and HON. COURT OF APPEALS, Respondents. De Lara, De Lunas & Rosales, for Petitioners.

Carlo L. Aquino for Sweet Lines, Inc.

DECISION

REGALADO, J.:

A maritime suit 1 was commenced on May 12, 1978 by herein petitioner Philippine American General Insurance Co., Inc. (Philamgen) and Tagum Plastics, Inc. (TPI) against private respondents Sweet Lines, Inc. (SLI) and Davao Veterans Arrastre and Port Services, Inc. (DVAPSI), along with S.C.I. Line (The Shipping Corporation of India Limited) and F.E. Zuellig, Inc., as co-defendants in the court a quo, seeking recovery of the cost of lost or damaged shipment plus exemplary damages, attorneys fees and costs allegedly due to defendants negligence, with the following factual backdrop yielded by the findings of the court below and adopted by respondent court:jgc:chanrobles.com.ph "It would appear that in or about March 1977, the vessel SS `VISHVA YASH belonging to or operated by the foreign common carrier, took on board at Baton Rouge, LA, two (2) consignments of cargoes for shipment to Manila and later for transhipment to Davao City, consisting of 600 bags Low Density Polyethylene 631 and another 6,400 bags Low Density Polyethylene 647, both consigned to the order of Far East Bank and Trust Company of Manila, with arrival notice to Tagum Plastics, Inc., Madaum, Tagum, Davao City. Said cargoes were covered, respectively, by Bills of Lading Nos. 6 and 7 issued by the foreign common carrier (Exhs. E and F). The necessary packing or Weight List (Exhs. A and B), as well as the Commercial Invoices (Exhs. C and D) accompanied the shipment. The cargoes were likewise insured by the Tagum Plastics Inc. with plaintiff Philippine American General Insurance Co., Inc., (Exh. G). "In the course of time, the said vessel arrived at Manila and discharged its cargoes in the Port of Manila for transhipment to Davao City. For this purpose, the foreign carrier awaited and made use of the services of the vessel called M/V Sweet Love owned and operated by defendant interisland carrier. "Subject cargoes were loaded in Holds Nos. 2 and 3 of the interisland carrier. These were commingled with similar cargoes belonging to Evergreen Plantation and also Standfilco.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph "On May 15, 1977, the shipment(s) were discharged from the interisland carrier into the custody of the consignee. A later survey conducted on July 8, 1977, upon the instance of the plaintiff, shows the following:jgc:chanrobles.com.ph "Of the cargo covered by Bill of Lading No. 25 or (2)6, supposed to contain 6,400 bags of Low Density Polyethylene 647 originally inside 160 pallets, there were delivered to the consignee 5,413 bags in good order condition. The survey shows shortages, damages and losses to be as follows:chanrob1es virtual 1aw library Undelivered/Damaged bags as tallied during discharge from vessel-173 bags; undelivered and damaged as noted and observed whilst stored at the pier-699 bags; and shortlanded-110 bags (Exhs. P and P-1). "Of the 600 bags of Low Density Polyethylene 631, the survey conducted on the same day shows an actual delivery to the consignee of only 507 bags in good order condition. Likewise noted were the following losses, damages and shortages, to wit:chanrob1es virtual 1aw library Undelivered/damaged bags and tally sheets during discharge from vessel-17 bags.

Undelivered and damaged as noted and observed whilst stored at the pier-66 bags; Shortlanded-10 bags. Therefore, of said shipment totalling 7,000 bags, originally contained in 175 pallets, only a total of 5,820 bags were delivered to the consignee in good order condition, leaving a balance of 1,080 bags. Such loss from this particular shipment is what any or all

defendants

may

be

answerable

to

(sic).

"As already stated, some bags were either shortlanded or were missing, and some of the 1,080 bags were torn, the contents thereof partly spilled or were fully/partially emptied, but, worse, the contents thereof contaminated with foreign matters and therefore could no longer serve their intended purpose. The position taken by the consignee was that even those bags which still had some contents were considered as total losses as the remaining contents were contaminated with foreign matters and therefore did not (sic) longer serve the intended purpose of the material. Each bag was valued, taking into account the customs duties and other taxes paid as well as charges and the conversion value then of a dollar to the peso, at P110.28 per bag (see Exhs. L and L-1 M and O)." 2 Before trial, a compromise agreement was entered into between petitioners, as plaintiffs, and defendants S.C.I. Line and F.E. Zuellig, upon the latters payment of P532.65 in settlement of the claim against them. Whereupon, the trial court in its order of August 12, 1981 3 granted plaintiffs motion to dismiss grounded on said amicable settlement and the case as to S.C.I. Line a nd F.E. Zuellig was consequently "dismissed with prejudice and without pronouncement as to costs."cralaw virtua1aw library The trial court thereafter rendered judgment in favor of herein petitioners on this dispositive portion:jgc:chanrobles.com.ph "WHEREFORE, judgment is hereby rendered in favor of the plaintiff Philippine General American Insurance Company Inc. and against the remaining defendants, Sweet Lines Inc. and Davao Veterans Arrastre Inc. as follows:chanrob1es virtual 1aw library Defendant Sweet Lines, Inc. is ordered to pay said plaintiff the sum of P34,902.00, with legal interest thereon from date of extrajudicial demand on April 28, 1978 (Exh. M) until fully paid; Defendant Sweet Lines Inc. and Davao Veterans Arrastre and (Port) Services Inc. are directed to pay jointly and severally, the plaintiff the sum of P49,747.55, with legal interest thereon from April 28, 1978 until fully paid; Each of said defendants are ordered to pay the plaintiffs the additional sum of P5,000 as reimbursable attorneys fees and ot her litigation expenses;chanrobles law library : red Each of said defendants shall pay one-fourth (1/4) costs." 4

Due to the reversal on appeal by respondent court of the trial courts decision on the ground of prescription, 5 in effect di smissing the complaint of herein petitioners, and the denial of their motion for reconsideration, 6 petitioners filed the instant petition for review on certiorari, faulting respondent appellate court with the following errors: (1) in upholding, without proof, the existence of the so-called prescriptive period; (2) granting arguendo that the said prescriptive period does exist, in not finding the same to be null and void; and (3) assuming arguendo that the said prescriptive period is valid and legal, in failing to conclude that petitioners substantially complied therewith. 7 Parenthetically, we observe that herein petitioners are jointly pursuing this case, considering their common interest in the shipment subject of the present controversy, to obviate any question as to who the real party in interest is and to protect their respective rights as insurer and insured. In any case, there is no impediment to the legal standing of petitioner Philamgen, even if it alone were to sue herein private respondents in its own capacity as insurer, it having been subrogated to all rights of recovery for loss of or damage to the shipment insured under its Marine Risk Note No. 438734 dated March 31, 1977 8 in view of the full settlement of the claim thereunder as evidenced by the subrogation receipt 9 issued in its favor by Far East Bank and Trust Co., Davao Branch, for the account of petitioner TPI. Upon payment of the loss covered by the policy, the insurers entitlement to subrogation pro tanto, being of the highest equi ty, equips it with a cause of action against a third party in case of contractual breach. 10 Further, the insurers su brogatory right to sue for recovery under the bill of lading in case of loss of or damage to the cargo is jurisprudentially upheld. 11 However, if an insurer, in the exercise of its subrogatory right, may proceed against the erring carrier and for all intents and purposes stands in the place and in substitution of the consignee, a fortiori such insurer is presumed to know and is just as bound by the contractual terms under the bill of lading as the insured. On the first issue, petitioners contend that it was error for the Court of Appeals to reverse the appealed decision on the supposed ground of prescription when SLI failed to adduce any evidence in support thereof and that the bills of lading said to contain the shortened periods for filing a claim and for instituting a court action against the carrier were never offered in evidence. Considering that the existence and tenor of this stipulation on the aforesaid periods have allegedly not been established, petitioners maintain that it is inconceivable how they can possibly comply therewith. 12 In refutation, SLI avers that it is standard practice in its operations to issue bills of lading for shipments entrusted to it for carriage and that it in fact issued bills of lading

numbered MD-25 and MD-26 therefor with proof of their existence manifest in the records of the case. 13 For its part, DVAPSI insists on the propriety of the dismissal of the complaint as to it due to petitioners failure to prove its direct responsib ility for the loss of and/or damage to the cargo. 14 On this point, in denying petitioners motion for reconsideration, the Court of Appeals resolved that although the bills of l ading were not offered in evidence, the litigation obviously revolves on such bills of lading which are practically the documents or contracts sued upon, hence, they are inevitably involved and their provisions cannot be disregarded in the determination of the relative rights of the parties thereto. 15 Respondent court correctly passed upon the matter of prescription, since that defense was so considered and controverted by the parties. This issue may accordingly be taken cognizance of by the court even if not inceptively raised as a defense so long as its existence is plainly apparent on the face of relevant pleadings. 16 In the case at bar, prescription as an affirmative defense was seasonably raised by SLI in its answer, 17 except that the bills of lading embodying the same were not formally offered in evidence, thus reducing the bone of contention to whether or not prescription can be maintained as such defense and, as in this case, consequently upheld on the strength of mere references thereto. As petitioners are suing upon SLIs contractual obligation under the contract of carriage as contained in the bills of ladin g, such bills of lading can be categorized as actionable documents which under the Rules must be properly pleaded either as causes of action or defenses, 18 and the genuineness and due execution of which are deemed admitted unless specifically denied under oath by the adverse party. 19 The rules on actionable documents cover and apply to both a cause of action or defense based on said documents. 20 In the present case and under the aforestated assumption that the time limit involved is a prescriptive period, respondent carrier duly raised prescription as an affirmative defense in its answer setting forth paragraph 5 of the pertinent bills of lading which comprised the stipulation thereon by parties, to wit:chanrobles law library : red "5. Claims for shortage, damage, must be made at the time of delivery to consignee or agent, if container shows exterior signs of damage or shortage. Claims for non-delivery, misdelivery, loss or damage must be filed within 30 days from accrual. Suits arising from shortage, damage or loss, non-delivery or misdelivery shall be instituted within 60 days from date of accrual of right of action. Failure to file claims or institute judicial proceedings as herein provided constitutes waiver of claim or right of action. In no case shall carrier be liable for any delay, non-delivery, misdelivery, loss of damage to cargo while cargo is not in actual custody of carrier." 21 In their reply thereto, herein petitioners, by their own assertions that

"2. In connection with Pars. 14 and 15 of defendant Sweet Lines, Inc.s Answer, plaintiffs state that such agreements are what the Supreme Court considers as contracts of adhesion (see Sweet Lines, Inc. v. Hon. Bernardo Teves, Et Al., G.R. No. L-37750, May 19, 1978) and, consequently, the provisions therein which are contrary to law and public policy cannot be availed of by answering defendant as valid defenses." 22 thereby failed to controvert the existence of the bills of lading and the aforequoted provisions therein, hence they impliedly admitted the same when they merely assailed the validity of subject stipulations. Petitioners failure to specifically deny the existence, much less the genuineness and due execution, of the instruments in q uestion amounts to an admission. Judicial admissions, verbal or written, made by the parties in the pleadings or in the course of the trial or other proceedings in the same case are conclusive, no evidence being required to prove the same, and cannot be contradicted unless shown to have been made through palpable mistake or that no such admission was made. 23 Moreover, when the due execution and genuineness of an instrument are deemed admitted because of the adverse partys failure to make a specific verified denial thereof, the instrument need not be presented formally in evidence for it may be considered an admitted fact. 24 Even granting that petitioners averment in their reply amounts to a denial, it has the procedural earmarks of what in the la w on pleadings is called a negative pregnant, that is, a denial pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied. It is in effect an admission of the averment it is directed to. 25 Thus, while petitioners objected to the validity of such agreement for being contrary to public policy, the existence of the bills of lading and said stipulations were nevertheless impliedly admitted by them. We find merit in respondent courts comments that petitioners failed to touch on the matter of the non -presentation of the bills of lading in their brief and earlier on in the appellate proceedings in this case, hence it is too late in the day to now allow the litigation to be overturned on that score, for to do so would mean an over-indulgence in technicalities. Hence, for the reasons

already advanced, the non-inclusion of the controverted bills of lading in the formal offer of evidence cannot, under the facts of this particular case, be considered a fatal procedural lapse as would bar respondent carrier from raising the defense of prescription. Petitioners feigned ignorance of the provisions of the bills of lading, particularly on the time limitations f or filing a claim and for commencing a suit in court, as their excuse for non-compliance therewith does not deserve serious attention. It is to be noted that the carriage of the cargo involved was effected pursuant to an "Application for Delivery of Cargoes without Original Bill of Lading" issued on May 20, 1977 in Davao City 26 with the notation therein that said application corresponds to and is subject to the terms of bills of lading MD-25 and MD-26. It would be a safe assessment to interpret this to mean that, sight unseen, petitioners acknowledged the existence of said bills of lading. By having the cargo shipped on respondent carriers vessel and later making a claim for loss on the basis of the bills of lading, petitioners for all intents and purposes accepted said bills. Having done so they are bound by all stipulations contained therein. 27 Verily, as petitioners are suing for recovery on the contract, and in fact even went as far as assailing its validity by categorizing it as a contract of adhesion, then they necessarily admit that there is such a contract, their knowledge of the existence of which with its attendant stipulations they cannot now be allowed to deny.chanrobles lawlibrary : rednad On the issue of the validity of the controverted paragraph 5 of the bills of lading above quoted which unequivocally prescribes a time frame of thirty (30) days for filing a claim with the carrier in case of loss of or damage to the cargo and sixty (60) days from accrual of the right of action for instituting an action in court, which periods must concur, petitioners posit that the alleged shorter prescriptive period which is in the nature of a limitation on petitioners right of recovery is unreasonable and that SLI has the burden of proving otherwise, citing the earlier case of Southern Lines, Inc. v. Court of Appeals, Et Al., 28 They postulate this on the theory that the bills of lading containing the same constitute contracts of adhesion and are, therefore, void for being contrary to public policy, supposedly pursuant to the dictum in Sweet Lines, Inc. v. Teves, Et. Al. 29 Furthermore, they contend, since the liability of private respondents has been clearly established, to bar petitioners right of recovery on a mere technicality will pave the way for unjust enrichment. 30 Contrarily, SLI asserts and defends the reasonableness of the time limitation within which claims should be filed with the carrier; the necessity for the same, as this condition for the carriers liability is uniformly adopted by nearly all shipping companies if they are to survive the concomitant rigors and r isks of the shipping industry; and the countervailing balance afforded by such stipulation to the legal presumption of negligence under which the carrier labors in the event of loss of or damage to the cargo. 31 It has long been held that Article 366 of the Code of Commerce applies not only to overland and river transportation but also to maritime transportation. 32 Moreover, we agree that in this jurisdiction, as viewed from another angle, it is more accurate to state that the filing of a claim with the carrier within the time limitation therefor under Article 366 actually constitutes a condition precedent to the accrual of a right of action against a carrier for damages caused to the merchandise. The shipper or the consignee must allege and prove the fulfillment of the condition and if he omits such allegations and proof, no right of action against the carrier can accrue in his favor. As the requirements in Article 366, restated with a slight modification in the assailed paragraph 5 of the bills of lading, are reasonable conditions precedent, they are not limitations of action. 33 Being conditions precedent, their performance must precede a suit for enforcement 34 and the vesting of the right to file suit does not take place until the happening of these conditions. 35 Now, before an action can properly be commenced all the essential elements of the cause of action must be in existence, that is, the cause of action must be complete. All valid conditions precedent to the institution of the particular action, whether prescribed by statute, fixed by agreement of the parties or implied by law must be performed or complied with before commencing the action, unless the conduct of the adverse party has been such as to prevent or waive performance or excuse non-performance of the condition. 36 It bears restating that a right of action is the right to presently enforce a cause of action, while a cause of action consists of the operative facts which give rise to such right of action. The right of action does not arise until the performance of all conditions precedent to the action and may be taken away by the running of the statute of limitations, through estoppel, or by other circumstances which do not affect the cause of action. 37 Performance or fulfillment of all conditions precedent upon which a right of action depends must be sufficiently alleged, 38 considering that the burden of proof to show that a party has a right of action is upon the person initiating the suit. 39 More particularly, where the contract of shipment contains a reasonable requirement of giving notice of loss of or injury to the goods, the giving of such notice is a condition precedent to the action for loss or injury or the right to enforce the carrie rs liability. Such requirement is not an empty formalism. The fundamental reason or purpose of such a stipulation is not to relieve the carrier from just liability, but reasonably to inform it that the shipment has been damaged and that it is charged with liability therefor, and to give it an opportunity to examine the nature and extent of the injury. This protects the carrier by affording it an opportunity to make an investigation of a claim while the matter is fresh and easily investigated so as to safeguard itself from false

and

fraudulent

claims.

40

Stipulations in bills of lading or other contracts of shipment which require notice of claim for loss of or damage to goods shipped in order to impose liability on the carrier operate to prevent the enforcement of the contract when not complied with, that is, notice is a condition precedent and the carrier is not liable if notice is not given in accordance with the stipulation, 41 as the failure to comply with such a stipulation in a contract of carriage with respect to notice of loss or claim for damage bars recovery for the loss or damage suffered. 42 On the other hand, the validity of a contractual limitation of time for filing the suit itself against a carrier shorter than the statutory period therefor has generally been upheld as such stipulation merely affects the shippers reme dy and does not affect the liability of the carrier. In the absence of any statutory limitation and subject only to the requirement on the reasonableness of the stipulated limitation period, the parties to a contract of carriage may fix by agreement a shorter time for the bringing of suit on a claim for the loss of or damage to the shipment than that provided by the statute of limitations. Such limitation is not contrary to public policy for it does not in any way defeat the complete vestiture of the right to recover, but merely requires the assertion of that right by action at an earlier period than would be necessary to defeat it through the operation of the ordinary statute of limitations. 43 In the case at bar, there is neither any showing of compliance by petitioners with the requirement for the filing of a notice of claim within the prescribed period nor any allegation to that effect. It may then be said that while petitioners may possibly have a cause of action, for failure to comply with the above condition precedent they lost whatever right of action they may have in their favor or, taken in another sense, that remedial right or right to relief had prescribed. 44 The shipment in question was discharged into the custody of the consignee on May 15, 1977, and it was from this date that petitioners cause of action accrued, with thirty (30) days therefrom within which to file a claim with the carrier for any l oss or damage which may have been suffered by the cargo and thereby perfect their right of action. The findings of respondent court as supported by petitioners formal offer of evidence in the court below show that the claim was filed with SLI only on April 28 , 1978, way beyond the period provided in the bills of lading 45 and violative of the contractual provision. the inevitable consequence of which is the loss of petitioners remedy or right to sue. Even the filing of the complaint on May 12, 1978 is of no remedial or practical consequence, since the time limits for the filing thereof, whether viewed as a condition precedent or as a prescriptive period, would in this case be productive of the same result, that is, that petitioners had no right of action to begin with or, at any rate, their claim was time-barred. What the court finds rather odd is the fact that petitioner TPI filed a provisional claim with DVAPSI as early as June 14, 1977 46 and, as found by the trial court, a survey fixing the extent of loss of and/or damage to the cargo was conducted on July 8, 1977 at the instance of petitioners. 47 If petitioners had the opportunity and awareness to file such provisional claim and to cause a survey to be conducted soon after the discharge of the cargo, then they could very easily have filed the necessary formal, or even a provisional, claim with SLI itself 48 within the stipulated period therefor, instead of doing so only on April 28, 1978 despite the vessels arrival at the port of destination on May 15, 1977. Their failure to timely act brings us to no inference other than the fact that petitioners slept on their rights and they must now face the consequences of such inaction. The ratiocination of the Court of Appeals on this aspect is worth reproducing:chanrobles law library x x x

"It must be noted, at this juncture, that the aforestated time limitation in the presentation of claim for loss or damage, is but a restatement of the rule prescribed under Art. 366 of the Code of Commerce which reads as follows:chanrob1es virtual 1aw library Art. 366. Within the twenty-four hours following the receipt of the merchandise, the claim against the carrier for damage or average which may be found therein upon opening the packages, may be made, provided that the indications of the damage or average which gives rise to the claim cannot be ascertained from the outside part of the packages, in which case the claims shall be admitted only at the time of the receipt. After the periods mentioned have elapsed, or the transportation charges have been paid, no claim shall be admitted against t he carrier with regard to the condition in which the goods transported were delivered. Gleanable therefrom is the fact that subject stipulation even lengthened the period for presentation of claims thereunder. Such modification has been sanctioned by the Supreme Court. In the case of Ong Yet (M)ua Hardware Co., Inc. v. Mitsui Steamship Co., Ltd., Et Al., 59 O.G. No. 17, p. 2764, it ruled that Art. 366 of the Code of Commerce can be modified by a bill of lading prescribing

the period of 90 days after arrival of the ship, for filing of written claim with the carrier or agent, instead of the 24-hour time limit after delivery provided in the aforecited legal provision. "Tested, too, under paragraph 5 of said Bill of Lading, it is crystal clear that the commencement of the instant suit on May 12, 1978 was indeed fatally late. In view of the express provision that suits arising from . . . damage or loss shall be institu ted within 60 days from date of accrual of right of action, the present action necessarily fails on ground of prescription. In the absence of constitutional or statutory prohibition, it is usually held or recognized that it is competent for the par ties to a contract of shipment to agree on a limitation of time shorter than the statutory period, within which action for breach of the contract shall be brought, and such limitation will be enforced if reasonable. . . (13 C.J.S. 496 -497) A perusal of the pertinent provisions of law on the matter would disclose that there is no constitutional or statutory prohibition informing paragraph 5 of subject Bill of Lading. The stipulated period of 60 days is reasonable enough for appellees to ascertain the facts and thereafter to sue, if need be, and the 60-day period agreed upon by the parties which shortened the statutory period within which to bring action for breach of contract is valid and binding. . . . ." (Emphasis in the original text.) 49 As explained above, the shortened period for filing suit is not unreasonable and has in fact been generally recognized to be a valid business practice in the shipping industry. Petitioners advertence to the Courts holding in the Southern Lines case, supra, is futile as what was involved was a claim for refund of excess payment. We ruled therein that non-compliance with the requirement of filing a notice of claim under Article 366 of the Code of Commerce does not affect the consignees right of action against th e carrier because said requirement applies only to cases for recovery of damages on account of loss of or damage to cargo, not to an action for refund of overpayment, and on the further consideration that neither the Code of Commerce nor the bills of lading therein provided any time limitation for suing for refund of money paid in excess, except only that it be filed within a reasonable time. The ruling in Sweet Lines categorizing the stipulated limitation on venue of action provided in the subject bill of lading as a contract of adhesion and, under the circumstances therein, void for being contrary to public policy is evidently likewise unavailing in view of the discrete environmental facts involved and the fact that the restriction therein was unreasonable. In any case, Ong Yiu v. Court of Appeals, Et Al., 50 instructs us that "contracts of adhesion wherein one party imposes a ready-made form of contract on the other . . . are contracts not entirely prohibited. The one who adheres to the contract is in reality free to reject it entirely; if he adheres he gives his consent." In the present case, not-even an allegation of ignorance of a party excuses noncompliance with the contractual stipulations since the responsibility for ensuring full comprehension of the provisions of a contract of carriage devolves not on the carrier but on the owner, shipper, or consignee as the case may be.chanrobles virtual lawlibrary While it is true that substantial compliance with provisions on filing of claim for loss of or damage to cargo may sometimes suffice, the invocation of such an assumption must be viewed vis-a-vis the object or purpose which such a provision seeks to attain and that is to afford the carrier a reasonable opportunity to determine the merits and validity of the claim and to protect itself against unfounded impositions. 51 Petitioners would nevertheless adopt an ada mant posture hinged on the issuance by SLI of a "Report on Losses and Damages," dated May 15, 1977, 52 from which petitioners theorize that this charges private respondents with actual knowledge of the loss and damage involved in the present case as would obviate the need for or render superfluous the filing of a claim within the stipulated period. Withal, it has merely to be pointed out that the aforementioned report bears this notation at the lower part thereof: "Damaged by Mla. labor upon unloading; B/L noted at port of origin," as an explanation for the cause of loss of and/or damage to the cargo, together with an iterative note stating that" (t)his copy should be submitted together with your claim invoice or receipt within 30 days from date of issue otherwise your claim will not be honored."cralaw virtua1aw library Moreover, knowledge on the part of the carrier of the loss of or damage to the goods deducible from the issuance of said report is not equivalent to nor does it approximate the legal purpose served by the filing of the requisite claim, that is, to promptly apprise the carrier about a consignees intention to file a claim and thus cause the prompt investigation of the veracity and merit t hereof for its protection. It would be an unfair imposition to require the carrier, upon discovery in the process of preparing the report on losses or damages of any and all such loss or damage, to presume the existence of a claim against it when at that time the carrier is expectedly concerned merely with accounting for each and every shipment and assessing its condition. Unless and until a notice of claim is therewith timely filed, the carrier cannot be expected to presume that for every loss or damage tallied, a corresponding claim therefor has been filed or is already in existence as would alert it to the urgency for an immediate investigation of the soundness of the claim. The report on losses and damages is not the claim referred to and required by the bills of lading for it does not fix responsibility for the loss or damage, but merely states the condition of the goods shipped. The claim contemplated herein, in whatever form, must be something more than a notice that the goods have been lost or damaged; it must contain a claim for

compensation

or

indicate

an

intent

to

claim.

53

Thus, to put the legal effect of respondent carriers report on losses or damages, the preparation of which is standard proce dure upon unloading of cargo at the port of destination, on the same level as that of a notice of claim by imploring substantial compliance is definitely far-fetched. Besides, the cited notation on the carriers report itself makes it clear that the filing of a notice of claim in any case is imperative if carrier is to be held liable at all for the loss of or damage to cargo. Turning now to respondent DVAPSI and considering that whatever right of action petitioners may have against respondent carrier was lost due to their failure to seasonably file the requisite claim, it would be awkward, to say the least, that by some convenient process of elimination DVAPSI should proverbially be left holding the bag, and it would be pure speculation to assume that DVAPSI is probably responsible for the loss of or damage to cargo. Unlike a common carrier, an arrastre operator does not labor under a presumption of negligence in case of loss, destruction, or deterioration of goods discharged into its custody. In other words, to hold an arrastre operator liable for loss of and/or damage to goods entrusted to it there must be preponderant evidence that it did not exercise due diligence in the handling and care of the goods.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Petitioners failed to pinpoint liability on any of the original defendants and in this seemingly wild goose-chase, they cannot quite put their finger down on when, where, how and under whose responsibility the loss or damage probably occurred, or as stated in paragraph 8 of their basic complaint filed in the court below, whether" (u)pon discharge of the cargoes from the original carrying vessel, the SS VISHVA YASH," and/or upon discharge of the cargoes from the interisland vessel the MV SWEET LOVE, in Davao City and later while in the custody of defendant arrastre operator." 54 The testimony of petitioners own witness, Roberto Cabato, Jr., Marine and Aviation Claims Manager of petitioner Philamgen, was definitely inconclusive and the responsibility for the loss or damage could still not be ascertained therefrom:jgc:chanrobles.com.ph "Q In other words, Mr. Cabato, you only computed the loss on the basis of the figures submitted to you and based on the documents like the survey certificate and the certificate of the arrastre? A Q Therefore, Mr. Cabato, You have no Yes, idea how or where these losses were sir. incurred?

A No, sir. x x x

Q Mr. Witness, you said that you processed and investigated the claim involving the shipment in question. Is it not a fact that in your processing and investigation you considered how the shipment was transported? Where the losses could have occurred and what is the extent of the respective responsibilities of the bailees and/or carriers involved? x x x

A With respect to the shipment being transported, we have of course to get into it in order to check whether the shipment coming in to this port is in accordance with the policy condition, like in this particular case, the shipment was transported to Manila and transhipped through an interisland vessel in accordance with the policy. With respect to the losses, we have a general view where losses could have occurred. Of course we will have to consider the different bailees wherein the shipment must have passed through, like the ocean vessel, the interisland vessel and the arrastre, but definitely at that point and time we cannot determine the extent of each liability. We are only interested at that point and time in the liability as regards the underwriter in accordance with the policy that we issued. x x x

Q Mr. Witness, from the documents, namely, the survey of Manila Adjusters and Surveyors Company, the survey of Davao Arrastre contractor and the bills of lading issued by the defendant Sweet Lines, will you be able to tell the respective liabilities of the bailees and/or carriers concerned?

No,

sir."

(Emphasis

ours.)

55

Neither did nor could the trial court, much less the Court of Appeals, precisely establish the stage in the course of the shipment when the goods were lost, destroyed or damaged. What can only be inferred from the factual findings of the trial court is that by the time the cargo was discharged to DVAPSI, loss or damage had already occurred and that the same could not have possibly occurred while the same was in the custody of DVAPSI, as demonstrated by the observations of the trial court quoted at the start of this opinion.cralawnad ACCORDINGLY, on the foregoing premises, the instant petition is DENIED and the dismissal of the complaint in the court a quo as decreed by respondent Court of Appeals in its challenged judgment is hereby AFFIRMED. SO ORDERED. FIRST

DIVISION

[G.R.

No.

83484.

February

12,

1990.]

CELEDONIA SOLIVIO, Petitioner, v. THE HONORABLE COURT OF APPEALS and CONCORDIA JAVELLANA VILLANUEVA, Respondents. Rex Suiza Castillon for Petitioner.

Salas & Villareal for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; JURISDICTION; A BRANCH OF REGIONAL TRIAL COURT DOES NOT HAVE JURISDICTION OVER PARTITION CASE WHILE PROBATE PROCEEDINGS IS PENDING IN ANOTHER BRANCH OF THE SAME COURT. After a careful review of the records, we find merit in the petitioners contention that the Regional Trial Court, Branch 26, lacked jurisdiction to entertain Conco rdia Villanuevas action for partition and recovery of her share of the estate of Esteban Javellana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administrat rixs inventory and accounting, distributing the residue of the estate to the heir, and terminating the proceedings. 2. ID.; SETTLEMENT OF ESTATE; ORDER OF DISTRIBUTION OF ESTATE ENDS INTESTATE PROCEEDINGS. It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, Et Al., L-27860, March 29, 1974, 56 SCRA 266). 3. ID.; ID.; ID.; DECLARATION OF SOLE HEIR DID NOT TOLL END OF PROCEEDINGS. The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate."cralaw virtua1aw library 4. ID.; ID.; ID.; ID.; REMEDY IN CASE OF DENIAL OF THE MOTION TO SET ASIDE THE ORDER DECLARING A PERSON AS SOLE HEIR IS BY PETITION FOR REVIEW. In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordias motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. 5. ID.; ID.; ID.; ID.; ID.; A COURT SHOULD NOT INTERFERE WITH PROBATE PROCEEDINGS PENDING IN A CO-EQUAL COURT. In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26696, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother: ". . . The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of."cralaw virtua1aw library 6. ID.; ID.; PROBATE PROCEEDINGS ARE IN REM; PUBLICATION OF NOTICE OF PROCEEDINGS IS A CONSTRUCTIVE NOTICE TO THE WHOLE WORLD; CASE AT BAR. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original petition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977. Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977. The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same.

7. ID.; CIVIL PROCEDURE; PETITION SUFFICIENT TO INVOKE JURISDICTION AND PROCEEDING WAS IN REM MAY NOT BE ATTACHED COLLATERALLY. The court noted that Concordias motion did not comply with the requisites of a petition for relief from judgment nor a motion for new trial. The rule is stated in 49 Corpus Juris Secundum 8030 as follows: "Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem, no subsequent errors or irregularities are available on collateral attack." (Bedwell v. Dean 132 So. 20) 8. ID.; SETTLEMENT OF ESTATE; OMISSION TO STATE THE CO-HEIR IN PETITION DID NOT CONSTITUTE AN EXTRINSIC FRAUD. Celedonias allegation in her petition that she was the sole heir of Esteban within the third degree on his mothers side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Estebans nearest surviving relative on his mothers side, is the rightful heir to them. It w ould have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. 9. ID.; ID.; ID.; FILING OF PETITION DOES NOT PRECLUDE OTHER HEIR FROM FILING ANOTHER PETITION. It should be remembered that a petition for administration of a decedents estate may be filed by any "interested person" (Sec. 2, Rule 79 , Rules of Court). The filing of Celedonias petition did not preclude Concordia from filing her own. 10. CIVIL CODE; SUCCESSION; RESERVA TRONCAL; DOES NOT APPLY TO PROPERTY INHERITED BY A DESCENDANT FROM ITS ASCENDANT. Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mothers side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. 11. ID.; ID.; APPLICATION OF ARTICLES 1003 AND 1009 OF THE CIVIL CODE IN CASE AT BAR. Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide: "Both plaintiffappellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate without distinction of line or preference among them by reason of relationship by the wh ole blood, and is entitled to one-half (1/2) share and share alike of the estate."cralaw virtua1aw library 12. ID.; ID.; THE HEIR WHO ALTHOUGH HAD NOT WAIVED INHERITANCE, IS BOUND BY HER AGREEMENT TO PLACE ESTATE IN FOUNDATION; A JUDICIAL ADMISSION IS CONCLUSIVE. However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540: she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Estebans estate in the "Salustia Solivio Vda. de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227).

DECISION

MEDIALDEA, J.:

This is a petition for review of the decision dated January 26, 1988 of the Court of Appeals in CA-GR CV No. 09010 (Concordia Villanueva v. Celedonia Solivio) affirming the decision of the trial court in Civil Case No. 13207 for partition, reconveyance of ownership and possession and damages, the dispositive portion of which reads as follows:jgc:chanrobles.com.ph "WHEREFORE, judgment is hereby rendered for the plaintiff and against defendant:jgc:chanrobles.com.ph

"a) Ordering that the estate of the late Esteban Javellana, Jr. be divided into two (2) shares: one-half for the plaintiff and one-half for defendant. From both shares shall be equally deducted the expenses for the burial, mausoleum and related expenditures. Against the share of defendants shall be charged the expenses for scholarship, awards, donations and the Salustia Solivio Vd a. de Javellana Memorial Foundation;

"b) Directing the defendant to submit an inventory of the entire estate property, including but not limited to, specific items already mentioned in this decision and to render an accounting of the property of the estate, within thirty (30) days from receipt of this judgment; one-half (1/2) of this produce shall belong to plaintiff; "c) Ordering defendant to pay plaintiff P5,000.00 as expenses of litigation; P10,000.00 for and as attorneys fees plus costs ."cralaw virtua1aw library "SO ORDERED." (pp. 42-43, Rollo)

This case involves the estate of the late novelist, Esteban Javellana, Jr., author of the first post-war Filipino novel "Without Seeing the Dawn," who died a bachelor, without descendants, ascendants, brothers, sisters, nephews or nieces. His only surviving relatives are: (1) his maternal aunt, petitioner Celedonia Solivio, the spinster half-sister of his mother, Salustia Solivio; and (2) the private respondent, Concordia Javellana-Villanueva, sister of his deceased father, Esteban Javellana, Sr. He was a posthumous child. His father died barely ten (10) months after his marriage in December, 1916 to Salustia Solivio and four months before Esteban, Jr. was born. Salustia and her sister, Celedonia (daughter of Engracio Solivio and his second wife Josefa Fernandez), a teacher in the Iloilo Provincial High School, brought up Esteban, Jr. Salustia brought to her marriage paraphernal properties (various parcels of land in Calinog, Iloilo covered by 24 titles) which she had inherited from her mother, Gregoria Celo, Engracio Solivios first wife (p. 325, Record), but no conjugal property was acquired during her short-lived marriage to Esteban, Sr. On October 11, 1959, Salustia died, leaving all her properties to her only child, Esteban, Jr., including a house and lot in La Paz, Iloilo City, where she, her son, and her sister lived. In due time, the titles of all these properties were transferred in the name of Esteban, Jr. During his lifetime, Esteban, Jr. had, more than once, expressed to his aunt Celedonia and some close friends his plan to place his estate in a foundation to honor his mother and to help poor but deserving students obtain a college education. Unfortunately, he died of a heart attack on February 26, 1977 without having set up the foundation. Two weeks after his funeral, Concordia and Celedonia talked about what to do with Estebans properties. Celedonia told Concordia about Estebans desire to place his estate in a foundation to be named after his mother, from whom his properties came, for the purpose of helping indigent students in their schooling. Concordia agreed to carry out the plan of the deceased. This fact was admitted by her in her "Motion to Reopen and or Reconsider the Order dated April 3, 1978" which she filed on July 27, 1978 in Special Proceeding No. 2540, where she stated:jgc:chanrobles.com.ph "4. That petitioner knew all along the narrated facts in the immediately preceding paragraph [that herein movant is also the relative of the deceased within the third degree, she being the younger sister of the late Esteban Javellana, father of the decedent herein], because prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each others house which are not far away for (sic) each other." (p. 234, Record; Emphasis supplied.) Pursuant to their agreement that Celedonia would take care of the proceedings leading to the formation of the foundation, Celedonia in good faith and upon the advice of her counsel, filed on March 8, 1977 Spl. Proceeding No. 2540 for her appointment as special administratrix of the estate of Esteban Javellana, Jr. (Exh. 2). Later, she filed an amended petition (Exh. 5) praying that letters of administration be issued to her; that she be declared sole heir of the deceased; and that after payment of all claims and rendition of inventory and accounting, the estate be adjudicated to her (p. 115, Rollo).chanrobles.com : virtual law library After due publication and hearing of her petition, as well as her amended petition, she was declared sole heir of the estate of Esteban Javellana, Jr. She explained that this was done for three reasons: (1) because the properties of the estate had come from her sister, Salustia Solivio; (2) that she is the decedents nearest relative on his mothers side; and (3) with her as sole heir, the disposition of the properties of the estate to fund the foundation would be facilitated. On April 3, 1978, the court (Branch II, CFI, now Branch 23, RTC) declared her the sole heir of Esteban, Jr. Thereafter, she sold properties of the estate to pay the taxes and other obligations of the deceased and proceeded to set up the "SALUSTIA SOLIVIO

VDA. DE JAVELLANA FOUNDATION" which she caused to be registered in the Securities and Exchange Commission on July 17, 1981 under Reg. No. 0100027 (p. 98, Rollo). Four months later, or on August 7, 1978, Concordia Javellana-Villanueva filed a motion for reconsideration of the courts order declaring Celedonia as "sole heir" of Esteban, Jr., because she too was an heir of the deceased. On October 27, 1978, her motion was denied by the court for tardiness (pp. 80-81, Record). Instead of appealing the denial, Concordia filed on January 7, 1980 (or one year and two months later), Civil Case No. 13207 in the Regional Trial Court of Iloilo, Branch 26, entitled "Concordia JavellanaVillanueva v. Celedonia Solivio" for partition, recovery of possession, ownership and damages. On September 3, 1984, the said trial court rendered judgment in Civil Case No. 13207, in favor of Concordia Javellana-Villanueva. On Concordias motion, the trial court ordered the execution of its judgment p ending appeal and required Celedonia to submit an inventory and accounting of the estate. In her motions for reconsideration of those orders, Celedonia averred that the properties of the deceased had already been transferred to, and were in the possession of, the "Salustia Solivio Vda. de Javellana Foundation." The trial court denied her motions for reconsideration. In the meantime, Celedonia perfected an appeal to the Court of Appeals (CA-GR CV No. 09010). On January 26, 1988, the Court of Appeals, Eleventh Division, rendered judgment affirming the decision of the trial court in toto. Hence, this petition for review wherein she raised the following legal issues:chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph 1. whether Branch 26 of the RTC of Iloilo had jurisdiction to entertain Civil Case No. 13207 for partition and recovery of Concordia Villanuevas share of the estate of Esteban Javellana, Jr. even while the probate proceedings (Spl. Proc. No. 2540) were stil l pending in Branch 23 of the same court; 2. whether Concordia Villanueva was prevented from intervening in Spl. Proc. No. 2540 through extrinsic fraud; 3. whether the decedents properties were subject to reserva troncal in favor of Celedonia, his relative within the third deg ree on his mothers side from whom he had inherited them; and 4. whether Concordia may recover her share of the estate after she had agreed to place the same in the "Salustia Solivio Vda. de Javellana Foundation," and notwithstanding the fact that conformably with said agreement, the Foundation has been formed and properties of the estate have already been transferred to it. I. The question of jurisdiction

After a careful review of the records, we find merit in the petitioners contention that the Regional Tri al Court, Branch 26, lacked jurisdiction to entertain Concordia Villanuevas action for partition and recovery of her share of the estate of Esteban Jave llana, Jr. while the probate proceedings (Spl. Proc. No. 2540) for the settlement of said estate are still pending in Branch 23 of the same court, there being as yet no orders for the submission and approval of the administratrixs inventory and accounting, distrib uting the residue of the estate to the heir, and terminating the proceedings (p. 31, Record). It is the order of distribution directing the delivery of the residue of the estate to the persons entitled thereto that brings to a close the intestate proceedings, puts an end to the administration and thus far relieves the administrator from his duties (Santiesteban v. Santiesteban, 68 Phil. 367, Philippine Commercial and Industrial Bank v. Escolin, Et Al., L-27860, March 29, 1974, 56 SCRA 266). The assailed order of Judge Adil in Spl. Proc. No. 2540 declaring Celedonia as the sole heir of the estate of Esteban Javellana, Jr. did not toll the end of the proceedings. As a matter of fact, the last paragraph of the order directed the administratrix to "hurry up the settlement of the estate." The pertinent portions of the order are quoted below:jgc:chanrobles.com.ph "2. As regards the second incident [Motion for Declaration of Miss Celedonia Solivio as Sole Heir, dated March 7, 1978], it appears from the record that despite the notices posted and the publication of these proceedings as required by law, no other heirs came out to interpose any opposition to the instant proceeding. It further appears that herein Administratrix is the only claimant-heir to the estate of the late Esteban Javellana who died on February 26, 1977. "During the hearing of the motion for declaration as heir on March 17, 1978, it was established that the late Esteban Javellana died single, without any known issue, and without any surviving parents. His nearest relative is the herein Administratrix, an elder [sic] sister of his late mother who reared him and with whom he had always been living with [sic] during his lifetime.

"x

x"

"2. Miss Celedonia Solivio, Administratrix of this estate, is hereby declared as the sole and legal heir of the late Esteban S. Javellana, who died intestate on February 26, 1977 at La Paz, Iloilo City. "The Administratrix is hereby instructed to hurry up with the settlement of this estate so that it can be terminated. (pp. 14-16, Record). In view of the pendency of the probate proceedings in Branch 11 of the Court of First Instance (now RTC, Branch 23), Concordias motion to set aside the order declaring Celedonia as sole heir of Esteban, and to have herself (Concordia) declared as co-heir and recover her share of the properties of the deceased, was properly filed by her in Spl. Proc. No. 2540. Her remedy when the court denied her motion, was to elevate the denial to the Court of Appeals for review on certiorari. However, instead of availing of that remedy, she filed more than one year later, a separate action for the same purpose in Branch 26 of the court. We hold that the separate action was improperly filed for it is the probate court that has exclusive jurisdiction to make a just and legal distribution of the estate. "The probate court, in the exercise of its jurisdiction to make distribution, has power to determine the proportion or parts to which each distributee is entitled . . . The power to determine the legality or illegality of the testamentary provision is inherent in the jurisdiction of the court making a just and legal distribution of the inheritance . . . To hold that a separate and independent action is necessary to that effect, would be contrary to the general tendency of the jurisprudence of avoiding multiplicity of suits; and is further, expensive, dilatory, and impractical." (Marcelino v. Antonio, 70 Phil. 388). "A judicial declaration that a certain person is the only heir of the decedent is exclusively within the range of the administratrix proceedings and can not properly be made an independent action." (Litam v. Espiritu, 100 Phil. 364) "A separate action for the declaration of heirs is not proper." (Pimentel v. Palanca, 5 Phil. 436)

In the interest of orderly procedure and to avoid confusing and conflicting dispositions of a decedents estate, a court should not interfere with probate proceedings pending in a co-equal court. Thus, did we rule in Guilas v. Judge of the Court of First Instance of Pampanga, L-26696, January 31, 1972, 43 SCRA 111, 117, where a daughter filed a separate action to annul a project of partition executed between her and her father in the proceedings for the settlement of the estate of her mother:jgc:chanrobles.com.ph "The probate court loses jurisdiction of an estate under administration only after the payment of all the debts and the remaining estate delivered to the heirs entitled to receive the same. The finality of the approval of the project of partition by itself alone does not terminate the probate proceeding (Timbol v. Cano, 1 SCRA 1271, 1276, L-15445, April 29, 1961; Siguiong v. Tecson, 89 Phil. pp. 28, 30). As long as the order of the distribution of the estate has not been complied with, the probate proceedings cannot be deemed closed and terminated (Siguiong v. Tecson, supra); because a judicial partition is not final and conclusive and does not prevent the heirs from bringing an action to obtain his share, provided the prescriptive period therefore has not elapsed (Mari v. Bonilla, 83 Phil. 137). The better practice, however, for the heir who has not received his share, is to demand his share through a proper motion in the same probate or administration proceedings, or for reopening of the probate or administrative proceedings if it had already been closed, and not through an independent action, which would be tried by another court or Judge which may thus reverse a decision or order of the probate or intestate court already final and executed and re-shuffle properties long ago distributed and disposed of" (Ramos v. Ortuzar, 89 Phil. 730, 741-742; Timbol v. Cano, supra; Jingco v. Daluz, L-5107, April 24, 1953, 92 Phil. 1082; Roman Catholic v. Agustines, L-14710, March 29, 1960, 107 Phil. 455, 460-461; Emphasis supplied) In Litam, Et Al., v. Rivera, 100 Phil. 364, where despite the pendency of the special proceedings for the settlement of the intestate estate of the deceased Rafael Litam, the plaintiffs-appellants filed a civil action in which they claimed that they were the children by a previous marriage of the deceased to a Chinese woman, hence, entitled to inherit his one-half share of the conjugal properties acquired during his marriage to Marcosa Rivera, the trial court in the civil case declared that the plaintiffs-appellants were not children of the deceased, that the properties in question were paraphernal properties of his wife, Marcosa Rivera, and that the latter was his only heir. On appeal to this Court, we ruled that "such declarations (that Marcosa Rivera was the only heir of the decedent) is improper, in Civil Case No. 2071, it being within the exclusive competence of the court in Special Proceedings No. 1537, in which it is not as yet, in issue, and, will not be, ordinarily, in issue until the presentation of the project of partition." (p. 378) However, in the Guilas case, supra, since the estate proceedings had been closed and terminated for over three years, the action for annulment of the project of partition was allowed to continue. Considering that in the instant case, the estate proceedings are still pending, but nonetheless, Concordia had lost her right to have herself declared as co-heir in said proceedings, We have opted

likewise to proceed to discuss the merits of her claim in the interest of justice.chanrobles virtual lawlibrary The orders of the Regional Trial Court, Branch 26, in Civil Case No. 13207 setting aside the probate proceedings in Branch 23 (formerly Branch 11) on the ground of extrinsic fraud, and declaring Concordia Villanueva to be a co-heir of Celedonia to the estate of Esteban, Jr., ordering the partition of the estate, and requiring the administratrix, Celedonia, to submit an inventory and accounting of the estate, were improper and officious, to say the least, for these matters lie within the exclusive competence of the probate court. II. The question of extrinsic fraud

Was Concordia prevented from intervening in the intestate proceedings by extrinsic fraud employed by Celedonia? It is noteworthy that extrinsic fraud was not alleged in Concordias original complaint in Civil Case No. 13207. It was only in her amended complaint of March 6, 1980, that extrinsic fraud was alleged for the first time. "Extrinsic fraud, as a ground for annulment of judgment, is any act or conduct of the prevailing party which prevented a fair submission of the controversy (Francisco v. David, 38 O.G. 714). A fraud which prevents a party from having a trial or presenting all of his case to the court, or one which operates upon matters pertaining, not to the judgment itself, but to the manner by which such judgment was procured so much so that there was no fair submission of the controversy. For instance, if through fraudulent machination by one [his adversary], a litigant was induced to withdraw his defense or was prevented from presenting an available defense or cause of action in the case wherein the judgment was obtained, such that the aggrieved party was deprived of his day in court through no fault of his own, the equitable relief against such judgment may be availed of. (Yatco v. Sumagui, 44623-R, July 31, 1971)." (cited in Philippine Law Dictionary, 1972 Ed. by Moreno; Varela v. Villanueva, Et Al., 95 Phil. 248) "A judgment may be annulled on the ground of extrinsic or collateral fraud, as distinguished from intrinsic fraud, which connotes any fraudulent scheme executed by a prevailing litigant outside the trial of a case against the defeated party, or his agents, attorneys or witnesses, whereby said defeated party is prevented from presenting fully and fairly his side of the case . . . The overriding consideration is that the fraudulent scheme of the prevailing litigant prevented a party from having his day in court or from presenting his case. The fraud, therefore, is one that affects and goes into the jurisdiction of the court." (Libudan v . Gil, L21163, May 17, 1972, 45 SCRA 17, 27-29; Sterling Investment Corp. v. Ruiz, L-30694, October 31, 1969, 30 SCRA 318, 323) The charge of extrinsic fraud is, however, unwarranted for the following reasons:chanrobles virtual lawlibrary 1. Concordia was not unaware of the special proceeding intended to be filed by Celedonia. She admitted in her complaint that she and Celedonia had agreed that the latter would "initiate the necessary proceeding" and pay the taxes and obligations of the estate. Thus paragraph 6 of her complaint alleged:jgc:chanrobles.com.ph "6. . . . for the purpose of facilitating the settlement of the estate of the late Esteban Javellana, Jr. at the lowest possible cost and the least effort, the plaintiff and the defendant agreed that the defendant shall initiate the necessary proceeding, cause the payment of taxes and other obligations, and to do everything else required by law, and thereafter, secure the partition of the estate between her and the plaintiff," [although Celedonia denied that they agreed to partition the estate, for their agreement was to place the estate in a foundation.] (p. 2, Record; Emphasis supplied) Evidently, Concordia was not prevented from intervening in the proceedings. She stayed away by choice. Besides, she knew that the estate came exclusively from Estebans mother, Salustia Solivio, and she had agreed with Celedonia to place it in a foundation as the deceased had planned to do. 2. The probate proceedings are proceedings in rem. Notice of the time and place of hearing of the petition is required to be published (Sec. 3, Rule 76 in relation to Sec. 3, Rule 79, Rules of Court). Notice of the hearing of Celedonias original pet ition was published in the "Visayan Tribune" on April 25, May 2 and 9, 1977 (Exh. 4, p. 197, Record). Similarly, notice of the hearing of her amended petition of May 26, 1977 for the settlement of the estate was, by order of the court, published in "Bagong Kasanag" (New Light) issues of May 27, June 3 and 10, 1977 (pp. 182-305, Record). The publication of the notice of the proceedings was constructive notice to the whole world. Concordia was not deprived of her right to intervene in the proceedings for she had actual, as well as constructive notice of the same. As pointed out by the probate court in its order of October 27, 1978:jgc:chanrobles.com.ph ". . . The move of Concordia Javellana, however, was filed about five months after Celedonia Solivio was declared as the sole heir . . . "Considering that this proceeding is one in rem and had been duly published as required by law, despite which the present movant

only came to court now, then she is guilty of laches for sleeping on her alleged right." (p. 22, Record). The court noted that Concordias motion did not comply with the requisites of a petition for relie f from judgment nor a motion for new trial. The rule is stated in 49 Corpus Juris Secundum 8030 as follows:jgc:chanrobles.com.ph

"Where petition was sufficient to invoke statutory jurisdiction of probate court and proceeding was in rem, no subsequent errors or irregularities are available on collateral attack." (Bedwell v. Dean 132 So. 20) Celedonias allegation in her petition that she was the sole heir of Esteban within the third degree on his mothers side was not false. Moreover, it was made in good faith and in the honest belief that because the properties of Esteban had come from his mother, not his father, she, as Estebans nearest surviving relative on his mothers side, is the rightful heir to them. It w ould have been self-defeating and inconsistent with her claim of sole heirship if she stated in her petition that Concordia was her co-heir. Her omission to so state did not constitute extrinsic fraud. "Failure to disclose to the adversary, or to the court, matters which would defeat ones own cla im or defense is not such extrinsic fraud as will justify or require vacation of the judgment." (49 C.J.S. 489, citing Young v. Young, 2 SE 2d 622; First National Bank & Trust Co. of King City v. Bowman, 15 SW 2d 842; Price v. Smith, 109 SW 2d 1144, 1149). It should be remembered that a petition for administration of a decedents estate may be filed by any "interested person" (Se c. 2, Rule 79, Rules of Court). The filing of Celedonias petition did not preclude Concordia from filing her own. III. On the question of reserva troncal

We find no merit in the petitioners argument that the estate of the deceased was subject to reserva troncal and that it pert ains to her as his only relative within the third degree on his mothers side. The reserva troncal pr ovision of the Civil Code is found in Article 891 which reads as follows:jgc:chanrobles.com.ph "ART. 891. The ascendant who inherits from his descendant any property which the latter may have acquired by gratuitous title from another ascendant, or a brother or sister, is obliged to reserve such property as he may have acquired by operation of law for the benefit of relatives who are within the third degree and who belong to the line from which said property came."cralaw virtua1aw library The persons involved in reserva troncal are:jgc:chanrobles.com.ph

"1. The person obliged to reserve is the reservor (reservista) the ascendant who inherits by operation of law property from his descendants. "2. The persons for whom the property is reserved are the reservees (reservatorios) relatives within the third degree counted from the descendant (propositus), and belonging to the line from which the property came. "3. The propositus the descendant who received by gratuitous title and died without issue, making his other ascendant inherit by operation of law." (p. 692, Civil Law by Padilla, Vol. II, 1956 Ed.) Clearly, the property of the deceased, Esteban Javellana, Jr., is not reservable property, for Esteban, Jr. was not an ascendant, but the descendant of his mother, Salustia Solivio, from whom he inherited the properties in question. Therefore, he did not hold his inheritance subject to a reservation in favor of his aunt, Celedonia Solivio, who is his relative within the third degree on his mothers side. The reserva troncal applies to properties inherited by an ascendant from a descendant who inherited it from another ascendant or a brother or sister. It does not apply to property inherited by a descendant from his ascendant, the reverse of the situation covered by Article 891. Since the deceased, Esteban Javellana, Jr., died without descendants, ascendants, illegitimate children, surviving spouse, brothers, sisters, nephews or nieces, what should apply in the distribution of his estate are Articles 1003 and 1009 of the Civil Code which provide:chanrobles law library "ART. 1003. If there are no descendants, ascendants, illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles.

"ART. 1009. Should there be neither brothers nor sisters, nor children of brothers or sisters, the other collateral relatives shall succeed to the estate. "The latter shall succeed without distinction of lines or preference among them by reason of relationship by the whole blood."cralaw virtua1aw library Therefore, the Court of Appeals correctly held that:jgc:chanrobles.com.ph

"Both plaintiff-appellee and defendant-appellant being relatives of the decedent within the third degree in the collateral line, each, therefore, shall succeed to the subject estate without distinction of line or preference among them by reason of relationship by the whole blood, and is entitled to one -half (1/2) share and share alike of the estate." (p. 57, Rollo) IV. The question of Concordias one-half share

However, inasmuch as Concordia had agreed to deliver the estate of the deceased to the foundation in honor of his mother, Salustia Solivio Vda. de Javellana (from whom the estate came), an agreement which she ratified and confirmed in her "Motion to Reopen and/or Reconsider Order dated April 3, 1978" which she filed in Spl. Proceeding No. 2540:jgc:chanrobles.com.ph "4. That . . . prior to the filing of the petition they (petitioner Celedonia Solivio and movant Concordia Javellana) have agreed to make the estate of the decedent a foundation, besides they have closely known each other due to their filiation to the decedent and they have been visiting each others house which are not far away for (si c) each other." (p. 234, Record; Emphasis supplied) she is bound by that agreement. It is true that by that agreement, she did not waive her inheritance in favor of Celedonia, but she did agree to place all of Estebans estate in the "Salustia Solivio Vda . de Javellana Foundation" which Esteban, Jr., during his lifetime, planned to set up to honor his mother and to finance the education of indigent but deserving students as well. Her admission may not be taken lightly as the lower court did. Being a judicial admission, it is conclusive and no evidence need be presented to prove the agreement (Cunanan v. Amparo, 80 Phil. 227; Granada v. Philippine National Bank, L-20745, Sept. 2, 1966, 18 SCRA 1; Sta. Ana v. Maliwat, L-23023, Aug. 31, 1968, 24 SCRA 1018; People v. Encipido, G.R. 70091, Dec. 29, 1986, 146 SCRA 478; and Rodillas v. Sandiganbayan, G.R. 58652, May 20, 1988, 161 SCRA 347).chanrobles virtual lawlibrary The admission was never withdrawn or impugned by Concordia who, significantly, did not even testify in the case, although she could have done so by deposition if she were supposedly indisposed to attend the trial. Only her husband, Narciso, and son-in-law, Juanito Domin, actively participated in the trial. Her husband confirmed the agreement between his wife and Celedonia, but he endeavored to dilute it by alleging that his wife did not intend to give all, but only one-half, of her share to the foundation (p. 323, Record) The records show that the "Salustia Solivio Vda. de Javellana Foundation" was established and duly registered in the Securities and Exchange Commission under Reg. No. 0100027 for the following principal purposes:jgc:chanrobles.com.ph "1. To provide for the establishment and/or setting-up of scholarships for such deserving students as the Board of Trustees of the Foundation may decide of at least one scholar each to study at West Visayas State College, and the University of the Philippines in the Visayas, both located in Iloilo City. "2. To provide a scholarship for at least one scholar for St. Clements Redemptorist Community for a deserving student who has the religious vocation to become a priest. "3. To foster, develop, and encourage activities that will promote the advancement and enrichment of the various fields of educational endeavors, especially in literary arts. Scholarships provided for by this foundation may be named after its benevolent benefactors as a token of gratitude for their contributions. "4. To direct or undertake surveys and studies in the community to determine community needs and be able to alleviate partially or totally said needs. "5. To maintain and provide the necessary activities for the proper care of the Solivio-Javellana mausoleum at Christ the King Memorial Park, Jaro, Iloilo City, and the Javellana Memorial at the West Visayas State College, as a token of appreciation for the contribution of the estate of the late Esteban S. Javellana which has made this foundation possible. Also, in perpetuation of his Roman Catholic beliefs and those of his mother, Gregorian masses or their equivalents will be offered every February and October, and Requiem masses every February 25th and October 11th, their death anniversaries, as part of this provision.

"6. To receive gifts, legacies, donations, contributions, endowments and financial aids or loans from whatever source, to invest and reinvest the funds, collect the income thereof and pay or apply only the income or such part thereof as shall be determined by the Trustees for such endeavors as may be necessary to carry out the objectives of the Foundation. "7. To acquire, purchase, own, hold, operate, develop, lease, mortgage, pledge, exchange, sell, transfer, or otherwise, invest, trade, or deal, in any manner permitted by law, in real and personal property of every kind and description or any interest herein. "8. To do and perform all acts and things necessary, suitable or proper for the accomplishments of any of the purposes herein enumerated or which shall at any time appear conducive to the protection or benefit of the corporation, including the exercise of the powers, authorities and attributes concerned upon the corporation organized under the laws of the Philippines in general, and upon domestic corporation of like nature in particular." (pp. 9-10, Rollo) As alleged without contradiction in the petition for review:jgc:chanrobles.com.ph

"The Foundation began to function in June, 1982, and three (3) of its eight Esteban Javellana scholars graduated in 1986, one (1) from UPV graduated Cum Laude and two (2) from WVSU graduated with honors; one was a Cum Laude and the other was a recipient of Lagos Lopez award for teaching for being the most outstanding student teacher. "The Foundation has four (4) high school scholars in Guiso Barangay High School, the site of which was donated by the Foundation. The School has been selected as the Pilot Barangay High School for Region VI. "The Foundation has a special scholar, Fr. Elbert Vasquez, who would be ordained this year. He studied at St. Francis Xavier Major Regional Seminary at Davao City. The Foundation likewise is a member of the Redemptorist Association that gives yearly donations to help poor students who want to become Redemptorist priests or brothers. It gives yearly awards for Creative writing known as the Esteban Javellana Award. "Further, the Foundation had constructed the Esteban S. Javellana Multipurpose Center at the West Visayas State University for teachers and students use, and has likewise contributed to religious, civic and cultural fund -raising drives, amongst others." (p. 10, Rollo) Having agreed to contribute her share of the decedents estate to the Foundation, Concordia is obligated to honor her commitment as Celedonia has honored hers. WHEREFORE, the petition for review is granted. The decision of the trial court and the Court of Appeals are hereby SET ASIDE. Concordia J. Villanueva is declared an heir of the late Esteban Javellana, Jr. entitled to one-half of his estate. However, comformably with the agreement between her and her co-heir, Celedonia Solivio, the entire estate of the deceased should be conveyed to the "Salustia Solivio Vda. de Javallana Foundation," of which both the petitioner and the private respondent shall be trustees, and each shall be entitled to nominate an equal number of trustees to constitute the Board of Trustees of the Foundation which shall administer the same for the purposes set forth in its charter. The petitioner, as administratrix of the estate, shall submit to the probate court an inventory and accounting of the estate of the deceased preparatory to terminating the proceedings therein. SO ORDERED.

[G.R.

No.

L-20241.

November

22,

1974.]

IN THE APPLICATION FOR REGISTRATION OF ONE PARCEL OF LAND SITUATED AT PANAKAGAN, PATIIS, SAN MATEO, RIZAL, LUIS R. SANTIAGO, Applicant-Appellant, v. PACITA V. DE LOS SANTOS and BUREAU OF FORESTRY, Oppositors-Appellees. Luna & Manalo for applicant-appellant.

Fortunato de Leon for private Oppositor-Appellee.

DECISION

FERNANDO, J.:

It is an occurrence, not too often repeated, that counsel, either through a display of candor, which is commendable, or a failure to appreciate the untoward consequences, which is something else again, submits a pleading, which on its face demonstrates the lack of merit of the action he has filed. It did happen here. Plaintiff, now appellant, applied for registration of a parcel of land. In a motion to set the case for hearing, he attached documents indicative of the land being public in character, thus lending support to the opposition of the Director of Forestry, the Director of Lands, and a certain Pacita V. de los Santos. The then Judge Cecilia Muoz Palma, now an Associate Justice of this Court, dismissed the suit. Its reversal is sought in this appeal. It is to be admitted that the brief submitted by new counsel, the firm of Luna and Manalo, is both thorough and comprehensive. It does not, however, avail. The infirmity of the case for appellant is incurable. We affirm. The facts of the case and why it should be dismissed are set forth with clarity in the appealed order of the then Judge Muoz Palma. Thus: "This is an application filed by Luis R. Santiago for registration of his title over a parcel of land containing an area of 1,288,337 sq. meters located in San Mateo, Rizal. The application is opposed by the Director of Lands, Director of Forestry and by Mrs. Pacita V. de los Santos. On September 15, 1961, after examination of the records, this Court ordered the applicant to show cause why his application should not be dismissed outright on the ground that the property applied for is part of the public domain. Subsequently, motions to dismiss the application were filed by the oppositor Pacita V. de los Santos and the Director of Forestry which motions are principally based on the allegation that the property applied for is a portion of the public domain which was leased to Mrs. Pacita de los Santos under Pasture Lease Agreement No. 1305. After due consideration of the allegations of said oppositors and taking into account certain documents existing in the records of this case, we find the Motion to Dismiss to be justified and meritorious. The Court makes reference to the documents attached to applicants motion dated August 24, 1961 all of which show that the land object of this registration proceeding is part of the public domain which was leased under Pasture Lease Agreement No. 1305 to the oppositor Pacita V. de los Santos and which was excluded from said lease agreement only in the month of August this year." 1 Even the most cursory reading of the order of dismissal can lead to no other conclusion except that it should be affirmed. It would be an affront to reason if on the undisputed facts, there would be any other outcome. It does follow therefore that notwithstanding the vigor with which the appeal is prosecuted by new counsel, it does not and cannot suffice for a reversal. 1. The pleading that left no choice to the then Judge Muoz Palma except to dismiss the case reads thus:" [Comes now] the Applicant by the undersigned counsel to this Honorable Court respectfully request that the above-entitled Land Registration Case be calendared for hearing in view of the fact that a portion of the said parcel of land subject of this registration which was claimed as part of the public forest has already been released by the Honorable Secretary of Agriculture and Natural Resources for agricultural purposes as evidenced by its order dated August 10, 1961, . . ." 2 Attached to such pleading were the documents, which, in the language of the then Judge Palma, "show that the land object of this registration proceeding is part of the public domain . . ." Former counsel ought to have realized the fatal effect on his clients case of such an admission. If it were hi s intention to demolish entirely the pretension of plaintiff to the claim that he had been in open, public, uninterrupted, peaceful and adverse possession in the concept of owner from July 26, 1894 up to the present, he could not have succeeded any better. What was so categorically therein set forth as to such parcel of land being a part of a public forest, although thereafter released by the Secretary of Agriculture and Natural Resources for agricultural purposes, is conclusive and binding. Our decisions from Irlanda v. Pitargue, 3 announced in a 1912 decision, to De Borja v. Vda. de Borja, 4 promulgated in 1972, speak to that effect. "It is a familiar doctrine," according to Justice J.B.L. Reyes in Joes Radio & Electrical Supply v. Alto Electronics Corp., 5 "that an admissi on made in the pleadings cannot be controverted by the party making such admission and are conclusive as to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether objection is interposed by the party or not . . ." 6 Even if there had been a full hearing on the case, therefore, the result would not have been any different. There was no

choice

then

for

the

lower

court

except

to

dismiss

the

complaint.

2. Laboring under such a handicap, how did the present counsel for plaintiff, the law firm of Luna and Manalo, seek to extricate him from a predicament of his own making? It would rely on certain procedural doctrines; more specifically, it would insist on the motion to dismiss of oppositor Pacita V. de los Santos as not being entitled to recognition as there was a general order of default except as to the Bureau of Lands and the Bureau of Forestry, not lifted as to her, and that she had no interest to oppose the application of the registration of her land, although admittedly there was a claim on her part under a pasture lease agreement in her favor. Hence the plea for the order of dismissal being set aside and plaintiff being allowed to present evidence. What purpose, it may pertinently be asked, would be served thereby if, after the time-consuming effort, it would clearly appear that plaintiff could not in truth show that there was such an open, uninterrupted, peaceful and adverse possession in the concept of owner? Nor is it to be forgotten that in the motion to dismiss of oppositor de los Santos, it was stated: "That the son of applicant Luis Santiago, namely Juanito S. Santiago, was one time the Lessee of the aforesaid timber area sought to be registered by him under Pasture Lease Agreement No. 182 on April 18, 1955, which Lease Agreement was cancelled by the Government on August 18, 1958 for failure of Lessee Santiago to make the improvements and comply otherwise with the terms and conditions of the Lease Contract; . . ." 7 There was no denial of such allegation. It is quite obvious then that the facts, no less than the law, call for precisely the conclusion reached by the then Judge Muoz Palma. There is here once more an apt illustration of the Moreland dictum in Alonso v. Villamor: 8 "Technicality, when it deserts its proper office as an aid to justice and becomes its great hindrance and chief enemy, deserves scant consideration from courts." 9 So, too, is this excerpt from an opinion of Chief Justice Moran in Co Tiamco v. Diaz: 10 "Rules of pleading are intended to secure a method by which the issues may be properly laid before the court. When those issues are already clear before the court, the deficiency in the observance of the rules should not be given undue importance. What is important is that the case be decided upon the merits and that it should not be allowed to go off on procedural points." 11 To show how committed is this Court to such a doctrine, reference may be made to the opinion in Economic Insurance Company, Inc. v. Uy Realty Company: 12 "It is understandable for a party in the situation of petitioner to make full use of every conceivable legal defense the law allows it. In the appraisal; however, of such attempts to evade liability to which a party like petitioner should respond, it must ever be kept in mind that procedural rules are intended as an aid to justice, not as a means for its frustration. Even if the petition were impressed with a greater degree of plausibility, it would be, considering all the circumstances, to crown with success an unworthy scheme to evade a just obligation by perverting the ends procedural requisites are intended to accomplish. Not once but several times, from Alonso v. Villamor, we have stressed that we are not to lend the imprimatur of our approval to any such effort, the result of which would be to render illusory substantive rights. We do so again. Technicalities, in the appropriate language of Justice Makalintal, should give way to the realities of the situation." 13 Well could Justice Cardozo observe: "A syste m of procedure is perverted from its proper function when it multiplies impediments to justice without the warrant of clear necessity." 14 3. The appealed order of dismissal is thus impressed with merit. It has likewise in its favor the soundest policy considerations, based no less on one of the prime objectives of the fundamental law. Both under the 1935 and the present Constitutions, the conservation no less than the utilization of the natural resources is ordained. 15 There would be a failure to abide by its command if the judiciary does not scrutinize with care applications to private ownership of real estate. To be granted, they must be grounded in well-nigh incontrovertible evidence. It is a basic assumption of our polity that lands of whatever classification belong to the state. 16 Unless alienated in accordance with law, it retains its rights over the same as dominus. Its disposition is justified only when shown that its utilization promotes the public welfare. Especially so in case of doubt, considering that our forest resources have been unduly depleted, courts should no lightly accept claims that a parcel of land no longer can be classified as forestal. That is certainly one mode of assuring the realization of the national patrimony being held in trust for future generations. There is thus fealty to the ideal of conservation. WHEREFORE, the appealed order of November 17, 1961 of the then Judge Muoz Palma is affirmed. Costs against appellant Luis R. Santiago. Makalintal, C.J., Antonio, Fernandez and Aquino, JJ., concur.

[G.R.

No.

L-37420.

July

31,

1984.]

MACARIA A. TORRES, Petitioner, v. COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, Respondents. [G.R. No. L-37421. July 31, 1984.]

MACARIA A. TORRES, Petitioner, v. COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO, BALDOMERO BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA NARCISO, CESARIO PUNZALAN, TOMAS NARCISO and AMADO NARCISO,Respondents. Juan Cesar Nocon for Respondents. R. Liwag for Petitioner.

DECISION

MELENCIO-HERRERA, J.:

This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by the then Court of Appeals in the consolidated cases, CA-G.R. No. 34998-R entitled "Macaria A. Torres, plaintiff-appellee v. Vicente Santillan, Et Al., defendants-appellants", and CA-G.R. No. 34999-R entitled "Vicente Santillan, Et Al., plaintiffs-appellants v. Macaria A. Bautista, Et Al., defendants-appellees", and the Resolution denying the Motion for Reconsideration and Petition for New Trial, be set aside; and that, instead, the Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be remanded to it for new trial. Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622 square meters, covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of Margarita Torres. The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime, was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura), Demetria (married to Leonardo Quinto), Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the institution of the cases, while Vicente died on June 4, 1957, 2 during the pendency of the cases in the Trial Courts, without progeny. After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of Tanza, Cavite, Leon Arvisu (Arbole) and Margarita Torres were named as father and mother of petitioner, whose name was listed as "Macaria Arvisu." (Exhibit "C"). Another Baptismal Certificate, however, listed her name as Macaria Torres, while her fathers name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents. Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit "E"). Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was paid on December 17, 1936, or three (3) years after his death.chanrobles.com : virtual law library On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of P300.00. 3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name of said heirs. On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without their consent, constructed a house, and refused to vacate upon demand. For her part, petitioner claimed that she is a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case was decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was docketed as Civil Case No. 5547 (Ejectment Case). On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated child. Private respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that they are her only heirs, and that the complaint for partition should be dismissed. The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding that Lot No. 551 is the paraphernal property of Margarita Torres, and adjudicating to private respondents two-thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion. 4 Petitioner moved for reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was burned, resulting in the complete destruction of the records of the two cases, which, however, were later partially reconstituted. On August 7, 1963, the then Court of First Instance of Cavite, Branch I, issued an Order granting reconsideration and amending the Decision of November 20, 1958. The dispositive portion thereof reads as follows:cralawnad "Wherefore, judgment is hereby rendered in Civil Case No. 5505:chanrob1es virtual 1aw library

(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and Margarita Torres; (2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres; (3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition. As Without In concluding that to Civil Case costs petitioner is a No. in legitimated child, 5547, the both the Trial Court same is hereby cases." dismissed. 5

opined:jgc:chanrobles.com.ph

"It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole and Margarita Torres, had the capacity to marry each other. There was no legal impediment for them to marry. It has also been established that Macaria A. Torres had been taken care of, brought up and reared by her parents until they died. The certificate of baptism (Exh.G) also shows that Macaria Torres was given the family name of Arvisu, which is also the family name of her father, Leon Arbole, and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case, Macaria A. Torres possessed the status of an acknowledged natural child. And when her parents were married on June 7, 1909, she became the legitimated daughter of Leon Arbole and Margarita Torres." 6 Private respondents appealed. On April 2, 1973, the then Court of Appeals 7 rendered the judgment sought to be set aside herein, the decretal part of which states:jgc:chanrobles.com.ph "Wherefore, judgment is hereby rendered in Civil Case No. 5505:chanrob1es virtual 1aw library

(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres; (2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres; and (3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the other half (1/2) in equal shares to Alfredo. Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition. As Without The Appellate to Civil Case costs Court was No. in of the 5547, the both opinion same is hereby cases." dismissed. 8

that:jgc:chanrobles.com.ph

"Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the former not having been legally acknowledged before or after the marriage of her parents. As correctly pointed out by the appellants in their brief, the fact that she was taken cared of, brought up and reared by her parents until they died, and that the certificate of baptism (Exhibit C) shows that she was given the family name of Arvisu did not bestow upon her the status of an acknowledged natural child. "Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered legitimated by subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof, and Article 131 of the same code provides that the acknowledgment of a natural child must be in the record of birth, in a will or in some public document. Article 131 then prescribed the form in which the acknowledgment of a natural child should be made. The certificate of baptism of Macaria A. Torres (Exhibit C) is not the record of birth referred to in Article 131. This article of the old Civ il Code requires that unless the acknowledgment is made in a will or other p ublic document, it must be made in the record of birth, or in other words, in the civil register (Samson v. Corrales Tan, 48 Phil. 405)." 9 A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930 of spouses Leon Arvisu (Arbole) and Margarita Torres, 10 reading in full as follows:jgc:chanrobles.com.ph "SWORN STATEMENT

"We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law depose and say. "That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26th of June 1898 at Tanza, Cavite, but as stated she was legitimized by our subsequent marriage. "That at the time of her birth or conception, we, her parents could have married without dispensation had we desired. "That as natural child our aforesaid daughter was surnamed de Torres after that of her mothers at the time she was baptized as per record on file in the Church. "That as a legitimized daughter she should now be surnamed Arvisu after her fathers family name.

"Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the change of the surname of said Macaria de Torres as desired. "In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

(Thumbmarked) LEON ARVISU MARGARITA

(Thumbmarked) TORRES

Signed

in

the

presence

of:chanrob1es

virtual

1aw

library

(Sgd.) Illegible (Sgd.) Macaria de Bautista x x x

"UNITED PHILIPPINE MUNICIPALITY PROVINCE

STATES

OF

AMERICA) ISLANDS)

OF OF

TANZA)ss CAVITE)

"Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to me no cedula certificate being exempt on account of going over 60 years of age and Margarita Torres having exhibited no cedula certificate being exempt on account of her sex. "Witness CONSTANCIO Notary Until Not. Page Book No. III Public, Dec. Reg. No. Series of 1930." my hand and seal of office T. Cavite 31, No. on the date and place aforesaid. VELASCO Province 1930. 56 2 11

The reason given for the non-production of the notarial document during trial was that the same was only found by petitioners daughter, Nemensia A. Bautista, among the personal belongings of private respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to suppress it. Private respondents, for their part, argued against new trial, and contended that it is not newly discovered evidence which could not have been produced during the trial by the exercise of due diligence. The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was considered, there was disagreement, possibly as to whether or not new trial should be granted in respect of the sworn statement of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio Lucero, Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote of three or two, denied both reconsideration and new trial. To warrant review, petitioner has summarized her submission based on two assignments of error. The first was expressed as follows:jgc:chanrobles.com.ph "Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts the admission made by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina Santillan." (Emphasis ours) As we understand it, petitioner has conceded. with which we concur, that, without taking account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic recognition, but an action for compulsory recognition is still

necessary, which action may be commenced only during the lifetime of the putative parents, subject to certain exceptions. 12 The admission adverted to appears in paragraph 3 of private respondents original complaint in the Ejectment Case reading:jgc:chanrobles.com.ph "the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20, 1931." (Emphasis supplied). The statement, according to petitioner, is an admission of her legitimation and is controlling in the determination of her participation in the disputed property. We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case, the underlined portion was deleted so that the statement simply read:jgc:chanrobles.com.ph "That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza, Cavite, on December 20, 1931."cralaw virtua1aw library In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned and ceases to perform any further function as a pleading. The original complaint no longer forms part of the record. 13 If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. Contrary to petitioners submission, therefore , there can be no estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence. 14 It should also be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the legitimacy of petitioner. The second error attributed to the Appellate Court has been pleaded as follows:jgc:chanrobles.com.ph

"Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial, knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered and no amount of diligence on the part of the petitioner could it be produced in court at any time before it was offered as it was found from the personal belongings of Vicente Santillan, an adverse party, after his death."cralaw virtua1aw library It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming that the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance with procedural due process, a new trial would resolve such vital considerations as (1) whether or not said Sworn Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to an act of acknowledgment by the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and (3) whether or not petiti oners signature as a witness to said document was the equivalent of the consent necessary for acknowledgment of an adult person under Article 133 of that Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to her mothers estate. Private respondents stress that since petitioner signed as a witness to the document, she should be chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In our view, the document can reasonably qualify as newly discovered evidence, which could not have been produced during the trial even with the exercise of due diligence; specially if it really had been in the possession of Vicente Santillan, an adverse party who, it was alleged, suppressed the document. In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now empowered to do so under Section 9 of Batas Pambansa Blg. 129.chanrobles law library : red WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and depending on its outcome, said Court shall also resolve the respective participation of the parties in the disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs. SO ORDERED.

Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

[G.R.

No.

108028.

July

30,

1996.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. CRISTINA M. HERNANDEZ, Accused-Appellant.

DECISION

FRANCISCO, J.:

Accused-appellant Cristina Hernandez was charged with the crime of illegal recruitment committed in large scale in violation of Article 38 (a) and (b) in relation to Article 13 (b) and (c) of the New Labor Code 1 , committed as follows:jgc:chanrobles.com.ph "That in or about and during the period comprised between December 14, 1988 to December 24, 1988, inclusive in the City of Manila, Philippines, the said accused representing herself to have the capacity to contract, enlist and transport Filipino workers for employment abroad, did then and there willfully and unlawfully for a fee, recruit and promise employment/job placement abroad to the following persons to wit: ROGELIO N. LEGASPI, ULDARICO P. LEGASPI, SONNY P. BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE, ARNOLD P. VALENZUELA, ARMANDO P. PAGULAYAN, GREGORIO P. MENDOZA, JR., RONALD T. CORREA, DANILO PALAD and ROBERT P. VELASQUEZ (hereafter known as private complainants) without first having secured the required license or authority from the POEA." 2 (Emphasis supplied.) Upon arraignment, appellant pleaded not guilty and trial on the merits ensued. Of the fourteen (14) private complainants, four (4) were presented as witnesses for the prosecution, namely; Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and Arnel Mendoza. They testified to the following essential facts: Private complainants first encounter with the appellant was on December 12, 1988 when one Josefa Cinco accompanied them to the office of the Philippine Thai Association, Inc. (PhilippineThai) in Ermita, Manila to meet the appellant. Introducing herself as the general manager of Philippine-Thai, appellant asserted that her company recruited workers for placement abroad and asked private complainants if they wanted to work as factory workers in Taipeh. Enticed by the assurance of immediate employment and an $800 per month salary, private complainants applied. Appellant required private complainants to pay placement and passport fees in the total amount of P22,500.00 per applicant, to be paid in three installments, to wit: P1,500 on December 14, 1988, P10,000.00 on December 16, 1988 and P11,000.00 on December 22, 1988. When the complainants-witnesses paid the first two installments, they were issued receipts by Liza Mendoza, the alleged treasurer of Philippine-Thai signed by the latter in the presence of the appellant. The receipts for the last installment paid by them were signed by Liza Mendoza, and the appellant. After having received the entire amount 3 from the witnesses, appellant assured them that they would be able to leave for Taipeh sometime before the end of December, 1988. But contrary to appellants promise, complainants -witnesses were unable to leave for abroad. They demanded for the return of their money but to no avail. Appellants unfulfilled promise of employment and her refusal to return the money that had been paid by way of placement and passport fees, triggered the filing of the complaint. For its part, the defense presented as its lone witness, the appellant whose testimony consisted mainly in denying the charges against her. Appellant claimed that she never met any of the complainants nor did she ever recruit any of them. She likewise denied having received money from anyone and asserted that she did not know any Liza Mendoza who is she alleged treasurer of Philippine-Thai. Appellant maintained that although she had an office in Ermita Building located at Arquiza Street, Ermita, Manila, the said office belonged to B.C. Island Wood Products Corporation which was engaged in the logging business. However, when questioned further, appellant admitted being the president of Philippine-Thai but only in a nominal capacity, and claimed that as nominee-president, she did not participate in any of its transactions. Appellant likewise insisted that Philippine-Thai was engaged solely in the barong tagalog business. After careful calibration of the evidence presented by the prosecution and the defense, the court a quo rendered a decision holding that the defense of "denial" interposed by the accused could not prevail over the positive and clear testimonies of the prosecution witnesses which had established the guilt of the accused beyond reasonable doubt 4 the dispositive portion of the decision reads:jgc:chanrobles.com.ph "WHEREFORE, premises considered, this Court hereby finds that the accused CRISTINA HERNANDEZ, (sic) guilty beyond reasonable doubt of the crime of illegal recruitment, committed in large scale, as defined in Article 38(a) & (b) of Presidential decree No. 1412, . . . in relation to Article 13 (b) and (c) . . ., accordingly, sentences the accused to suffer the penalty of life imprisonment (RECLUSION PERPETUA) with the accessory penalties provided for by law; to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND AND FIVE HUNDRED (P28,500) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO

THOUSAND AND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs. SO Manila, Philippines, November 29, 1991." ORDERED. 5

Appellant comes to this Court for the reversal of the judgment of conviction the following errors against the lower court. I

THE TRIAL COURT ERRED IN FINDING THE ACCUSED "LIABLE OF (sic) ILLEGAL RECRUITMENT COMMITTED IN A LARGE SCALE AND BY A SYNDICATED (sic)" FOR HAVING "MAINTAINED OFFICE WITHOUT LICENSE OR REGISTRATION FROM THE DEPARTMENT OF LABOR, THRU ITS OFFICE, THE PHILIPPINE OVERSEAS EMPLOYMENT ADMINISTRATION (POEA)."cralaw virtua1aw library II

THE TRIAL COURT ERRED IN TAKING JUDICIAL NOTICE OF THE "FACT THAT ACCUSED CRISTINA M. HERNANDEZ HAD BEEN CHARGED . . . OF ANOTHER ILLEGAL RECRUITMENT . . . DOCKETED AS CRIMINAL CASE NO. 88-62599" AND IN CONSIDERING THE PENDENCY THEREOF AS EVIDENCE OF THE "SCHEME AND STRATEGY ADOPTED BY THE ACCUSED . . . AND PRACTICED WITH THE HELP OF HER AGENTS AND OTHER PERSONS WORKING UNDER THE SHADE OF HER PROTECTION."cralaw virtua1aw library III

THE TRIAL COURT ERRED IN NOT GIVING CREDENCE OR WEIGHT TO THE DEFENSE OF THE ACCUSED. 6 The first assignment of error is anchored on the contention that the prosecution failed to prove one of the essential elements of the crime of illegal recruitment that the offender is a non-licensee or non-holder of authority to lawfully engage in the recruitment and placement of workers. 7 The aforementioned element, specifically the fact that neither appellant nor PhilippineThai was licensed or authorized to recruit workers as shown by the records of the POEA, was the subject of a stipulation proposed by the prosecution and admitted by the defense during trial. Appellant assails as erroneous the reliance placed by the prosecution on the said stipulation of facts in dispensing with the presentation of evidence to prove the said element of the crime of illegal recruitment. Appellant argues that: (1) the stipulation of facts was not tantamount to an admission by the appellant of the fact of non-possession of the requisite authority or license from the POEA, but was merely an admission that the Chief Licensing Officer of the POEA, if presented in court, would testify to this fact, and (2) the stipulation of facts is null and void for being contrary to law and public policy. Appellant posits the foregoing arguments to bolster her contention that the stipulation of facts did not relieve the prosecution of its duty to present evidence to prove all the elements of the crime charged to the end that the guilt of the accused may be proven beyond reasonable doubt. At the outset, it should be said that the above contention and the arguments are insignificant in view of the fact that records disclose that the prosecution had in fact presented evidence to prove the said element of the crime of illegal recruitment. "EXHIBIT I", a certification issued by the Chief Licensing Branch of the POEA, attesting to the fact that neither appellant nor Philippine-Thai is licensed/authorized to recruit workers for employment abroad, was offered and admitted in evidence without the objection of the appellant. 8 Although appellants arguments find no significant bearing in the face of the existence of "EXHIBIT I", they nonetheless require deeper scrutiny and a clear response for future application. Hence, the following discussion. Appellant correctly distinguishes between an admission that a particular witness if presented in court would testify to certain facts, and an admission of the facts themselves. According to the appellant, what was stipulated on between the prosecution and defense counsel at the hearing on June 6, 1990 was "merely that the testimony of the Chief Licensing Officer of the POEA would be to the effect that appellant is not licensed nor authorized to recruit workers", 9 Thus:jgc:chanrobles.com.ph "Prosecutor

. . . Before we call on our first witness, we propose some stipulations regarding the testimony of the Chief Licensing Branch of the POEA that Cristina Hernandez is not a (sic) licensed nor authorized by the Department of Labor to recruit workers abroad. Court Would Atty. Ulep (Counsel for the you Accused): Agreed, Your Honor." agree? 10

She claims that the foregoing clearly indicate that there was no judicial admission of the fact of non-possession of a license/authority but rather a mere admission that the witness, if presented, would testify to such fact. This being the case, it remained incumbent upon the prosecution to present evidence of such fact. To buttress her position, the following was cited to note the distinction:jgc:chanrobles.com.ph "Suppose a case is set for trial and one of the parties moves for a continuance because of the absence of W, an important witness. His opponent, who is anxious to go to trial; asks what are the facts to which W would testify. The other attorney tells him, adding: If I consent to the overruling of my motion, will you stipulate that those are the facts? The attorney who is pressing for trial says: No but I will stipulate that if W were called in this case as a witness, he would so testify. What is the difference betwee n the two stipulations? In the first stipulation proposed there is a judicial admission of the facts, and they cannot be contradicted. But the second stipulation proposed will only have the same effect as if the witness had testified to the facts. Such testimony the party is free to contradict." 11 The distinction, though cogent, is unfortunately inapplicable to the case at bar. Conveniently omitted from the appellants r eply brief is the ensuing statement made by the court after counsel for the accused, Atty. Ulep agreed to the stipulation proposed by the prosecution, to wit:chanrob1es virtual 1aw library Atty. Court The prosecution and the defense agreed to stipulate/admit that from the record of the POEA Licensing and Regulation Office, Dept. of Labor and Employment, Accused Cristina Hernandez/Phil. etc., . . . is neither licensed nor authorized by that office to recruit workers overseas abroad and that if the duly authorized representative from the POEA Administration is to take the witness stand, he will confirm to this fact as borne by the records. 12 ( Emphasis supplied.) From the foregoing, it is evident that the prosecution and the defense counsel stipulated on two things: that." . . from the record of the POEA, . . . accused Cristina Hernandez, Phil. etc. Ass. . . . is neither licensed nor authorized by that office to recruit workers for overseas abroad and that if the duly authorized representative from the POEA Administration (sic) is to take the witness stand, he will confirm to this fact . . ." 13 The claim that the lower court mistakenly interpreted defense counsels acquiescence to the prosecutions proposed stipulation as an admission of non -possession of the requisite POEA license or authority is belied by the fact after the above enunciation by the court, no objection was interposed by defense counsel. Appellant further contends that granting arguendo that defense counsel had in fact agreed to the above stipulation of facts, the same is null and void for being contrary to the well-established rule that a stipulation of facts is not allowed in criminal cases. To bolster this contention, appellant cited the consistent ruling of this Court on the matter. Thus, as held in the case of U.S. v. Donato: 14 "Agreements between attorneys fort he prosecution and for the defense in criminal cases, by which it is stipulated that certain witnesses, if present, would testify to certain facts prevent a review of the evidence by the Supreme Court and are in violation of the law." 15 The above ruling was reiterated in a subsequent case where the accused was convicted solely on the basis of an agreement between the fiscal and the counsel for the accused that certain witnesses would testify confirming the complaint in all its part. In reversing the judgment of the conviction, this Court held that:jgc:chanrobles.com.ph "It is neither proper nor permissible to consider a case closed, or to render judgment therein, by virtue of an agreement entered into between the provincial fiscal and the counsel for the accused with reference to facts, some of which are favorable to the Ulep (counsel for the accused): Agreed, Your Honor.

defense, and others related to the prosecution, without any evidence being adduced or testimony taken from the witnesses mentioned in the agreement; such practice is not authorized and defeats the purposes of criminal law; it is an open violation of the rules of criminal procedure . . ." 16 The rule prohibiting the stipulation of facts in criminal cases is grounded on the fundamental right of the accused to be presumed innocent until proven guilty, and the corollary duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. It is therefore advanced that the prosecution being duty-bound to prove all the elements of the crime, may not be relieved of this obligation by the mere expedient of stipulating with defense counsel on a matter constitutive of an essential elements of the crime charged. The rational behind the proscription against this class of agreements between prosecution and defense was enunciated in the case of U.S. v. Manlimos: 17 "It is not supposed to be within the knowledge or competence of counsel to predict what a proposed witness shall say under the sanction of his oath and the test of cross-examination. A conviction for crime should not rest upon mere conjecture. Nor is it possible for a trial court to weigh with exact nicety the contradictory declaration of witnesses not produced so as to be subjected to its observation and its judgment as to their credibility." 18 However, in the light of recent changes in our rules on criminal procedure, particularly the pre-trial found in Rule 118, the prohibition against a stipulation of facts in criminal cases no longer holds true. Rule 118 provides the following:jgc:chanrobles.com.ph "Section 1. Pre-trial; when proper To expedite trial, where the accused and counsel agree, the court shall conduct a pre-trial conference on the matters enunciated in Section 2 hereof, without impairing the rights of the accused. Sec. 2 Pre-trial conference; subjects . . . The pre-trial conference shall consider the following:chanrob1es virtual 1aw library (a) (b) . . Stipulation ." Plea of (Emphasis bargaining; facts; supplied)

By virtue of the foregoing rule, a stipulation of facts in criminal cases is now expressly sanctioned by law. In further pursuit of the objective of expediting trial by dispensing with he presentation of evidence on matters that the accused is willing to admit, a stipulation of facts should be allowed not only during pre-trial but also and with more reason, during trial proper itself. Parenthetically, although not expressly sanctioned under the old rules of court, a stipulation of facts by the parties in criminal cases has long been allowed and recognized as declarations constituting judicial admissions, hence, binding upon the parties. In the case of People v. Mapa 19 where the accused was charged with illegal possession of firearms, the prosecution and the defense stipulated on the fact that the accused was found in possession of a gun without the requisite permit or license. More at point is the case of People v. Bocar 20 wherein the fiscal proposed the admission by the accused of the affidavits and other exhibits already presented by the prosecution to dispense with oral testimonies on the matter. Holding that the admissions made by the parties were binding, this Court stated that:jgc:chanrobles.com.ph ". . . [T]here is nothing unlawful or irregular about the above procedure. The declarations constitute judicial admissions, which are binding on the parties, by virtue of which the prosecution dispensed with the introduction of additional evidence and the defense waived the right to contest or dispute the veracity of the statements contained in the exhibits." 21 ( Emphasis supplied.) American jurisprudence has established the acceptability of the practice of stipulating during the trial of criminal cases, and categorically stated in People v. Hare 22 that:jgc:chanrobles.com.ph "That record discloses that the defense counsel stipulated to what certain witnesses would testify if they were present in court. . . . . . . The defendant contends that it was error for his counsel to make these stipulations. This court has held that an accused may by stipulation waive the necessity of proof of all or any part of the case which the people have alleged against him and that having done so, he cannot complain in this Court of evidence which he has stipulated into the record. 23 The corollary issue left for the determination of this Court is whether or not Section 4 of Rule 118 requiring an agreement or

admission made or entered during the pre-trial conference to be reduced in writing and signed by the accused and his counsel before the same may be used in evidence against the accused equally applies to a stipulation of facts made during trial. We resolved this issue in the negative. A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: ". . . an attorney who is employed to manage a partys con duct of a lawsuit . . . has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, . . . which unless allowed to be withdrawn are conclusive." 24 (Emphasis supplied.) In fact, "judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made . . . for the purpose of dispensing with proof of some fact, . . . they bind the client, whether made during, or even after, the trial."25cralaw:red The foregoing find basis in the general rule that a client bound by the acts of his counsel who represents him. 26 For all intents and purposes, the acts of a lawyer in the defense of a case are the acts of his client. The rule extends even to the mistakes and negligence committed by the lawyer except only when such mistakes would result in serious injustice to the client. 27 No cogent reason exists to make such exception in this case. It is worth noting that Atty. Ulep, appellants counsel in the lower c ourt, agreed to the stipulation of facts proposed by the prosecution not out of mistake nor inadvertence, but obviously because the said stipulation of facts was also in conformity to defenses theory of the case. It may be recalled that throughout the ent ire duration of the trial, appellant staunchly denied ever having engaged in the recruitment business either in her personal capacity or through Philippine-Thai. Therefore, it was but logical to admit that the POEA records show that neither she nor Philippine-Thai was licensed or authorized to recruit workers. It is true that the rights of an accused during trial are given paramount importance in our laws on criminal procedure. Among the fundamental rights of the accused is the right to confront and cross-examine the witnesses against him. 28 But the right of confrontation guaranteed and secured to the accused is a personal privilege which may be waived. 29 Thus, in the case of U.S. v. Anastasio, 30 this Court deemed as a waiver of the right of confrontation, the admission by the accused that witnesses if present would testify to certain facts stated in the affidavit of the prosecution. 31 In the same vein, it may be said that such an admission is a waiver of the right of an accused to present evidence on his behalf. Although the right to present evidence is guaranteed by no less than the Constitution itself for the protection of the accused, this right may be waived expressly or impliedly. 32 This is in consonance with the doctrine of waiver which recognizes that." . . everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large." 33 The abovementioned doctrine is squarely applicable to the case at bar. Appellant was never prevented from presenting evidence contrary to the stipulation of facts. If appellant believed that the testimony of the Chief Licensing Officer of the POEA would be beneficial to her case, then it is the defense who should have presented him. Her continuous failure to do so during trial was waiver of her right to present the pertinent evidence to contradict the stipulation of facts and establish her defense. In view of the foregoing, the stipulation of facts proposed during trial by prosecution and admitted by defense counsel is tantamount to a judicial admission by the appellant of the facts stipulated on. Controlling, therefore, is Section 4, Rule 129 of the Rules of Court which provides that:jgc:chanrobles.com.ph "An admission, verbal or written, made by a party in the course of the proceedings in the same case, does not require proof. The admission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made."cralaw virtua1aw library We now go to appellants second and third assignment of errors. In her second assignment of error, appellant makes much ado of the "judicial notice" taken by the lower court of the fact that appellant had been charged with another illegal recruitment case, 34 and in considering the pendency thereof as evidence of the scheme and strategy adopted by the accused. Appellant cites a violation of Section 3 of Rule 129 of the Rules of Court which provides that before the court may take judicial notice of any matter, the parties shall be heard thereon if such matter is decisive of a material issue in the case. It is claimed that the lower court never announced its intention to take judicial notice of the pendency of the other illegal recruitment case nor did it allow the accused to be heard thereon. It is true that as a general rule, courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have been tried or are pending in the same court, and notwithstanding the fact that both cases may have been

tried or are actually pending before the same judge. 35 However, this rule is subject to the exception that:jgc:chanrobles.com.ph ". . . in the absence of objection and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of the case filed in its archives as read into the records of a case pending before it, when with the knowledge of the opposing party, reference is made to it, by name and number or in some other manner by which it is sufficiently designated, . . ." 36 (Emphasis supplied.) The judicial notice taken by the lower court pendency of another illegal recruitment case against the appellant falls squarely under the above exception in view of the fact that it was the appellant herself who introduced evidence on the matter when she testified in open court as follows:jgc:chanrobles.com.ph "Q: You mean to say . . . by the way, where (sic) were you at the NBI when Mrs. Cinco inquired from you about placement abroad? A: Q: A: Q: A: Q: A: Yes, sir. x x x You They I was just Why told invited the were me that personnel of you there the NBI and invited was a about same mean illegal recruitment I was not by complaint allowed the against to go home. NBI? me. what? case. also?

Complaint The

Q: You made mention than an illegal recruitment case which was supposed to be the cause of your detention at the NBI. . . . I am not referring to this case, Mrs. Hernandez what happened to that case, what is the status of the case? A: COURT: It It is is already also submitted in for this decision. sala. 37

Even assuming, however, that the lower court improperly took judicial notice of the pendency of another illegal recruitment case against the appellant, the error would not be fatal to be prosecutions case. The judgment of conviction was not based on the existence of another illegal recruitment case filed against appellant by a different group of complainants, but on the overwhelming evidence against her in the instant case. Anent the last assignment of error, suffice it to say that we do not find any compelling reason to reverse the findings of the lower court that appellants bare denials cannot overthrow the positive testimonies of the prosecution witnesses against her. Well established is the rule that denials if unsubstantiated by clear and convincing evidence are negative, self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight over the testimony of credible witnesses who testify on affirmative matters. 38 That she did not merely deny, but likewise raised as an affirmative defense her appointment as mere nominee-president of Philippine-Thai is a futile attempt at exculpating herself and is of no consequence whatsoever when weighed against the positive declarations of witnesses that it was the appellant who executed the acts of illegal recruitment as complained of. Finally, under Article 39 of the New Labor Code, the penalty for illegal recruitment committed in large scale is life imprisonment and a fine of ONE HUNDRED THOUSAND PESOS (P100,000.00). As previously held by this Court, life imprisonment is not synonymous with reclusion perpetua. 39 The lower court erred in imposing "the penalty of life imprisonment ( reclusion perpetua) with the accessory penalties provided for by law; . . ." 40 ( Emphasis supplied) WHEREFORE, appellants conviction of the crime of illegal recruitment in large scale is hereby AFFIRMED, and the penalty imposed

MODIFIED as follows: the court sentences the accused to suffer the penalty of life imprisonment and to pay a fine of ONE HUNDRED THOUSAND (P100,000.00) PESOS without subsidiary imprisonment in case of insolvency; to return and pay to BENITO L. BERNABE the amount of TWENTY EIGHT THOUSAND FIVE HUNDRED (P28,500.00) PESOS; to ROBERT P. VELASQUEZ the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to GREGORIO P. MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS; to ARNEL MENDOZA the amount of TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00) PESOS also without subsidiary imprisonment in case of insolvency; and to pay the costs. SO ORDERED.

[G.R.

No.

79269.

June

5,

1991.]

PEOPLE OF THE PHILIPPINES, Petitioner, v. HON. PROCORO J. DONATO, in his official capacity as Presiding Judge, Regional Trial Court, Branch XII, Manila; RODOLFO C. SALAS, alias Commander Bilog, Respondents. The Solicitor General for Petitioner.

Jose Suarez, Romeo Capulong, Efren Mercado and Movement of Attorneys for Brotherhood, Integrity, Nationalism, Inc. (MABINI) for Rodolfo Salas.

SYLLABUS

1. CONSTITUTIONAL LAW; RIGHT OF ACCUSED TO BAIL; GOVERNED BY THE LAW AT THE TIME THE COURT RESOLVED THE PETITION FOR BAIL. At the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. 2. ID.; ID.; ABSOLUTE WHEN THE OFFENSE CHARGED IS PUNISHABLE BY ANY PENALTY LOWER THAN RECLUSION PERPETUA. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution and provides thus: Section 3, Rule 114 of the Rules of Court, as amended. Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. To that extent the right is absolute. 3. ID.; ID.; ID.; CANNOT BE DENIED EVEN IF THE SECURITY OF THE STATE SO REQUIRES; PEOPLE VS. HERNANDEZ, ET AL. (99 PHIL. 515) CITED. And so, in a similar case for rebellion, People v. Hernandez, Et Al., 99 Phil 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held: . . . Furthermore, in-dividual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom."cralaw virtua1aw library 4. ID.; ID.; ID.; SHALL NOT BE IMPAIRED EVEN WHEN THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS IS SUSPENDED. The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Courts ruling in Garcia -Padilla v. Enrile, Et Al., supra., to wit: "The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the governments campaign to suppress the rebellion is to be enhanced and rendered effective. If the right to bail may be demande d during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection."cralaw virtua1aw library 5. ID.; ID.; SUBJECT TO THE SOUND DISCRETION OF THE COURT IF THE OFFENSE CHARGED IS PUNISHABLE BY RECLUSION PERPETUA. If the offense charged is punishable by reclusion perpetuabail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The courts discretion is limited to determining whether or not evidence of guilt is strong. (Teehankee v. Director of Prisons [76 Phil. 756, 770] But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In the same case, We held: "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that: The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such

provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" 6. ID.; ID.; RIGHT OF PROSECUTION TO PRESENT EVIDENCE TO DENY THEREOF; WHEN AVAILABLE. The prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 7. ID.; ID.; GUIDELINES IN FIXING BAILBOND. We agree with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People v. Dacudao, Et Al., 170 SCRA, 489, 495: "Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case. . . ."cralaw virtua1aw library 8. ID.; ID.; SUBJECT TO THE LIMITATION THAT PERSON APPLYING FOR ADMISSION TO BAIL SHOULD BE IN THE CUSTODY OF THE LAW; APPLICABLE IN CASE AT BAR. He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." When the parties in G. R. No. 76009 stipulated that: "b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person." they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his co-accused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his co-accused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement. 9. ID.; ID.; MAY BE WAIVED BY THE ACCUSED. It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; the right to counsel and to remain silent; and the right to be heard. Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states : ". . . These rights cannot be waived except in writing and in the presence of counsel." This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the Constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law. 10. CRIMINAL LAW; REBELLION; IMPOSABLE PENALTY AS AMENDED BY R. A. NO. 6968. It must be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads: "Article 135. Penalty for rebellion, insurrection or coup detat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua."cralaw virtua1aw library 11. ID.; ID.; ID.; NOT APPLICABLE IN CASE AT BAR. Republic Act No. 6968 cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same."cralaw virtua1aw library

12. REMEDIAL LAW; CRIMINAL PROCEDURE; BAIL; DEFINED AND PURPOSE. In defining bail as: ". . . the security given for the release of a person in custody of the law, . . ." Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 13. CIVIL LAW; WAIVER OF RIGHT; CONSTRUED. Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it."cralaw virtua1aw library 14. ID.; ID.; RULE. As to what rights and privileges may be waived, the authority is settled: ". . . the doctrine of waiver extends to rights and privileges of any character, and, since the word waiver covers every conceivable right, it is the general rule t hat a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived. While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver."

DECISION

DAVIDE, JR., J.:

The People of the Philippines, through the Chief State Prosecutor of the Department of Justice, the City Fiscal of Manila and the Judge a Advocate General, filed the instant petition for certiorari and prohibition, with a prayer for restraining order/ preliminary injunction, to set aside the order of respondent Judge dated July 7, 1987 granting bail to the accused Rodolfo Salas alias "Commander Bilog" in Criminal Case No. 86-48926 for Rebellion, 1 and the subsequent Order dated July 30, 1987 granting the motion for reconsideration of 16 July 1987 by in creasing the bail bond from P30,000.00 to P50,000.00 but denying petitioners supplemental motion for reconsideration of July 17, 1987 which asked the court to allow petitioner to present evidence in support of its prayer for a reconsideration of the order of 7 July 1987. The pivotal issues presented before Us are whether the right to bail may, under certain circumstances, be denied to a person who is charged with an otherwise bailable offense, and whether such right may be waived. The following are the antecedents of this petition:chanrob1es virtual 1aw library

In the original Information 2 filed on 2 October 1986 in Criminal Case No. 86-48926 of the Regional Trial Court of Manila, later amended in an Amended Information 3 which was filed on 24 October 1986, private respondent Rodolfo Salas, alias "Commander Bilog", and his co-accused were charged for the crime of rebellion under Article 134, in relation to Article 135, of the Revised Penal Code allegedly committed as follows:jgc:chanrobles.com.ph "That in or about 1968 and for some time before said year and continuously thereafter until the present time, in the City of Manila and elsewhere in the Philippines, the Communist Party of the Philippines, its military arm, the New Peoples Army, its mass infiltration network, the National Democratic Front with its other subordinate organizations and fronts, have, under the direction and control of said organizations leaders, among whom are the aforenamed accused, and with the aid, participation or support of members and followers whose whereabouts and identities are still unknown, risen publicly and taken arms throughout the country against the Government of the Republic of the Philippines for the purpose of overthrowing the present Government, the

seat of which is in the City of Manila, or of removing from the allegiance to that government and its laws, the countrys territory or part of it; That from 1970 to the present, the above-named accused in their capacities as leaders of the aforenamed organizations, in conspiracy with, and in support of the cause of, the organizations aforementioned, engaged themselves in war against the forces of the government, destroying property or committing serious violence, and other acts in the pursuit of their unlawful purpose, such as . . . ."cralaw virtua1aw library (then follows the enumeration of specific acts committed before and after February 1986).

At the time the Information was filed the private respondent and his co-accused were in military custody following their arrest on 29 September 1986 at the Philippine General Hospital, Taft Ave., Manila; he had earlier escaped from military detention and a cash reward of P250,000.00 was offered for his capture. 4 A day after the filing of the original information, or on 3 October 1986, a petition for habeas corpusfor private respondent and his co-accused was filed with this Court 5 which, as shall hereafter be discussed in detail, was dismissed in Our resolution of 16 October 1986 on the basis of the agreement of the parties under which herein private respondent "will remain in legal custody and will face trial before the court having custody over his person" and the warrants for the arrest of his co-accused are deemed recalled and they shall be immediately released but shall submit themselves to the court having jurisdiction over their person. On November 7, 1986, private respondent filed with the court below a Motion to Quash the Information alleging that: (a) the facts alleged do not constitute an offense; (b) the Court has no jurisdiction over the offense charged; (c) the Court has no jurisdiction over the persons of the defendants; and (d) the criminal action or liability has been extinguished, 6 to which petitioner filed an Opposition 7 citing, among other grounds, the fact that in the Joint Manifestation and Motion dated October 14, 1986, in G.R. No. 76009, private respondent categorically conceded that:chanrob1es virtual 1aw library x x x

"Par. 2 (b) Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person."cralaw virtua1aw library In his Order of March 6, 1987, 8 respondent Judge denied the motion to quash.

Instead of asking for a reconsideration of said Order, private respondent filed on 9 May 1987 a petition for bail, 9 which herein petitioner opposed in an Opposition filed on 27 May 1987 10 on the ground that since rebellion became a capital offense under the provisions of P.D. Nos. 1996, 942 and 1834, which amended Article 135 of the Revised Penal Code, by imposing the penalty of reclusion perpetua to death on those who promote, maintain, or head a rebellion, the accused is no longer entitled to bail as evidence of his guilt is strong. On 5 June 1987 the President issued Executive Order No. 187 repealing, among others, P.D. Nos. 1996, 942 and 1834 and restoring to full force and effect Article 135 of the Revised Penal Code as it existed before the amendatory decrees. Thus, the original penalty for rebellion, prision mayor and a fine not to exceed P20,000.00, was restored. Executive Order No. 187 was published in the Official Gazette in its June 15, 1987 issue (Vol. 83, No. 24) which was officially released for circulation on June 26, 1987. In his Order of 7 July 1987 11 respondent Judge, ta king into consideration Executive Order No. 187, granted private respondents petition for bail, fixed the bail bond at P30,000.00 and imposed upon private respondent the additional condition that he shall report to the court once every two (2) months within the first ten (10) days of every period thereof. In granting the petition respondent Judge stated:jgc:chanrobles.com.ph ". . . There is no more debate that with the effectivity of Executive Order No. 187, the offense of rebellion, for which accused Rodolfo Salas is herein charged, is now punishable with the penalty of prision mayor and a fine not exceeding P20,000.00, which makes it now bailable pursuant to Section 13, Article III, 1986 Constitution and Section 3, Rule 114, 1985 Rules of Criminal Procedure. Unlike the old rule, bail is now a matter of right in non-capital offenses before final judgment. This is very evident upon a reading of Section 3, Rule 114, aforementioned, in relation to Section 21, same rule. In view, therefore, of the present circumstances in this case, said accused-applicant is now entitled to bail as a matter of right inasmuch as the crime of rebellion ceased to be a capital offense."cralaw virtua1aw library

As to the contention of herein petitioner that it would be dangerous to grant bail to private respondent considering his stature in the CPP-NPA hierarchy, whose ultimate and overriding goal is to wipe out all vestiges of our democracy and to replace it with their ideology, and that his release would allow his return to his organization to direct its armed struggle to topple the government before whose courts he invokes his constitutional right to bail, respondent Judge replied:jgc:chanrobles.com.ph "True, there now appears a clash between the accuseds constitutional right to bail in a non-capital offense, which right is guaranteed in the Bill of Rights and, to quote again the prosecution, the existence of the government that bestows the right , the paramount interest of the state. Suffice to state that the Bill of Rights, one of which is the right to bail, is a declaration of the rights of the individual, civil, political and social and economic, guaranteed by the Constitution against impairment or intrusion by any form of governmental action. Emphasis is placed on the dignity of man and the worth of individual. There is recognition of certain inherent and inalienable rights of the individual, which the government is prohibited from violating (Quisumbing Fernando, Philippine Constitutional Law, 1984 Edition, p. 77). To this Court, in case of such conflict as now pictured by the prosecution, the same should be resolved in favor of the individual who, in the eyes of the law, is alone in the assertion of his rights under the Bill of Rights as against the State. Anyway, the government is that powerful and strong, having the resources, manpower and the wherewithals to fight those who oppose, threaten (sic) and destroy a just and orderly society and its exist ing civil and political institutions. The prosecutions fear may or may n ot be founded that the accused may later on jump bail and rejoin his comrades in the field to sow further disorders and anarchy against the duly constituted authorities. But, then, such a fear can not be a reason to deny him bail. For the law is very explicit that when it comes to bailable offenses an accused is entitled as a matter of right to bail. Dura est lex sed lex."cralaw virtua1aw library In a motion to reconsider 12 the above order filed on 16 July 1987, petitioner asked the court to increase the bail from P30,000.00 to P100,000.00 alleging therein that per Department of Justice Circular No. 10 dated 3 July 1987, the bail for the provisional release of an accused should be in an amount computed at P10,000.00 per year of imprisonment based on the medium penalty imposable for the offense and explaining that it is recommending P100,000.00 because the private respondent "had in the past escaped from the custody of the military authorities and the offense for which he is charged is not an ordinary crime, like murder, homicide or robbery, where after the commission, the perpetrator has achieved his end" and that "the rebellious acts are not consummated until the well-organized plan to overthrow the government through armed struggle and replace it with an alien system based on a foreign ideology is attained."cralaw virtua1aw library On 17 July 1987, petitioner filed a supplemental motion for reconsideration 13 indirectly asking the court to deny bail to the private respondent and to allow it to present evidence in support thereof considering the "inevitable probability that the accused will not comply with this main condition of his bail to appear in court for trial," a conclusion it claims to be buttressed "by the following facts which are widely known by the People of the Philippines and which this Honorable Court may have judicial notice of:chanrob1es virtual 1aw library 1. The accused has evaded the authorities for thirteen years and was an escapee from detention when arrested; 2. He was not arrested at his residence as he had no known address;

3. He was using the false name "Manuel Mercado Castro" at the time of his arrest and presented a Drivers License to substant iate his false identity; 4. The address he gave "Panamitan, Kawit, Cavite," turned out to be also a false address;

5. He and his companions were on board a private vehicle with a declared owner whose identity and address were also found to be false; 6. Pursuant to Ministry Order No. 1-A dated 11 January 1982,a reward of P250,000.00 was offered and paid for his arrest," which "clearly indicate that the accused does not entertain the slightest intention to appear in court for trial, if released." Petitioner further argues that the accused, who is the Chairman of the Communist Party of the Philippines and head of its military arm, the NPA, together with his followers, are now engaged in an open warfare and rebellion against this government and threatens the existence of this very Court from which he now seeks provisional release," and that while he is entitled to bail as a matter of right in view of Executive Order No. 187 which restored the original penalty for rebellion under Article 135 of the Revised Penal Code, yet, when the interest of the State conflicts with that of an individual, that of the former prevails for "the right of the State of self-preservation is paramount to any of the rights of an individual enshrined in the Bill of Rights of the Constitution." Petitioner further invokes precedents in the United States of America holding "that there is no absolute constitutional barrier to detention of potentially dangerous resident aliens pending deportation proceedings, 14 and that an

arrestee may be incarcerated until trial as he presents a risk of flight; 15 and sustaining a detention prior to trial of arrestee charged with serious felonies who are found after an adversary hearing to pose threat to the safety of individuals and to the community which no condition of release can dispel." 16 On 30 July 1987 respondent Judge handed down the Orders 17 adverted to in the introductory portion of this decision the dispositive portion of which reads:jgc:chanrobles.com.ph "WHEREFORE, in the light of the foregoing considerations, the Court finds the supplemental motion for reconsideration to be without merit and hereby denies it but finds the first motion for reconsideration to be meritorious only insofar as the amount of bail is concerned and hereby reconsiders its Order of July 7, 1987 only to increase the amount of bail from P30,000.00 to P50,000.00, subject to the approval of this Court, and with the additional condition that accused Rodolfo Salas shall report to the court once every two (2) months within the first ten (10) days of every period thereof (Almendras v. Villaluz, Et Al., L-31665, August 6, 1975, 66 SCRA 58)."cralaw virtua1aw library In denying the supplemental motion for reconsideration the respondent Judge took into account the "sudden turn-about" on the part of the petitioner in that a day earlier it filed a motion for reconsideration wherein it conceded the right of the private respondent to bail but merely asked to increase the amount of bail; observed that it is only a reiteration of arguments in it s opposition to the petition for bail of 25 May 1987; asserted that the American precedents are not applicable since the cases involved deportation of aliens and, moreover, the U.S. Federal Constitution does not contain a proviso on the right of an accused to bail in bailable offenses, but only an injunction against excessive bail; and quoted the concurring opinion of the late Justice Pedro Tuason in the cases of Nava, Et. Al. v. Gatmaitan, L-4853, Hernandez v. Montesa, L-4964 and Angeles v. Abaya, L-5108, October 11, 1951, 90 Phil. 172. Unable to agree with said issues:jgc:chanrobles.com.ph Order, petitioner commenced this petition submitting therein the following

"THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION, AND IN TOTAL DISREGARD OF THE PREVAILING RE ALITIES, WHEN HE DENIED PETITIONERS SUPPLEMENTAL MOTION FOR RECONSIDERATION WITH PRAYER TO BE GIVEN THE OPPORTUNITY TO ADDUCE EVIDENCE IN SUPPORT OF ITS OPPOSITION TO THE GRANT OF BAIL TO THE RESPONDENT RODOLFO SALAS. THE HONORABLE RESPONDENT JUDGE PROCORO J. DONATO ACTED WITH GRAVE ABUSE OF DISCRETION AND IN EXCESS OF HIS JURISDICTION WHEN HE GRANTED BAIL TO THE RESPONDENT RODOLFO SALAS."cralaw virtua1aw library in support of which petitioner argues that private respondent is stopped from invoking his right to bail, having expressly waived it in G.R. No. 76009 when he agreed to "remain in legal custody and face trial before the court having custody of his person" in consideration of the recall of the warrant of arrest for his co-petitioners Josefina Cruz and Jose Concepcion; and the right to bail, even in non-capital offenses, is not absolute when there is prima facie evidence that the accused is a serious threat to the very existence of the State, in which case the prosecution must be allowed to present evidence for the denial of bail. Consequently, respondent Judge acted with grave abuse of discretion when he did not allow petitioner to present all the evidence it may desire to support its prayer for the denial of bail and when he declared that the State has forfeited its right to do so since during all the time that the petition for bail was pending, it never manifested, much less hinted, its intention to adduce such evidence. And that even if release on bail may be allowed, respondent judge, in fixing the amount of bail at P50,000.00 (originally P30,000.00 only), failed to take into account the lengthy record of private respondents criminal background, the gravity of the pending charge , and the likelihood of flight. 18 In Our resolution of 11 August 1987 19 We required the respondents to comment on the petition and issued a Temporary Restraining Order ordering respondent Judge to cease and desist from implementing his order of 30 July 1987 granting bail to private respondent in the amount of P50,000.00. In his Comment filed on 27 August 1987, 20 private respondent asks for the outright dismissal of the petition and immediate lifting of the temporary restraining order on the following grounds:chanrob1es virtual 1aw library I

RESPONDENT SALAS NEVER WAIVED HIS RIGHT TO BAIL; NEITHER IS HE ESTOPPED FROM ASSERTING SAID RIGHT. ON THE CONTRARY IT IS PETITIONER WHO IS ESTOPPED FROM RAISING THE SAID ISSUE FOR THE FIRST TIME ON APPEAL.

II

RESPONDENT SALAS ENJOYS NOT ONLY THE CONSTITUTIONAL RIGHT TO BE PRESUMED INNOCENT BUT ALSO THE RIGHT TO BAIL. III

RESPONDENT SALAS IS NOT CHARGED WITH A CAPITAL OFFENSE (RECLUSION PERPETUA), HENCE HE HAS THE RIGHT TO BAIL AS MANDATED BY THE CONSTITUTION. IV

THE ORDER OF JULY 30, 1987 DENYING PETITIONER OPPORTUNITY TO PRES ENT EVIDENCE IS CORRECT. PETITIONERS ALLEGED RIGHT TO PRESENT EVIDENCE IS NONEXISTENT AND/OR HAD BEEN WAIVED. V

THE ISSUANCE OF A TEMPORARY RESTRAINING ORDER IN THIS CASE VIOLATES NOT ONLY RESPONDENT SALAS RIGHT TO BAIL BUT ALSO HIS OTHER CONSTITUTIONAL RIGHT TO DUE PROCESS. We required the petitioner to reply to the comment of private Respondent. 21 The reply was filed on 18 September 1987. 22 In Our resolution of 15 October 1987 23 We gave due course to the petition and required the parties to file simultaneously their memoranda within twenty days from notice. In their respective manifestations and motions dated 5 November 24 and 23 November 1987 25 petitioner and private respondents asked to be excused from filing their Memoranda and that the petition and reply be considered as the Memorandum for petitioner and the Comment as the Memorandum for private respondent, which We granted in Our resolutions of 19 November 1987 26 and 1 December 1987, 27 respectively. In Our resolution of 14 September 1989 We required the Solicitor General to express his stand on the issues raised in this petition, 28 which he complied with by filing his Manifestation on 30 May 1990 29 wherein he manifests that he supports the petition and submits that the Order of respondent Judge of July 7, July 17 and July 30, 1987 should be annulled and set aside asserting that private respondent had waived the right to bail in view of the agreement in G.R. No. 76009; that granting bail to him is accepting wide-eyed his undertaking which he is sure to break; in determining bail, the primary consideration is to insure the attendance of the accused at the trial of the case against him, which would be frustrated by the "almost certainty that respondent Salas will jump bail of whatever amount" ; and application of the guidelines provided for in Section 10 of Rule 114, 1985 Rules on Criminal Procedure on the amount of bail dictates denial of bail to private Respondent. The Solicitor General likewise maintains that the right of the petitioner to hearing on the application of private respondent for bail cannot be denied by respondent Judge. And now on the issues presented in this case. I.

Unquestionably, at the time the original and the amended Informations for rebellion and the application for bail were filed before the court below the penalty imposable for the offense for which the private respondent was charged was reclusion perpetua to death. During the pendency of the application for bail Executive Order No. 187 was issued by the President, by virtue of which the penalty for rebellion as originally provided for in Article 135 of the Revised Penal Code was restored. The restored law was the governing law at the time the respondent court resolved the petition for bail. We agree with the respondent court that bail cannot be denied to the private respondent for he is charged with the crime of rebellion as defined in Article 134 of the Revised Penal Code to which is attached the penalty of prision mayor and a fine not exceeding P20,000.00. 30 It is, therefore, a bailable offense under Section 13 of Article III of the 1987 Constitution which provides thus:jgc:chanrobles.com.ph

"Sec. 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be prescribed by law. The right to bail shall not be impaired even when the privilege of the writ of habeas corpus is suspended. Excessive bail shall not be required."cralaw virtua1aw library Section 3, Rule 114 of the Rules of Court, as amended, also provides:jgc:chanrobles.com.ph

"Bail, a matter of right: exception. All persons in custody shall, before final conviction, be entitled to bail as a matter of right, except those charged with a capital offense or an offense which, under the law at the time of its commission and at the time of the application for bail, is punishable by reclusion perpetua, when evidence of guilt is strong."cralaw virtua1aw library Therefore, before conviction bail is either a matter of right or of discretion. It is a matter of right when the offense charged is punishable by any penalty lower than reclusion perpetua. 31 To that extent the right is absolute. 32 And so, in a similar case for rebellion, People v. Hernandez, Et Al., 99 Phil. 515, despite the fact that the accused was already convicted, although erroneously, by the trial court for the complex crime of rebellion with multiple murders, arsons and robberies, and sentenced to life imprisonment, We granted bail in the amount of P30,000.00 during the pendency of his appeal from such conviction. To the vigorous stand of the People that We must deny bail to the accused because the security of the State so requires, and because the judgment of conviction appealed from indicates that the evidence of guilt of Hernandez is strong, We held:jgc:chanrobles.com.ph ". . . Furthermore, individual freedom is too basic, too transcendental and vital in a republican state, like ours, to be derived upon mere general principles and abstract consideration of public safety. Indeed, the preservation of liberty is such a major preoccupation of our political system that, not satisfied with guaranteeing its enjoyment in the very first paragraph of section (1) of the Bill of Rights, the framers of our Constitution devoted paragraphs (3), (4), (5), (6), (7), (8), (11), (12), (13), (14), (15), (16), (17), (18), and (21) of said section (1) to the protection of several aspects of freedom."cralaw virtua1aw library The 1987 Constitution strengthens further the right to bail by explicitly providing that it shall not be impaired even when the privilege of the writ of habeas corpus is suspended. This overturns the Courts ruling in Garcia-Padilla v. Enrile, Et Al., supra., to wit:cralawnad "The suspension of the privilege of the writ of habeas corpus must, indeed, carry with it the suspension of the right to bail, if the governments campaign to suppress the rebellion is to be enhanced and ren dered effective. If the right to bail may be demanded during the continuance of the rebellion, and those arrested, captured and detained in the course thereof will be released, they would, without the least doubt, rejoin their comrades in the field thereby jeopardizing the success of government efforts to bring to an end the invasion, rebellion or insurrection."cralaw virtua1aw library Upon the other hand, if the offense charged is punishable by reclusion perpetua bail becomes a matter of discretion. It shall be denied if the evidence of guilt is strong. The courts discretion is limited to determining whether or not evidence of guilt is strong. 33 But once it is determined that the evidence of guilt is not strong, bail also becomes a matter of right. In Teehankee v. Director of Prisons, supra., We held:jgc:chanrobles.com.ph "The provision on bail in our Constitution is patterned after similar provisions contained in the Constitution of the United States and that of many states of the Union. And it is said that:chanrob1es virtual 1aw library The Constitution of the United States and the constitution of the many states provide that all persons shall be bailable by sufficient sureties, except for capital offenses, where the proof is evident or the presumption of guilt is great, and, under such provisions, bail is a matter of right which no court or judge can properly refuse, in all cases not embraced in the exceptions. Under such provisions bail is a matter of right even in cases of capital offenses, unless the proof of guilt is evident or the presumption thereof is great!" 34 Accordingly, the prosecution does not have the right to present evidence for the denial of bail in the instances where bail is a matter of right. However, in the cases where the grant of bail is discretionary, due process requires that the prosecution must be given an opportunity to present, within a reasonable time, all the evidence that it may desire to introduce before the court should resolve the motion for bail. 35 We agree, however, with petitioner that it was error for the respondent court to fix the bond at P30,000.00, then later at P50,000.00 without hearing the prosecution. The guidelines for the fixing of the amount of bail provided for in Section 10 of Rule 114 of the Rules of Court are not matters left entirely to the discretion of the court. As We stated in People v. Dacudao, Et Al., 170

SCRA,

489,

495:jgc:chanrobles.com.ph

"Certain guidelines in the fixing of a bailbond call for the presentation of evidence and reasonable opportunity for the prosecution to refute it. Among them are the nature and circumstances of the crime, character and reputation of the accused, the weight of the evidence against him, the probability of the accused appearing at the trial, whether or not the accused is a fugitive from justice, and whether or not the accused is under bond in other case . . . ."cralaw virtua1aw library In the instant case petitioner has sufficiently made out allegations which necessitate a grant of an opportunity to be heard for the purpose of determining the amount of bail, but not for the denial thereof because aforesaid Section 10 of Rule 114 does not authorize any court to deny bail. II.

It must, however, be stressed that under the present state of the law, rebellion is no longer punishable by prision mayor and fine not exceeding P20,000.00. Republic Act No. 6968 approved on 24 October 1990 and which took effect after publication in at least two newspapers of general circulation, amended, among others, Article 135 of the Revised Penal Code by increasing the penalty for rebellion such that, as amended, it now reads:jgc:chanrobles.com.ph "Article 135. Penalty for rebellion, insurrection or coup detat. Any person who promotes, maintains, or heads a rebellion or insurrection shall suffer the penalty of reclusion perpetua. "Any person merely participating or executing the commands of others in a rebellion or insurrection shall suffer the penalty of reclusion perpetua."cralaw virtua1aw library x x x

This amendatory law cannot apply to the private respondent for acts allegedly committed prior to its effectivity. It is not favorable to him. "Penal laws shall have a retroactive effect insofar as they favor the person guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws a final sentence has been pronounced and the convict is serving the same." 36 III.

We agree with Petitioner that private respondent has, however, waived his right to bail in G.R. No. 76009.chanrobles law library : red On 3 October 1986, or the day following the filing of the original information in Criminal Case No. 86-48926 with the trial court, a petition for habeas corpus for herein private respondent, and his co-accused Josefina Cruz and Jose Concepcion, was filed with this Court by Lucia Cruz, Aida Concepcion Paniza and Beatriz Salas against Juan Ponce Enrile, Gen. Fidel Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao, and Col. Saldajeno praying, among others, that the petition be given due course and a writ of habeas corpus be issued requiring respondents to produce the bodies of herein private respondent and his co-accused before the Court and explain by what authority they arrested and detained them. The following proceedings took place thereafter in said case:chanrob1es virtual 1aw library 1. In a resolution of 7 October 1986 We issued a writ of habeas corpus, required respondents to make a return of the writ on or before the close of office hours on 13 October and set the petition for hearing on 14 October 1986 at 10:00 oclock in the mo rning. 2. On 13 October 1986 respondents, through the Office of the Solicitor General, filed a Return To The Writ of Habeas Corpus alleging therein that private respondent and Josefina Cruz alias "Mrs. Mercado", and Jose Milo Concepcion alias "Eugene Zamora" were apprehended by the military on September 29, 1986 in the evening at the Philippine General Hospital Compound at Taft Ave., Manila, being leaders or members of the Communist Party of the Philippines, New Peoples Army and National Democratic Front, organizations dedicated to the overthrow of the Government through violent means, and having actually committed acts of rebellion under Article 134 of the Revised Penal Code, as amended. After their arrest they were forthwith charged with rebellion before Branch XII of the Regional Trial Court, National Capital Region in Criminal Case No. 86-48926 and on 3 October warrants for their arrest were issued and respondents continue to detain them because of the warrants of arrest and the pendency of the criminal cases against them. Respondents further allege that, contrary to the allegation in the petition, herein private respondent

was not a member of the NDF panel involved in peace negotiations with the Government; neither is he and his companions Cruz and Concepcion covered by any safe conduct pass issued by competent authorities. 3. At the hearing on 14 October 1986 the parties informed the Court of certain agreements reached between them. We issued a resolution reading as follows:jgc:chanrobles.com.ph "When this case was called for hearing this morning, Attorneys Romeo Capulong, Arno V. Pamin-tuan, Casiano Sabile, Ramon Cura, and William Chua appeared for the petitioners petitioners. Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de Villanueva appeared for the respondents, with Solicitor General Ordoez Sanidad, Efren H. Mercado, Edgardo with Atty. Capulong arguing for the la Cruz and Trial Attorney Josue E. arguing for the respondents.

Petitioners counsel, Atty. Romeo Capulong, manifested in open Court that in conformity with the agreement reached with the government, the petition for habeas corpus will be withdrawn with detainee Rodolfo Salas to remain under custody, whereas his co-detainees Josefina Cruz and Jose Milo Concepcion will be released immediately. Solicitor General Sedfrey Ordoez, also in open Court, confirmed the foregoing statement made by pet itioners counsel regarding the withdrawal of the petition for habeas corpus, declaring that no objection will be interposed to the immediate release of detainees Josefina Cruz and Jose Milo Concepcion, and that no bond will be required of them, but they will continue to face trial with their co-accused, Rodolfo Salas; further, that they will not be rearrested on the basis of the warrants issued by the trial court provided that they manifest in open Court their willingness to subject themselves to the jurisdiction of the Court and to appear in court when their presence is required. In addition, he stated that he is willing to confer with petitioners counsel today relative to the compromise agreement that they have previously undertaken to submit.chanrobles.com : virtual law library Upon manifestation of petitioners counsel, Atty. Romeo Capulong, that on his oath as member of the Bar, the detainees Josefi na Cruz and Jose Milo Concepcion have agreed to subject themselves to the jurisdiction of the trial court, the Court ordered their immediate release. Thereafter, the Court approved the foregoing manifestations and statements and required both parties to SUBMIT to the Court their compromise agreement by 4:00 oclock this afternoon. Teehankee, C.J., is on official leave."cralaw virtua1aw library 4. At 3:49 oclock in the afternoon of 14 October 1986 the parties submitted a Joint Manifestation and Motion duly signed by Atty. Romeo Capulong, counsel for petitioners, and Solicitor General Sedfrey Ordoez, Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva, counsel for respondents, which reads as follows:jgc:chanrobles.com.ph "COME NOW petitioners and the respondents, assisted by their respective counsel, and to this Honorable Tribunal respectfully manifest:chanrob1es virtual 1aw library 1. That in the discussion between Romeo Capulong, petitioners counsel, and Solicitor General Sedfrey A. Ordoez on October 1 3, 1986 exploratory talks were conducted to find out how the majesty of the law may be preserved and human considerations may be called into play. 2. That in the conference both counsel agreed to the following terms of agreement:chanrob1es virtual 1aw library a. The petition for habeas corpus will be withdrawn by petitioners and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion (People v. Rodolfo Salas, Et Al., Criminal Case No. 4886 [should be 86-48926], Regional Trial Court, National Capital Judicial Region) filed against them under their personal recognizance. b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person. c. The warrant of arrest for the persons of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of formal manifestation before the Supreme Court that they will submit themselves to the court having jurisdiction over their person. 3. That on October 14, the Solicitor General was able to obtain the conformity of the Government to the foregoing terms which were likewise accepted by petitioner (sic) and their counsel of record. 4. That the two counsel submitted their oral manifestation during the hearing on October 14 and the present manifestation in compliance with the resolution announced in court this morning.

WHEREFORE, 5. On

it 16

is

prayed October

that

the

petition We

for habeas issued the

corpus be

dismissed."cralaw

virtua1aw

library

1986

following

resolution:jgc:chanrobles.com.ph

"G.R. No. 76009 [In the Matter of the Petition for Habeas Corpus of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, Et. Al. v. Hon. Juan Ponce Enrile, Gen. Fidel V. Ramos, Brig. Gen. Renato de Villa, Brig. Gen. Ramon Montao and Col. Virgilio Saldajeno] Considering the Joint Manifestation and Motion dated October 14, 1986 filed by Attorneys Romeo Capulong, Arno V. Sanidad, Efren H. Mercado and Ricardo Fernandez, Jr. as counsel for petitioners and Solicitor General Sedfrey A. Ordoez and Assistant Solicitor General Romeo C. de la Cruz and Trial Attorney Josue S. Villanueva as counsel for respondents which states that they have entered into an agreement whereby: [a] the petition for habeas corpus will be withdrawn by petitioners, and Josefina Cruz and Jose Milo Concepcion will be immediately released but shall appear at the trial of the criminal case for rebellion [People v. Rodolfo Salas, Et Al., Criminal Case No. 4886, Regional Trial Court, National Capital Judicial Region, Branch XII, Manila], filed against them, on their personal recognizance; [b] petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person; and [c] the warrant of arrest for the person of Josefina Cruz and Jose Milo Concepcion is hereby deemed recalled in view of the formal manifestation before this Court that they will submit themselves to the court having jurisdiction over their person and in view of the said agreement, the petition for habeas corpus be dismissed, the Court Resolved to DISMISS the petition for habeas corpus but subject to the condition that petitioners lead counsel, Atty. Capulong, upon his oath as member of the Bar, shall abide by his commitment to ensure the appearance of Josefina Cruz and Jose Milo Concepcion at the trial of the criminal case for rebellion filed against them. Teehankee, C.J., is on official leave."cralaw virtua1aw library It is the stand of the petitioner that private respondent, "in agreeing to remain in legal custody even during the pendency of the trial of his criminal case, [he] has expressly waived his right to bail." 37 Upon the other hand, private respondent asserts that this claim is totally devoid of factual and legal basis, for in their petition for habeas corpus they precisely questioned the legality of the arrest and the continued detention of Rodolfo Salas, Josefina Cruz and Jose Milo Concepcion, which was not resolved by this Court or by the compromise agreement of the parties but left open for further determination in another proceeding. Moreover, the matter of the right to bail was neither raised by either party nor resolved by this Court, and the legal steps promptly taken by private respondent after the agreement was reached, like the filing of the motion to quash on 7 November 1986 and the petition for bail on 14 May 1987, were clear and positive assertions of his statutory and constitutional rights to be granted not only provisional but final and permanent liberty. Finally, private respondent maintains that the term "legal custody" as used in the Joint Manifestation and Motion simply means that private respondent agreed to continue to be in the custody of the law or in custodia legis and nothing else; it is not to be interpreted as waiver. Interestingly, private respondent admits that:jgc:chanrobles.com.ph

"Custody has been held to mean nothing less than actual imprisonment. It is also defined as the detainer of a person by vir tue of a lawful authority, or the care and possession of a thing or person. (Bouviers Law Dictiona ry, Third Ed, Vol. I, pp. 741-742 citing Smith v. Com. 59 Pa. 320 and Rolland v. Com. 82 Pa. 306)" He further admits that, in the light of Section 1 of Rule 114 of the Rules of Court and settled jurisprudence, the "constitutional right to bail is subject to the limitation that the person applying for admission to bail should be in the custody of the law or otherwise deprived of his liberty." 38 When the parties in G.R. No. 76009 stipulated that:jgc:chanrobles.com.ph

"b. Petitioner Rodolfo Salas will remain in legal custody and face trial before the court having custody over his person."cralaw virtua1aw library they simply meant that Rodolfo Salas, herein respondent, will remain in actual physical custody of the court, or in actual confinement or detention, as distinguished from the stipulation concerning his co-petitioners, who were to be released in view of the recall of the warrants of arrest against them; they agreed, however, "to submit themselves to the court having jurisdiction over their persons." Note should be made of the deliberate care of the parties in making a fine distinction between legal custody and court having custody over the person in respect to Rodolfo Salas and court having jurisdiction over the persons of his coaccused. Such a fine distinction was precisely intended to emphasize the agreement that Rodolfo Salas will not be released, but should remain in custody. Had the parties intended otherwise, or had this been unclear to private respondent and his counsel, they should have insisted on the use of a clearer language. It must be remembered that at the time the parties orally manifested before this Court on 14 October 1986 the terms and conditions of their agreement and prepared and signed the Joint Manifestation and Motion, a warrant of arrest had already been issued by the trial court against private respondent and his coaccused. The stipulation that only the warrants of arrest for Josefina Cruz and Jose Milo Concepcion shall be recalled and that only

they shall be released, further confirmed the agreement that herein petitioner shall remain in custody of the law, or detention or confinement.chanrobles virtual lawlibrary In defining bail as:jgc:chanrobles.com.ph

". . . the security given for the release of a person in custody of the law, . . ."cralaw virtua1aw library Section 1 of Rule 114 of the Revised Rules of Court admits no other meaning or interpretation for the term "in custody of the law" than that as above indicated. The purpose of bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 39 It presupposes that the person applying for it should be in the custody of the law or otherwise deprived of liberty. 40 Consequently, having agreed in G.R. No. 76009 to remain in legal custody, private respondent had unequivocably waived his right to bail. But, Article 6 of is the Civil such Code expressly waiver valid? provides:jgc:chanrobles.com.ph

"Art. 6. Rights may be waived, unless the waiver is contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law."cralaw virtua1aw library Waiver is defined as "a voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim or privilege, which except for such waiver the party would have enjoyed; the voluntary abandonment or surrender, by a capable person, of a right known by him to exist, with the intent that such right shall be surrendered and such person forever deprived of its benefit; or such conduct as warrants an inference of the relinquishment of such right; or the intentional doing of an act inconsistent with claiming it." 41 As to what rights and privileges may be waived, the authority is settled:jgc:chanrobles.com.ph

". . . the doctrine of waiver extends to rights and privileges of any character, and, since the word waiver covers every co nceivable right, it is the general rule that a person may waive any matter which affects his property, and any alienable right or privilege of which he is the owner or which belongs to him or to which he is legally entitled, whether secured by contract, conferred with statute, or guaranteed by constitution, provided such rights and privileges rest in the individual, are intended for his sole benefit, do not infringe on the rights of others, and further provided the waiver of the right or privilege is not forbidden by law, and does not contravene public policy; and the principle is recognized that everyone has a right to waive, and agree to waive, the advantage of a law or role made solely for the benefit and protection of the individual in his private capacity, if it can be dispensed with and relinquished without infringing on any public right, and without detriment to the community at large. . . . . Although the general rule is that any right or privilege conferred by statute or guaranteed by constitution may be waived, a waiver in derogation of a statutory right is not favored, and a waiver will be inoperative and void if it infringes on the rights of others, or would be against public policy or morals and the public interest may be waived.chanrobles.com : virtual law library While it has been stated generally that all personal rights conferred by statute and guaranteed by constitution may be waived, it has also been said that constitutional provisions intended to protect property may be waived, and even some of the constitutional rights created to secure personal liberty are subjects of waiver." 42 In Commonwealth v. Petrillo, 43 it was held:jgc:chanrobles.com.ph

"Rights guaranteed to one accused of a crime fall naturally into two classes: (a) those in which the state, as well as the accused, is interested; and (b) those which are personal to the accused, which are in the nature of personal privileges. Those of the first class cannot be waived; those of the second may be."cralaw virtua1aw library It is "competent for a person to waive a right guaranteed by the Constitution, and to consent to action which would be invalid if taken against his will." 44 This Court has recognized waivers of constitutional rights such as, for example, the right against unreasonable searches and seizures; 45 the right to counsel and to remain silent; 46 and the right to be heard. 47

Even the 1987 Constitution expressly recognizes a waiver of rights guaranteed by its Bill of Rights. Section 12(1) of Article III thereof on the right to remain silent and to have a competent and independent counsel, preferably of his own choice states:jgc:chanrobles.com.ph ". . . These rights cannot be waived except in writing and in the presence of counsel."cralaw virtua1aw library This provision merely particularizes the form and manner of the waiver; it, nevertheless, clearly suggests that the other rights may be waived in some other form or manner provided such waiver will not offend Article 6 of the Civil Code. We hereby rule that the right to bail is another of the constitutional rights which can be waived. It is a right which is personal to the accused and whose waiver would not be contrary to law, public order, public policy, morals, or good customs, or prejudicial to a third person with a right recognized by law.chanrobles.com.ph : virtual law library The respondent Judge then clearly acted with grave abuse of discretion in granting bail to the privateRespondent. WHEREFORE, the Orders of respondent Judge of July 7, 1987 and July 30, 1987 in Criminal Case No. 86-48926 entitled People of the Philippines v. Rodolfo C. Salas alias Commander Bilog/Henry, Josefina Cruz alias Mrs. Mercado, and Jose Milo Concepcion alias Eugene Zamora, for Rebellion, are hereby NULLIFIED and SET ASIDE. SO ORDERED.

Fernan, C.J., Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin, Grio-Aquino, Medialdea and Regalado, JJ., concur.

[G.R. PEOPLE OF THE

No.

L-36638. v.

June ALEXANDER SACABIN @

28,

1974.]

PHILIPPINES, Plaintiff-Appellee,

"ROMEO",Defendant-Appellant.

Solicitor General Estelito P. Mendoza, Assistant Solicitor General Jaime M. Lantin and Solicitor Renato S. Puno for PlaintiffAppellee. Pio A. Sepulveda, for Defendant-Appellant.

DECISION

FERNANDEZ, J.:

Convicted of rape and sentenced to suffer the penalty of reclusion perpetua 1 and to pay the offended party, Erlinda Montibon, P3,000.00 for moral damages and P3,000.00 for exemplary damages, appellant Alexander Sacabin has appealed to this Court and now pleads for acquittal on the ground, which the lower court overruled, that although he really had sexual intercourse with the offended party, she voluntarily and willingly acceded to it because they were sweethearts. This is a classic case of rape where, on the issue of whether or not the woman was raped, the only eye-witnesses testifying are the offended party for the prosecution and the accused in his defense. Thus, the judicial observation has been made long ago, that rape is hard to be proved, but still harder to be defended. And in the case at bar, We cannot be aided by the general rule that the findings of fact of the trial judge must be sustained on appeal because he has had the opportunity to hear and see the witnesses when they testified before him, for all the witnesses for the prosecution testified before one trial Judge 2 , while the appellant presented his evidence consisting of his lone testimony before another Judge 3 , and the latter was the one that rendered the decision appealed from. We, therefore, reviewed and evaluated all the evidence on record with extra care. On the date of the commission of the offense, November 23, 1968, Erlinda Montibon was barely over 15 years old. She finished sixth grade. She was then living in the house of the spouses Patrolman and Mrs. Constancio Villondo as a helper. She knew the appellant, then single and 22 years old. He was a laborer in the Laya Building in Iligan City, then under construction, and was a usual buyer of native bread and cakes which Erlinda used to sell at the supermarket nearby. Erlinda testified that around 8:00 oclock in the evening of November 23, 1968, she was enticed by one Teodelita Dagondon to go to the supermarket. Teodelita said she was going to buy for her birthday the following day all of Erlindas bread and cakes. They went upstairs to one of the rooms of the Laya Building where they would agree on the price of the bread and cakes. The appellant was then there inside. The door was closed and appellant was able to have sexual intercourse with her two times. This is the version of Erlinda on how the rape was consummated: 4 x x x

"A Q A Q

Sacabin What I did wanted Did

went you to you do

near when get

me Romeo away shout

and Sacabin from for

wrestled wrestled his

me. you? hold. help?

A Yes, I shouted for help. x x x

Did

you

submit

to

the

urgings

of

the

accused

in

this

case?

A Q A Q A Q A Q A During I We Could were you Quite all the time for inform a that help What It you but What wrestling this for Court long were

No, did sometime. more time wrestling hear with me him, how In long fact did you he you all not the the also cry out you he wrestle smell(ed) with got for help were

sir. do? wine. Sacabin? me. outside? closed. door? closed.

before did

shouted

nobody

because

windows

about was

Q Please inform this Honorable Court if after all the wrestling by Sacabin and your feminine resistance if Sacabin was able to have a sexual intercourse with you. A Q A Q A After He he also made kissed the me virtual on succeeded in also long was a the record introducing his that penis into and pull motion minutes the your vagina, pull made by . this insertion, and what squeezed 1aw witness what did is he his Romeo . do if did my he do mammary if Yes, What he trapped one of my Romeo legs and I fell on the ground and then organ he into sat on me.

did you

feel when

Sacabin

was able to

introduce his sexual

your vagina? Pain. any? gland. library crying. any? organ. Sacabin? .

COURT:chanrob1es Make Q A Q A For When he He how Quite it

pushed push and few

Q Please inform this Honorable Court if after the introduction of the penis and the push and pull motion if you felt some liquid getting inside your vagina. A Q A Q A Q A Was that After After that What I the only that, Romeo what Sacabin did was sexual intercourse There happened? left the you still that was Two done Please room do crying on you by the but was, inform be this was after . accused in Honorable the he . Alexander other sir. Court. room. left? . Sacabin? times.

COURT:chanrob1es When A Q A In In was

virtual the Nearing the the

1aw second

library time? dawn.

same same

place? place.

Q The second time when the accused tried to make sexual intercourse with you your already yielded your body to him. A Q A I also What wrestled with No, did him because I you felt the sir. do? pain.

Q When you wrestled with him, did you not occur to your mind to renew your call for help from outside? A Q Was I Sacabin able also to shouted introduce his sexual for organ into help your vagina . for the . second . time?

A Yes, because he rode on me for the second time and I was already weak and I dont want it because it was painful. Q Did it not occur to your mind to appeal to this Alexander Sacabin to please pity you because you were feeling pain in your body? A I asked Romeo not to because it was painful and then Romeo said never mind just allow me because anyway I will marry you. Appellant Alexander Sacabin declared that he was 22 years old, single and a mason by occupation. He saw Erlinda in the evening of that date. The two of them ate and drank at Elizas restaurant, which was at the Iligan Supermarket, in front of which was the Laya Building. From the restaurant, they went to her house owned by her master, Patrolman Villondo. While in the house, Erlinda told him that she wanted to go with him. He left and Erlinda followed him to the Laya Building where he used to sleep. He was working there as a laborer and the building was still under construction. When they arrived at the Laya Building, he told Erlinda that he would go to Cagayan upon the termination of his work. Erlinda told him that she would go with him to Cagayan. 5 "q a q a What was I What Yes, your answer, if any, when she told you that she is going to Cagayan love if love with you? me? any? you.

answered, was

yes, her I

really answer,

you

q By the way, you have stated before this Court that you are sweethearts with Erlinda, when did you become sweethearts? a q a While I was Where Sometime she working at was bring Laya building she refreshments this Erlinda was selling at Laya selling refreshments. refreshments? building.

q More or less, can you tell the Court what time when was that when your love was accepted by Erlinda? a August 2, 1968.

q Did you consider that you were sweethearts, did you receive anything from her, some sort of letters or tokens?

a I did not ask anything because we used to see each other and I did not ask any remembrance from her because she is poor like myself."cralaw virtua1aw library Erlinda then told appellant that she loved him. They slept together in a room upstairs in the Laya Building. In the room where they slept, there were no tenants for that particular unit of the apartment. But there were already electric lights inside that room. They slept on a bed made of plywood. They had two sexual intercourse, the first time from 8:00 to 9:00 oclock p.m., and the second in the early morning. They had already one sexual intercourse about one week prior to November 23, 1968, also at the Laya Building. At that time, she was getting water. 6 After a very careful review of the evidence, We affirm the lower courts finding that the version of the offended party is th e one that should be believed over that of the Appellant. The offended party, Erlinda, was a young provinciana, barely over 15 years of age, uncouth and almost unlettered, was a mere household helper but at the same time engaged in the selling of native bread and cakes. She belonged to the poor and was one of them, and was still possessed of the traditional and proverbial modesty of the Filipina, especially the provinciana. She would not have filed a complaint for rape and suffered the torment if not the ignominy of having to testify in a court of justice about the wrong done to her, if in truth she was not really raped. Early in the morning of November 24, 1968, she was brought by the appellant to his fathers house in Rosario Heights. She wen t with him because she was threatened with death if she would not do so. Patrolman Villondo was already there because he was previously informed that Erlinda failed to return to their house and that appellant was the one that brought her. And according to Erlinda, she did not tell Patrolman Villondo that she was raped as she was "ashamed to tell him because he is a man." And at that time, Villondos wife was in Cebu. But when she arrived about six days later, she was at once informed by Erlinda that appell ant raped her. And immediately thereafter, he was brought to the medico legal officer of Iligan City, Dr. Manuel Simon, who testified that on December 2, 1968, he examined the offended party, found lacerations in her hymen, in positions 10 and 8 oclock, which had ju st recently healed (a laceration heals in 7 days). The lacerations could not have been more than one month old "because at the edge of the lacerations, the color was reddish and therefore they have healed recently."cralaw virtua1aw library Physical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses. And the physical evidence in this case strongly corroborates the testimony of the offended party that she was raped. They consist of the green color dress and the panty that Erlinda was wearing at the time she was raped and which show a torn portion of the left side of the dress and a torn portion of the panty. According to Erlinda, they were torn when appellant forcibly pulled her dress up and removed her panty shortly before she was raped. Surprisingly. appellant did not at all rebut the testimony of Erlinda on this point. Francisco Bagohin, who was then also residing in the house of Patrolman and Mrs. Constancio Villondo, he being the drive of the rig owned by the latter, corroborated the testimony of the offended party, Erlinda, that Teodelita Dagondon was the one who fetched Erlinda "because the puto and bread that she is selling will all be bought by Teodelita for the next day would be her birthday."cralaw virtua1aw library The testimony of the appellant that he and Erlinda were sweethearts is unworthy of belief. Erlinda denied vehemently this testimony of the appellant and even stated that he never courted her. And if they were really sweethearts, Erlinda would not have filed this serious charge of rape against him. IN VIEW OF ALL THE FOREGOING, the decision appealed from is hereby affirmed in its entirety with costs against Appellant. Zaldivar (Chairman), Fernando, Barredo, Antonio and Aquino, JJ., concur.

[G.R.

No.

L-42665.

June

30,

1988.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG, Defendants-Appellants. The Manuel P. Solicitor Punzalan for General accused Herminigildo for Plaintiff-Appellee. Sunpongco.

Felipe T. Sineneng for accused Silvestre Sunpongco and Arsenio Calayag.

DECISION

CORTES, J.:

Defendants appeal from the judgment of the Court of First Instance of Bulacan convicting them of the complex crime of forcible abduction with rape. The appeal was elevated by the Court of Appeals to this Tribunal in view of the penalty of life imprisonment imposed by the trial court. Juanita Angeles is the complainant in this complex crime of forcible abduction with rape. At the time the alleged crime was committed she was 43 years of age, single, a registered pharmacist by profession and a rice merchant doing business in Hagonoy, Bulacan. In her complaint she pointed to the three accused-appellants together with one Benjamin Gabriel as the perpetrators of the crime. On March 4, 1965 an information was filed by the Provincial Fiscal accusing the four men of the complex crime of forcible abduction with rape committed as follows:chanrob1es virtual 1aw library That on or about the 23rd day of October, 1964, in the municipality of Guiguinto, province of Bulacan, Philippines, and within the jurisdiction of this Honorable Court, the said accused Silvestre Sunpungco, Benjamin Gabriel, Herminigildo Sunpungco and Arsenio Calayag, conspiring and confederating together and helping one another, did then and there wilfully, unlawfully and feloniously, by means of violence, force, intimidation and trickery and with lewd designs, abduct the complaining witness Juanita F. Angeles, single, by then and there taking and carrying her out of a jeep while she was in Guiguinto and then forcibly loaded in an automobile and thereafter brought to the Hill Top Hotel in Tagaytay City against her will, and once there by means of violence, threats and intimidation, the said accused Silvestre Sunpungco have carnal knowledge of the said Juanita F. Angeles against her will. That in the commission of this crime the following aggravating circumstances were present, to wit: conspiracy, use of motor vehicle and superior strength. [Records, pp. 61-62]. On June 9, 1965, the accused were arraigned and without the assistance of counsel, they all pleaded not guilty. Subsequently, on joint motion of the fiscal and the private prosecutors and over the objection of the defense, Accused Benjamin Gabriel was discharged by the court to become a state witness. The prosecutions version of what transpired on the date when said crime was committed is summarized by the trial court, to wit:chanrob1es virtual 1aw library . . . that on October 23, 1964, at around 9:00 oclock in the morning, Juanita Angeles, the offended party, left her res idence at Hagonoy, Bulacan to get rice from the RCA warehouse of Dr. Lansan at Guiguinto, Bulacan. She was with one Benita Fabian and they rode a passenger jeep driven by Virgilio Gan. As they reached the south approach of Tabang Bridge, Guiguinto, Bulacan, a car overtook them and stopped right in front of their jeep, thus forcing them to stop. The car was being driven by accused Arsenio Calayag, and the passengers were the accused Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel. Thereafter, the three passengers just mentioned . . ., alighted from the car and boarded the jeep, after which Silvestre Sunpongco ordered its driver to proceed to the old road. Silvestre Sunpongco sat at the back of Juanita Angeles, Benjamin Gabriel sat behind the driver, and Herminigildo Sunpongco forced himself at the left side of the driver, while Arsenio Calayag followed in the car he was driving.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Upon reaching an uninhabited place on the old road, Silvestre Sunpongco ordered the jeep to stop and the three accused got out. Silvestre tried to pull the offended party out of the jeep, but she struggled and fought back so he ordered Benjamin Gabriel to help him. Benita Fabian, meanwhile, embraced Juanita on the waist and pleaded with the three accused to leave Juanita alone, but Herminigildo Sunpongco separated them by force. Despite her struggling and resisting, the accused were able to pull the offended party out of the jeep, and although Juanita embraced Benita Fabian and asked the latter not to leave her, Silvestre kept on pulling her as Benjamin Gabriel continued pushing her until they were finally able to force her into the car with the aid of a drawn gun. Then Benita Fabian, who was able to free herself from Herminigildo Sunpongco, ran towards the car but Silvestre closed its doors at once. Then Herminigildo pushed Benita and she fell to the ground, after which the former got into the car and it sped away. They proceeded towards Manila, then to the Hilltop Hotel in Tagaytay City, which is owned by Federico Suntay, a first cousin of accused Silvestre Sunpongco. Upon reaching the hotel, Benjamin Gabriel, Herminigildo Sunpongco and Arsenio Calayag alighted and went inside, while Silvestre and Juanita were left in the car. Then Silvestre tried to pull her out of the car but she resisted, so he drew out his gun again and told her that while he did not like to do it, that was the only way to bring her out. Finally, Silvestre was able to pull her out of the car. He brought her inside the hotel, with one of his arms around her shoulders and the other arm poking the gun at her side, pushed her into a room and locked the door. Once inside the room, Silvestre Sunpongco pushed Juanita Angeles again and she fell on a chair. Then he embraced and kissed her, and continued taking liberties, as she cried and fought back. Afterwards he removed his pants, pushed her and forced her to lie down on the bed. Although she kicked and rolled on the bed, Silvestre was able to overcome her when he hit her on the stomach, as a result of which she lost consciousness. It was then that Silvestre Sunpongco succeeded in having his first sexual intercourse with her. After that, he went out and locked the room. Due to hunger and physical exhaustion, she must have dozed off, and when she woke up, Silvestre Sunpongco was on top of her again. She struggled and tried to resist him, but to no avail. Silvestre Sunpongco consummated the second sexual intercourse. Then somebody called for Silvestre and he left the room. Suddenly, she heard the voice of her brother calling her name, so she rushed out to him. Dr. Jose Angeles was there with some CIS agents. She was physically examined the next day by Dr. Ramon Pascual, captain in the Medical Corps of the Philippine Constabulary, who submitted his medico-legal report marked Exhibit "A" containing his findings as follows: lacerations in the complainants vagina at 9 and 11 oclock positions, which must be due to the insertion of a penis; vaginal smears are positive for spermatozoa; contusions at the posterior cervical and antero-lateral aspect middle third of the right hip, all of which are compatible with recent sexual contact. Benita Fabian corroborated the testimony of Juanita Angeles up to when she was left behind at Tabang, after the car carrying all the accused and the offended party sped towards Tagaytay City. [Records, pp. 523-527].chanrobles lawlibrary : rednad x x x

During the time material to this case Silvestre Sunpongco was 34 years old, a widower with six children, and a La Mallorca bus driver whose highest educational attainment is only grade four. The other accused-appellant Arsenio Calayag was then 36 years of age, married and the regular driver of the car borrowed by Silvestre Sunpongco and used by them. Herminigildo Sunpongco, the third accused-appellant, was then 27 years old, married and is a nephew of Silvestre Sunpongco. During the trial of the criminal case, specifically, after the defense had started presenting its evidence but before Silvestre Sunpongco took the witness stand, said accused jumped bail and it was not until six years thereafter that he was arrested and the trial resumed. The principal accused-appellant Silvestre Sunpongco adduced in evidence his own version of the case before the trial court as follows:chanrob1es virtual 1aw library He started courting the complainant a few weeks after the death of his first wife, and the complainant accepted and they agreed to get married. On October 23, 1964 he went to Malolos, on previous agreement with her, for the express purpose of eloping with her. That morning, he rode the car of his sister driven by Arsenio Calayag. On the way, he gave a lift to Herminigildo Sunpongco and Benjamin Gabriel. Upon arriving at Malolos, Juanita Angeles was not there, but they saw her in a jeep going to Guiguinto. So, they followed. At Tabang, he alighted from the car and complainant alighted from the jeep and they talked. Accused Silvestre told her: "If you really love me, you will come with me and we will get married." They agreed to go to Manila to get married, but they later changed their minds and instead proceeded to Cavite. On the way they stopped at the Aristocrat Restaurant to eat, stayed there for more than an hour, then proceeded to Hilltop Hotel at Tagaytay. Later that evening, while in the hotel, Pepito Mangahas, Dr. Jose Angeles and some CIS agents arrived. Pepito asked Silvestre why they were there, and said accused replied that he and

complainant had eloped. Then he gave to Pepito the letters which complainant wrote to him. Thereafter, he was brought to Camp Crame. He did not forcibly abduct complainant, he said. Complainant filed this case against him because she was threatened and forced to do so by her brother. He also added that he did not know why Benjamin Gabriel, his boyhood friend, testified for the prosecution. He jumped bail because Dr. Angeles told him: "I am ready to spend even how much just to put you in jail." [Records, pp. 529-531] The two other accused-appellants Arsenio Calayag and Herminigildo Sunpongco gave similar testimonies in the trial court as follows:chanrob1es virtual 1aw library Between 8:00 and 9:00 A.M. on October 23, 1964 Arsenio Calayag was driving the car owned by Nena de Marucot, Silvestre Sunpongcos sister, which was borrowed by accused Silvestre, towards Manila. Silvestre had Benjamin Gabriel as companion. On the way, they stopped to give Herminigildo Sunpongco a lift. Thereupon, Silvestre requested Herminigildo to go with them because he was going to elope with Juanita Angeles, to which he consented. After crossing Tabang Bridge, they overtook the jeep on which Juanita Angeles and her companion Benita Fabian were riding and which was being driven by Virgilio Gan, and blocked its way so it had to stop. Thereupon, Silvestre, Herminigildo and Benjamin Gabriel alighted from the car and boarded the jeep. Silvestre Sunpongco pulled the complainant by the hand to the car as Benjamin Gabriel simultaneously pushed her from the back. At the same time, Benita Fabian was holding on to the complainant and embracing her, so Herminigildo held Benita to prevent her from going into the car as instructed by Silvestre. From Tabang, they proceeded to Hilltop Hotel, Tagaytay City, stopping only once to buy gasoline. Upon reaching the hotel, Silvestre Sunpongco and Benjamin Gabriel led Juanita Angeles inside, while Arsenio Calayag and Herminigildo Sunpongco left for Hagonoy, but were apprehended on the way by CIS agents. [Records, pp. 528529].chanrobles virtual lawlibrary On October 2, 1975, after due trial, the Bulacan Court of First Instance rendered a decision convicting the three accusedappellants, to wit:chanrob1es virtual 1aw library WHEREFORE, this Court finds the accused SILVESTRE SUNPONGCO, HERMINIGILDO SUNPONGCO and ARSENIO CALAYAG guilty beyond reasonable doubt as principals of the complex crime of forcible abduction with rape, as defined and penalized under Articles 335 and 342 in relation to Article 43 of the Revised Penal Code, and hereby sentences each of them to suffer the penalty of LIFE IMPRISONMENT, with the accessory penalties of the law, to indemnify jointly and severally the complainant Juanita Angeles in the sum of Twenty Thousand Pesos (P20,000.00) as moral damages, and to pay their proportionate share of the costs. [Records, p. 539]. They now interpose this present appeal. Silvestre Sunpongco and Arsenio Calayag filed a joint brief and assigned two errors. Herminigildo Sunpongco likewise filed his own appellants brief and assigned th ree errors allegedly committed by the trial court. Consolidating the assignments of errors made by herein accused-appellants, they raise the following points:chanrob1es virtual 1aw library I. THE TRIAL COURT ERRED IN HOLDING THAT IT HAD ACQUIRED JURISDICTION TO TRY THE CASE.

II. THE TRIAL COURT ERRED IN HOLDING THAT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE WAS COMMITTED AND THAT THE APPELLANTS ARE GUILTY THEREOF BEYOND REASONABLE DOUBT. III. THAT THE LOWER COURT ERRED IN HOLDING THAT CONSPIRACY AMONG THE ACCUSED HEREIN TO COMMIT THE CRIME OF FORCIBLE ABDUCTION WITH RAPE HAS BEEN ESTABLISHED. I. The alleged lack of jurisdiction of the trial court is assailed by accused-appellants Silvestre Sunpongco and Arsenio Calayag on the ground that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution during the trial of the case. Article 344 of the Revised Penal Code and Rule 110 section 5 (formerly section 4 of the Revised Rules of Court) of the 1985 Rules on Criminal Procedure require that the offenses of abduction and rape and other offenses which cannot be prosecuted de oficio shall not be prosecuted except upon complaint filed by the offended party. Compliance with this is a jurisdictional and not merely a formal requirement. The Rules of Court further provides that evidence which has not been formally offered shall not be considered by the court. [Rule 132, section 35]

Applying these rules to the case at bar it is admitted that the sworn complaint of Juanita Angeles was not formally offered in evidence by the prosecution. This failure to adhere to the rules however is not fatal and did not oust the court of its jurisdiction to hear and decide the case. Jurisprudence reveals that if the complaint in a case which cannot be prosecuted de oficio is forwarded to the trial court as part of the records of the preliminary investigation of the case, the court can take judicial notice of the same without the necessity of its formal introduction as evidence for the prosecution [People v. Savellano, G.R. No. L-31227, May 31, 1974, 57 SCRA 320, 324; People v. Tampus, G.R. No. L-42608, February 6, 1979, 88 SCRA 217, 221; and People v. Rondina, G.R. No. L-47895, April 8, 1987, 149 SCRA 128, 132-133]. The records of this case forwarded to the Court of First Instance include the complaint filed by Juanita Angeles in the municipal court of Guiguinto, Bulacan which conducted the preliminary investigation [Records, page 3]. Likewise the minutes of the September 3, 1965 healing shows that the subject complaint was marked as Exhibit "X" by the court as disclosed by the records on page 91. II. Article 342 of the Revised Penal Code defines and penalizes the crime of forcible abduction. The elements of forcible abduction are (1) that the person abducted is any woman, regardless of her age, civil status, or reputation; (2) that the abduction is against her will; and (3) that the abduction is with lewd designs. On the other hand, article 335 of the same Code defines the crime of rape and provides for its penalty. The elements of rape pertinent to this case are: (1) that the offender had carnal knowledge of a woman; and (2) that such act is accomplished by using force or intimidation.chanrobles lawlibrary : rednad Silvestre Sunpongco would insist that he and complainant were sweethearts who agreed to elope on that fateful day in October. This defense however is belied by the manner in which the so-called "elopement" was carried out. Juanita Angeles version that the abduction was carried out against her will is borne out by the testimonies of witnesses presented by the prosecution as well as by two of the accused-appellants, Arsenio Calayag and Herminigildo Sunpongco. These two admitted during the trial having seen the complainant resisting as she was forced to board the car. On cross-examination, Arsenio Calayag testified thus:chanrob1es virtual 1aw library ATTY. OCAMPO:chanrob1es virtual 1aw library

Q You said while Juanita Angeles was sitting inside the jeep Silvestre Sunpongco was holding her hands, is it not also a fact he was at the same time pulling Juanita Angeles out of the jeep? A Yes, sir.

Q You also stated that when Juanita Angeles was already on the ground .. Silvestre Sunpongco, Herminigildo Sunpongco and Benjamin Gabriel led her to the car. Will you please tell the Honorable Court how the three of them led her to the car? A Q A Q A Benjamin Gabriel and Silvestre Sunpongco. x x x They The The were three two holding of of her. them? them. Who?

Q A Q A

On

what

part

of

the

body

Silvestre Hands

Sunpongco

holding

Juanita

Angeles? only.

How

about Waist

Benjamin

Gabriel? sir.

Q While Silvestre Sunpongco was holding Juanita Angeles on the hands and Benjamin Gabriel by the waist they were pushing her to the car? A Yes, sir. x x x

Silvestre

Sunpongco

was

pulling

her

by

the

arm

Benjamin

Gabriel

was

pushing

her?

A Benjamin Gabriel was pushing her. x x x

Q Is it not a fact that while Silvestre Sunpongco was pulling her and Benjamin Gabriel was pushing her Juanita Angeles was struggling?. x x x

Yes,

sir.

[TSN,

June

23,

1967,

pp.

90-92,

94-95].

(Italics

supplied)

Herminigildo Sunpongco likewise admitted having witnessed the vain struggles of Juanita Angeles and at the same time her tears when he stated on cross-examination that:cralawnad ATTY. OCAMPO:chanrob1es virtual 1aw library

Q Will you please tell the Honorable Court how Silvestre Sunpongco was leading Juanita Angeles after she alighted from the jeep in that old road? A I noticed that he (sic) was being pulled by the hands of Silvestre Sunpongco while her other hand was holding the jeep. x x x

Q A

And

Juanita

Angeles

was Yes

crying

at

that

time? sir.

Q And she was finally led into the car by Silvestre Sunpongco because Silvestre Sunpongco was pulling her while Benjamin Gabriel was pushing her at the back? A Q A Yes All sir. along [TSN. July Yes Juanita 21, 1967, Angeles pp. 123-124]. was (Italics sir. crying? supplied)

The three accused-appellants would further negate the probability of carrying on the abduction considering the incident took place in broad daylight and the group had to travel from Guiguinto, Bulacan to Tagaytay City. They aver that in view of these circumstances complainant could have screa med or raised an outcry to summon assistance. Juanita Angeles conduct however can be explained by her fear at that time when four men suddenly confronted them and positioned themselves in such a way that resistance would be impossible. Further during their travel to Tagaytay City Juanita Angeles was rendered practically helpless. She was forced to sit between Silvestre Sunpongco and Benjamin Gabriel while Arsenio Calayag and Herminigildo Sunpongco sat in front of the car. The presence of the lewd design is manifested by the subsequent rape that occurred.

At this point, it is noteworthy to mention that the crime of rape is difficult both to prove and to disprove considering the very nature of the offense involving as it does in most cases only two persons. Consequently, the final resolution of the trial court would hinge on whose version is more credible, more plausible and more trustworthy considering the circumstances surrounding its commission. The case at bar is no different. To prove that the crime of rape was committed the court has to examine carefully the evidence presented by the parties. In this instance the circumstance of force and intimidation attending the crime of rape is manifested not only by the testimony of the complainant but the medico-legal report filed by Capt. Ramon Pascual as well. His findings are as follows:chanrob1es virtual 1aw library x x x

Extragenital:chanrob1es virtual 1aw library x x x

Contusion at the posterior cervical region, measuring 6 cm. by 4 cm., at the posterior midline, 143 cm. above the heel. Contusion at the antero-lateral aspect middle third of the right leg, measuring 7 cm. by 5 cm., 3 cm. from its anterior midline, 27 cm. above the heel.chanrobles virtual lawlibrary Genital:chanrob1es virtual 1aw library

There is moderate amount of pubic hair, evenly distributed. The labia majora and minora are in coaptation. There is moderate amount of leucorrheal discharge. On separating the lips are revealed abrasions at perineum and at both sides of the vulva. The hymen disclosed lacerations at 9 and 11 oclock positions. The external vaginal orifice offers moderate resistance upon introduction of the examining index finger and the virgin-sized speculum. The cervix is normal in color and consistency, with an abraded area at its lower lip. The uterus is not enlarged. MICROSCOPIC Vaginal smears are FINDINGS:chanrob1es positive for spermatozoa virtual compatible with recent sexual and virtual negative for 1aw contact. [Records, pp. 1aw gram-negative library diplococci. library 23-24]

REMARKS:chanrob1es Findings are

As stated by the Supreme Court," (P)hysical evidence is evidence of the highest order. It speaks more eloquently than a hundred witnesses, . . ." [People v. Sacabin, G.R. No. L-36638, June 28, 1974, 57 SCRA 707, 713]. Moreover the conduct of the complainant after the incident took place further strengthens her case. After the forcible abduction and the rape took place and her rescue that same night, she lost no time the following day to have herself examined at the Philippine Constabulary Central Laboratory Office at 8:30 in the morning, she went to the Criminal Investigation Service office at Camp Crame to give her testimony, and she filed her complaint before the fiscals office. Com pare this to the conduct of accusedappellants particularly Silvestre Sunpongco who jumped bail in the course of the trial and was not arrested until after six years. It also behooves this Court to look into the possible motive Juanita Angeles could have had in filing the criminal complaint against accused-appellants had she not been wronged, considering her age, status, reputation and educational attainment, for on this point, Accused-appellants argue that the complainant was merely threatened and forced by her brother, Dr. Jose Angeles, to file the complaint against them. Considering the evidence presented this Court finds the appellants stance as implausible. III. Anent the last error assigned by the accused-appellants, they would refute the testimony given by accused-turned state witness Benjamin Gabriel summarized by the trial court, as:chanrob1es virtual 1aw library Sometime in the second week of October, 1964, between 8:00 and 9:00 P.M., he met the accused Silvestre Sunpongco, Herminigildo Sunpongco and Arsenio Calayag by previous appointment at the "glorietta" in Hagonoy, Bulacan, at which time Silvestre told them to wait for Juanita Angeles on her way to church the next day, a Sunday, and then take her by force, place her

inside the car, and bring her to Tagaytay where Silvestre would rape her so that she would be his, because somebody from Pulilan was courting her. They waited for Juanita as planned, but she failed to appear. Saturday night of the succeeding week, they met again and agreed to consummate their plan to abduct Juanita Angeles the day after, also a Sunday, but again she did not appear. Silvestre Sunpongco told them to wait for another occasion. On October 20, 1964 they met again in the same place. This time, Silvestre told them that on Friday, October 23, 1964 Juanita Angeles would get rice from the RCA at Guiguinto, and they will wait for her at the crossing at Malolos to snatch her and take her to Tagaytay in order that he would rape her. On October 23, 1964, between 7:00 and 9:00 A.M., they all met in front of the municipal building of Hagonoy, Bulacan, rode a car belonging to Nena Marucot, the sister of Silvestre Sunpungco, which was being driven by Arsenio Calayag, and proceeded to the appointed place at Malolos, where they stopped and waited for Juanita Angeles. After a while, they saw her coming in a jeep driven by Virgilio Gan. They followed the jeep and on reaching Tabang Bridge, they blocked its way and forced it to stop.cralawnad The rest of his story is a corroboration of those of the other prosecution witnesses, although he ended it by saying that once Juanita Angeles was placed inside a room at the Hilltop Hotel by Silvestre Sunpongco, the latter ordered this witness to stay on guard outside while he ordered Herminigilo Sunpongco and Arsenio Calayag to return to Hagonoy; that at 5:00 P.M. he entered one of the rooms because he had fever, and that at about 9:00 P.M. a hotel boy woke him up and told him to tell Silvestre Sunpongco that somebody was looking for him. [Records, pp. 523-528]. The accused-appellants in denying the existence of conspiracy would question the discharge of Benjamin Gabriel to become a state witness. Particularly they aver that Benjamin Gabriels testimony cannot be substantially corroborated in its mat erial points. An indicium of conspiracy is." . . when the defendants by their acts aimed at the same object, one performing one part and another performing another part so as to complete it, with a view to the attainment of the same object, and their acts, though apparently independent were in fact concerted and cooperative, indicating closeness of personal association, concerted action and concurrence of sentiments, . . ." [People v. Geronimo, G.R. No. L-35700, October 15, 1973, 53 SCRA 246, 254] This Court agrees with the prosecutions contention that coupled with the testimonies of Juanita Angeles and Benita Fabian, the following are sufficient corroboration of Benjamin Gabriels testimony on conspiracy:chanrob1es virtual 1aw library (1) After the jeep where Juanita Angeles and Benita Fabian were riding and forced to stop by a car occupied by appellants, the appellants and Benjamin Gabriel all got off from said car and approached the jeep. (2) Herminigildo Sunpongco, Benjamin Gabriel and Silvestre Sunpungco boarded the jeep used by the complainant and Benita Fabian. Thereafter, Silvestre ordered the driver of the jeep to proceed to an old road. (3) Arsenio Calayag, in the meantime drove the car and followed the jeep that carried complainant and the other appellants. (4) Upon reaching an isolated place, Silvestre Sunpongco ordered the driver of the jeep to stop. The car also stopped. Whereupon, the appellants riding in the jeep alighted. (5) To force Juanita Angeles into the car, Silvestre Sunpongco pulled Juanita by the hand, Benjamin Gabriel pushed her at the back, while Arsenio Calayag positioned himself behind the wheel of the car, ready to drive the moment Juanita was successfully brought into it. As this was going on, Herminigildo Sunpongco was holding Benita to prevent her from giving the complainant a helping hand. (6) From the time the car finally drove off with Juanita Angeles, up to the time it reached Tagaytay City, appellants Herminigildo Sunpongco, Benjamin Gabriel, Silvestre Sunpongco and Arsenio Calayag were inside the vehicle. *Appellees Brief, pp. 12-13] The discharge of Benjamin Gabriel to become a state witness is likewise questioned by Herminigildo Sunpongco who avers that on the basis of the evidence presented by the prosecution it is he who appears to be the least guilty. On this point suffice it to state that,." . . (A)ll that the law requires, in order to discharge an accused and to use him as a state witness is that the defendant whose exclusion is required does not appear to be the most guilty, not necessarily that he is the least guilty, . . ." [People v. Court of Appeals, G.R. No. 55533, July 31, 1984, 131 SCRA 107, 112] Considering the testimonies and evidence presented this Court is of the belief that the trial court did not err in convicting herein appellants of the crime charged.chanrobles law library However, the penalty imposed by the trial court is erroneously designated "life imprisonment." The correct term is reclusion perpetua [People v. Abletes, G.R. No. L-33304, July 31, 1974, 58 SCRA 241, 248].

WHEREFORE, the decision of the Court of First Instance of Bulacan is hereby AFFIRMED with the modification that the indemnity awarded by the trial court is raised to P30,000.00. SO ORDERED.

[G.R.

Nos.

108280-83.

November

16,

1995.]

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, Petitioners, v. PEOPLE OF THE PHILIPPINES and COURT OF APPEALS,Respondents.

[G.R.

No.

114931-33.

November

16,

1995.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. ANNIE FERRER, Accused. ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO TAMAYO, Accused-Appellants. M.M. Lazaro and Associates & Lazaro Law Firm for petitioners in 108280-83 and appellants in 114931-33. The Solicitor General for respondents in 108280-83 and for plaintiff-appellee in 114931-33.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF THE TRIAL COURT ON THE CREDIBILITY OF WITNESSES; NOT TO BE DISTURBED EXCEPT FOR COMPELLING REASONS. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness testimony. Banculos mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the courts discretion, therefore, the testimony of a witness can be believed a s to some facts but disbelieved with respect to the others. 2. ID.; ID.; ADMISSIBILITY; PHOTOGRAPHS; PRIMA FACIE PROOF OF EXACTNESS AND ACCURACY SUFFICIENT. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. The value of this kind of evidence lies in its being a correct representation or reproduction of the original, and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. The photographer, however, is not the only witness who can identify the pictures he has taken. The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 3. ID.; ID.; CONSPIRACY; EXISTENCE INFERRED FROM ACTS INDICATING CONCERTED ACTION OR COMMUNITY OF PURPOSE. We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a conviction. Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 4. CRIMINAL LAW; DEATH CAUSED IN A TUMULTUOUS AFFRAY; ELEMENTS; NOT ESTABLISHED IN CASE AT BAR. For death caused in a tumultuous affray to apply, it must be established that: (1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 5. ID., QUALIFYING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH; PROPERLY APPRECIATED IN CASE AT BAR. As the lower courts found, the victims, assailants were numerous by as much as fifty in number and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But this attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued

beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder. 6. ID.; ID.; TREACHERY; CANNOT BE APPRECIATED ABSENT PROOF THAT THE ATTACK ON THE VICTIM WAS DELIBERATE AND CONSCIOUSLY CHOSEN TO INSURE ASSAILANTS SAFETY FROM ANY DEFENSE THE VICTIM COULD HAVE MADE. Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants safety from any defense the victim could have made. True, the attack on Salc edo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery, is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 7. ID.; ID.; EVIDENT PREMEDITATION; CANNOT BE APPRECIATED WHERE ATTACK ON VICTIM WAS SUDDEN AND SPONTANEOUS AND NOT PRECEDED BY COOL THOUGHT AND REFLECTION. The qualifying circumstance of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was nor preceded by cool thought and reflection.

DECISION

PUNO, J.:

The case before us occurred at a time of great political polarization in the aftermath of the 1986 EDSA Revolution. This was the time when the newly-installed government of President Corazon C. Aquino was being openly challenged in rallies, demonstrations and other public for a by "Marcos loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of Stephen Salcedo, a known "Coryista."cralaw virtua1aw library From August to October 1986, several informations were filed in court against eleven persons identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 86-47322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 96-47617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No. 86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as well as Annie Ferrer charging them in accomplices to the murder of Salcedo. The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the police officers who were at the Luneta at the time of the incident. In support of their testimonies, the prosecution likewise presented documentary evidence consisting of newspaper accounts of the incident and various photographs taken during the mauling. The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added "Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to disperse them. The loyalists scampered away but some of them fought back and threw stones at the police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1 At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos, jogging around the fountain. They approached her and informed her of their dispersal and Annie Ferrer angrily ordered them. "Gulpihin ang mga Cory hecklers!" Then she continued

jogging around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti tayo ngayon!" A commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a yellow tshirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedos aid. Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which Sumilang showed to Salcedos attackers. They backed off a while and Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7 Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal Monument but accused Joel Tan Nilo Pacadar pursued him, mauling Sumilang in the process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis, pulis. Wala bang pulis?" 9 The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer, brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to the Philippine General Hospital where he died upon arrival. Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions, lacerated wounds and skull fractures as revealed in the following post-mortem findings:jgc:chanrobles.com.ph "Cyanosis, lips, and nailbeds.

Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0. left suprascapular region; 6.0 x 2.8 cm., right elbow. Abrasions: Lacerated 4.0 wounds: x 2.2 2.0 cm., cm., left over elbow; the left 2.0 x eyebrow; 1.5 1.0 cm., cm., right upper knee. lip.

Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital region, right side. Fractures, skull; occipital bone, right side; right posterior subdural, visceral about 1/2 filled with grayish brown organs, food materials and cranial fossa; right anterior cranial fossa.

Hemorrhage, Other Stomach,

extensive. congested. fluid." 10

The mauling of Salcedo was witnessed by bystanders and several press people, both local and foreign. The press took pictures and a video of the event which became front-page news the following day, capturing national and international attention. This prompted President Aquino to order the Capital Regional Command and the Western Police district to investigate the incident. A reward of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief, for persons who could give information leading to the arrest of the killers. 11 Several persons, including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification, several persons, including the accused, were apprehended and investigated. For their defense, the principal accused denied their participation in the mauling of the victim and offered their respective alibis.

Accused Joselito Tamayo testified that he was not in any of the photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the incident. 14 Romeo Sison, a Commercial photographers, was allegedly at his near the Luneta waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a member of the Akoy Pilipino Movement and that he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. the maulers however ignored him. 21 The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in their defense. On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an accomplice. The court, however, found that the prosecution failed to prove the guilt of the other accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and Benjamin Nuega. The dispositive portion of the decision reads as follows:jgc:chanrobles.com.ph "WHEREFORE, judgment is hereby rendered in the aforementioned cases as follows:chanrob1es virtual 1aw library 1. In People versus Raul Billosos and Gerry Nery, Criminal Case No. 86-47322, the Court finds that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 2. In People versus Romeo Sison, Et Al., Criminal Case No. 86-47617, the Court finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum to TWENTY (20) YEARS OF Reclusion Temporal, as Maximum; 3. In People versus Richard de los Santos, Criminal Case No. 86 -47790, the Court finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder defined in Article 248 of the Revised Penal Code and, there being no other extenuating circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and TWENTY(20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal as Maximum; 4. In People versus Joselito Tamayo, Criminal Case No. 86 -48538, the Court finds the Accused guilty beyond reasonable doubt as principal, for the crime of Murder defined in Article 248 of the Revised Penal Code and he reby imposes on him an indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS AND TWENTY (20) DAYS OF Reclusion Temporal, as Minimum, to TWENTY (20) YEARS of Reclusion Temporal, as Maximum; 5. In People versus Rolando Fernandez, Criminal Ca se No. 86-48931, the Court finds that the Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt and hereby acquits him of said charge; 6. In People versus Oliver Lozano, Et Al., Criminal Case No. 86 -49007, the Court finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged and hereby acquits them of said charge; 7. In People versus Annie Ferrer, Criminal Case No. 86 -49008, the Court finds the said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to Article 248 of the revised Penal Code and hereby imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as maximum. The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the costs of suit. The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos and Joselito Tamayo had been under detention during the pendency of these cases shall be credited to them provided that they agreed in writing to abide by and

comply

strictly

with

the

rules

and

regulations

of

the

City

Jail.

The Warden of the City Jail of manila is hereby ordered to release the Accused Gerry Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause or charge. The petition for Bail of the Accused Rolando Fernandez has become moot and academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of merit. The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled." 22

On Appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior strength, but convicted Joselito Tamayo of homicide because the information against him did not allege the said qualifying circumstance. The dispositive portion of the decision reads:jgc:chanrobles.com.ph "PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:chanrob1es virtual 1aw library 1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua; 2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and, as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him; 3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of Murder. CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for review." 24 Petitioner filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us for automatic review of the decision of the Court of Appeals against the four accused-appellants sentenced to reclusion perpetua. Before this Court, Accused-appellants assign the following errors:chanrob1es virtual 1aw library "I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO. II

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS SUMILANG. III

THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE DECEASED. IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED. V

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS AFFRAY."25cralaw:red In their additional brief, appellants contend that:chanrob1es virtual 1aw library "I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, AND NON-SEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE. II

THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED. III

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER. IV

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE INCIDENT." 26 Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable, doubtful and do not deserve any credence. According to them, the testimonies of these two witnesses are suspect because they surfaced only after a reward was announced by General Lim. Renato Banculo even submitted three sworn statements to the police geared at providing a new or improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to reprimand him several times. 28 There is no proof that Banculo or Sumilang testified because of the reward announced by General Lim, much less that both or either of them ever received such reward from the government. On the contrary, the evidence shows that Sumilang reported the incident to the police and submitted his sworn statement immediately two hours after the mauling, even before announcement of any reward. 29 He informed the police that he cooperate with them and identify Salcedos assailants if he saw them again. 30 The fact that Banculo executed three sworn statements does not make them and his testimony incredible. The sworn statements were made to identify more suspects who were apprehended during the investigation of Salcedos death. 31 The records show that Sumilang was admonished several times by the trial court on the witness stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilangs testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony was correctly given credence by the trial court despite his evasiveness at some instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a witness testimony.

Banculos mistake in identifying another person as one of the accused does not make him an entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect senses. In the courts discretion, therefore, the testimony of a witness can b e believed as to some facts but disbelieved with respect to the others. 34 We sustain the appellate and trial courts findings that the witnesses testimonies corroborate each other on all important a nd relevant details of the principal occurrence. Their positive identification of all petitioners jibe with each other and their narration of the events are supported by the medical and documentary evidence on record. Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the victim had various wounds on his body which could have been inflicted by pressure from more than one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in Salcedos skull which may have been caused by contact with a hard and blunt object such as fistblows, kicks and a blunt wooden instrument. 37 Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that Salcedo was pummelled by this assailants with stones in their hands. 38 Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W-13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence operatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on the witness stand. Exhibits "V," to "V-48" are photographs taken of the victim as he was being mauled at the Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for lack of proper identification by the person or persons who took the same. The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by the photographer as to its production and testified as to the circumstances under which they were produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the crime. 50 The photographer, however, is not the only witness who can identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can be proved prima facie, either by the testimony of the person who made it or by other competent witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other competent witness who can testify to its exactness and accuracy. 53 This court notes that when the prosecution offered the photographs as part of its evidence, appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients were not in any of the pictures and therefore could not have participated in the mauling of the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent hearing, the prosecution used the photographs to cross-examine all the accused who took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57 The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the person who took the same was not presented to identify them. We rule that the use of these photographs by some of the accused to show their alleged nonparticipation in the crime is an admission of the exactness and accuracy thereof. That the photographs are faithful representations of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel Tan identified themselves therein and gave reasons for their presence thereat. 58 An analysis of the photographs vis-a-vis the accuseds testimonies reveal that only three of the appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in various belligerent poses lunging or hovering behind or over the victim.

59 Appellant Romeo Sison appears only once and he, although afflicted with hernia, is shown merely running after the victim. 60 Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two appellant in the photographs does not exculpate them. The photographs did not capture the entire sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and Banculo. 61 Appellants denials and alibis cannot overcome their eyeball identification. Appellants claim that the lower courts erred in finding the existence of conspiracy among the principal accused ad i convicting them of murder qualified by abuse of superior strength, not death i tumultuous affray. Death i a tumultuous affray is defied i Article 251 of the Revised Peal Code as follows:jgc:chanrobles.com.ph "Art. 251. Death caused i a tumultuous affray. When, while several persons, not composing groups organized for the common purpose of assaulting and attacking each other reciprocally, quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or persons who inflicted serious physical injuries can be identified, such person or persons shall be punished by prision mayor. If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty of prision correccional i its medium and maximum periods shall be imposed upon all those who shall have used violence upon the person of the victim."cralaw virtua1aw library For this article to apply, it must be established that:(1) there be several persons; (2) that they did not compose groups organized for the common purpose of assaulting and attacking each other reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained who actually killed the deceased; and (6) that the person or persons who inflicted serious physical injuries or who used violence can be identified. 62 A tumultuous affray takes place when a quarrel occurs between several persons and they engage in a confused and tumultuous affray, in the course of which some person is killed or wounded and the author thereof cannot be ascertained. 63 The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one individual. Confusion may have occurred because of the police dispersal of the rallyists, but this confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later after said dispersal that one distinct group identified as loyalists picked on one defenseless individual and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of the incident. 64 As the lower courts found, the victims assailants were numerous by as much as fifty in number 65 and were armed with stones with which they hit the victim. They took advantage of their superior strength and excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when he was already fallen on the ground. There was a time Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored his pleas until he finally lost unconsciousness. The deliberate and prolonged use of superior strength on a defenseless victim qualifies the killing to murder. Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants safety from any defense the victim could have made. True, the attack on Salcedo was sudden and unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run away from them but he, unfortunately, was overtaken by them. The essence of treachery is the sudden and unexpected attack without the slightest provocation on the part of the person being attacked. 66 The qualifying circumstances of evident premeditation was alleged in the information against Joselito Tamayo. Evident premeditation cannot be appreciated in this case because the attack against Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called "Coryistas." It was not precede by cool thought and reflection. We find however the existence of a conspiracy among appellants. At the time they were committing the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among the conspirators inflicted the fatal wound is not required to sustain a

conviction. 67 Each of the conspirators is liable for all acts of the others regardless of the intent and character of their participation, because the act of one is the act of all. 68 The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986, Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi Arabia. 69 The reckless disregard for such a young persons life and the anguish wrought on his widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71 IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:chanrob1es virtual 1aw library 1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and are each hereby sentenced to suffer the penalty of reclusion perpetua; 2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of Homicide with the generic aggravating circumstances of abuse of superior strength and, as a consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision mayor as minimum to TWENTY (20) YEARS of reclusion temporal as maximum; 3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen Salcedo the following amounts:chanrob1es virtual 1aw library (a) (b) (c) 4. SO ORDERED. P74,000.00 P100,000.00 P50,000.00 as as indemnity Costs for as moral the death actual damages; of the damages; and victim.

against Accused-Appellants.

[G.R.

No.

L-40804.

January

31,

1978.]

ROSARIO FELICIANO VDA. DE RAMOS, MIGUEL DANILA, RAYMUNDO A. DANILA, CONSOLACION SANTOS, MIGUEL G. DANILA, AMOR DANILA, MOISES MARTINEZ, MIGUELA GAVINO, MELITON NISTA, PRIMITIVA NISTA, HEIRS OF DANIEL NISTA, MOISES NISTA,

DOMINGO NISTA and ADELAIDA NISTA, Petitioners, v. COURT OF APPEALS, MARCELINA (MARTINA) GUERRA and THE HEIRS OF BUENAVENTURA GUERRA, Respondents. Ernesto Romulo SYNOPSIS In the probate of a will and a codicil, two of the attesting witnesses testified that they did not see the testatrix sign the will and that the same was already signed by her when they affixed their own signatures. On the other hand, the Notary Public who assisted in the execution of the will testified that the testatrix and the three instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil the same manner was observed as corroborated to by another lawyer who was also present in the execution of the codicil. The trial court gave more weight and merit to the testimony of the Notary Public than to that of the attesting witnesses, and allowed the probate of the will. The Court of Appeals reversed the trial court. On appeal, the Supreme Court reversed the Court of Appeals and restored the decision of the trial court allowing the probate of the will and the codicil in question. S. Brion C. & Florentino M. Hidalgo, Poonin for Private for Petitioners. Respondents.

SYLLABUS

1. WILLS; EXECUTION OF; PURPOSE OF FORMALITIES. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is to close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. 2. ID.; ID.; PRESUMPTION OF REGULARITY IN THE EXECUTION OF THE WILL. If there should be any stress on the participation of lawyers in the execution of a will, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. Where there is no showing that the lawyers had been remiss in their own duty, where no incidents were brought to the attention of the court to arouse suspicion of anomaly nor evidence presented to prove their occurrence, where each and every page of the will carry the authentic signatures of the testator and the attesting witnesses, and where the instrument was duly acknowledged before the Notary Public who was all the time present during the execution, the presumption of regularity in the execution of the will must prevail. 3. ID.; ID.; ATTESTATION CLAUSE IS A RECORD OF FACTS SURROUNDING CONDUCT OF EXECUTION. Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause, which is a separate memorandum or record of the facts surrounding the conduct of execution. Once signed by the attesting witnesses, it affirms that compliance with the indispensable legal formalities had been observed. The attestation clause basically contradicts the pretense of undue execution which latter on may be made by the attesting witnesses. In the attestation clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signatures following that of the testatrix show that they have in fact attested not only to the genuineness of the testatrixs signature but also to the due execution of the will as embodied in the attesta tion clause. By signing the will, the witnesses impliedly certified to the truth of the facts which admit to probate, including the sufficiency of the execution, the capacity of the testatrix, the absence of undue influence, and the like. 4. ID.; ID.; DEROGATORY DECLARATION OF ATTESTING WITNESSES MAY BE OVERCOME BY COMPETENT EVIDENCE. All attesting witnesses to a will, if available, must be called to prove the will. Under this circumstance, they become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent, hence, the latter may present other proof of due execution even if contrary to the testimony of some or all of the attesting witnesses, and the court may allow the probate of the will if it is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. Accordingly, although the subscribing witnesses to a contested will are the best witnesses in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased, if otherwise, it may be overcome by any competent evidence, direct or circumstantial. 4. TESTIMONY OF NOTARY PUBLIC DESERVES GRAVE CONSIDERATION. The function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the interpretation of a Notary Public, in his professional capacity in the execution of a will deserves grave consideration. Thus, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the

testimony of a person casually called to participate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory. 5. ID.; ID.; EVIDENCE; PICTURES ARE WORTHY ONLY OF WHAT THEY SHOW. The fact that the only pictures available are those which show the witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. Pictures are worthy only of what they show and prove and not of what they do not speak of including the events they failed to capture. 6. ID.; ID.; PROBATE OF WILL IS SPECIAL PROCEEDINGS. Probate of a will is a special proceeding not imbued with adversary character, wherein courts should relax the rules of evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a purported will may be probated or denied probate.

DECISION

GUERRERO, J.:

Appeal by way of certiorari of the decision 1 of the Court Appeals in CA-G.R. No. 49915-R, entitled "Adelaida Nista, PetitionerAppellee, versus Buenaventura Guerra, Et Al., Oppositors-Appellants," denying and disallowing the probate of the second last will and codicil of the late Eugenia Danila previously declared probated by the Court of First Instance of Laguna, Branch III at San Pablo City. The facts are stated in the appealed decision, the pertinent portions of which state:jgc:chanrobles.com.ph

"It appears that on June 2, 1966, Adelaida Nista, who claimed to be one of the instituted heirs, filed a petition for the probate of the alleged will and testament dated March 9, 1963 (Exhibit H) and codicil dated April 18, 1963 (Exhibit L) of the late Eugenia Danila who died on May 21, 1966. The petitioner prayed that after due notice and proper hearing, the alleged will and codicil be probated and allowed and that she or any other person be appointed as administrator of the testatrixs estate. She also praye d that in case no opposition thereto be interposed and the value of the estate be less than P10,000.00, said estate be summarily settled in accordance with the Rules. "Buenaventura and Marcelina (Martina) both surnamed Guerra, filed an opposition on July 18, 1966 and an amended opposition on August 19, 1967, to the petition alleging among others that they are the legally adopted son and daughter of the late spouses Florentino Guerra and Eugenia Danila (Exhibit 1); that the purported will and codicil subject of the petition (Exhibits H and L) were procured through fraud and undue influence; that the formalities required by law for the execution of a will and codicil have not been complied with as the same were not properly attested to or executed and not expressing the free will and deed of the purported testatrix; that the late Eugenia Danila had already executed on November 5, 1951, her last will and testament (Exhibit 3) which was duly probated (Exhibit 4) and not revoked or annulled during the lifetime of the testatrix, and that the petitioner is not competent and qualified to act as administratrix of the estate. "On November 4, 1968, the petitioner and the oppositors, assisted by their respective counsels, entered into a Compromise Agreement with the following terms and conditions, thus:chanrob1es virtual 1aw library 1. That oppositors Buenaventura Guerra and Marcelina (Martina) Guerra are the legally adopted son and daughter, respectively, of the deceased spouses, Florentino Guerra and Eugenia Danila; 2. That Florentino Guerra pre-deceased Eugenia Danila; that Eugenia Danila died on May 21, 1966, at San Pablo City but during her lifetime, she had already sold, donated or disposed of all her properties, some of which to Marcelina (Martina) Guerra, as indicated and confirmed in paragraph 13 of the Complaint in Civil Case No. SP-620, entitled Marcelina Guerra versus Adelaida Nista, Et Al., and which we hereby likewise admit and confirm; 3. That, however, with respect to the parcel of riceland covered by TCT No. T -5559 of the Register of Deeds of San Pablo City, which oppositors believe to be the estate left and undisposed of at the time of the death of the owner thereof, Eugenia Danila, it now appears that there is a Deed of Donation covering the same together with another parcel of coconut land situated at Barrio San Ignacio, San Pablo City. with an area of 19,905 sq. m., and covered by Tax Declaration No. 31286, executed by the late Eugenia Danila in favor of Adelaida Nista, as per Doc. No. 406, Page No. 83, Series of 1966 under Notarial Register III of Notary Public Pio

Aquino

of

San

Pablo

City;

4. That inasmuch as the above-mentioned parcel of coconut land has been earlier donated inter vivos and validly conveyed on November 15, 1965 by the late Eugenia Danila to Marcelina (Martina) Guerra as shown by Doc. No. 237, Page No. 49, Series of 1965, under Notarial Register XV of Notary Public Atty. Romulo S. Brion of San Pablo City, the inclusion of said parcel in the subsequent donation to Adelaida Nista is admittedly considered a mistake and of no force and effect and will in no way prejudice the ownership and right of Marcelina (Martina) Guerra over the said parcel; that as a matter of fact, whatever rights and interests Adelaida Nista has or may still have thereon are already considered waived and renounced in favor of Marcelina (Martina) Guerra; 5. That in view of the fact that the riceland mentioned in paragraph 3 of the foregoing appears to have already been dispose d of by Eugenia Danila in favor of petitioner Adelaida Nista, which the parties hereto do not now contest, there is therefore no more estate left by the said deceased Eugenia Danila to be disposed of by the will sought to be probated in this proceedings; that consequently, and for the sake of peace and harmony among the relations and kins and adopted children of the deceased Eugenia Danila, and with the further aim of settling differences among themselves, the will and codicil of Eugenia Danila submitted to this Honorable Court by the petitioner for probate, are considered abrogated and set aside; 6. That as the late Eugenia Danila has incurred debts to private persons during her lifetime, which in addition to the burial and incidental expenses amounts to SIX THOUSAND EIGHT HUNDRED PESOS (P6,800.00) her adopted daughter, Marcelina (Martina) Guerra is now determined to settle the same, but herein petitioner Adelaida Nista hereby agrees to contribute to Marcelina (Martina) Guerra for the settlement of the said indebtedness in the amount of THREE THOUSAND FOUR HUNDRED PESOS (P3,400.00), Philippine Currency, the same to be delivered by Adelaida Nista to Marcelina (Martina) Guerra at the latters residence at Rizal Avenue, San Pablo City, on or about February 28, 1969; 7. That should there be any other property of the deceased Eugenia Danila, that may later on be discovered to be und isposed of as yet by Eugenia Danila during her lifetime, the same should be considered as exclusive property of her adopted children and heir Buenaventura Guerra and Marcelina (Martina) Guerra, and any right of the petitioner and signatories hereto, with respect to said property or properties, shall be deemed waived and renounced in favor of said Buenaventura and Marcelina (Martina) Guerra; and 8. That with the exception of the foregoing agreement, parties hereto waived and renounce further claim against each other, and the above entitled case." (Exh. 6) "This Agreement was approved by the lower court in a judgment reading as follows:jgc:chanrobles.com.ph "WHEREFORE, said compromise agreement, being not contrary to public policy, law and moral, the same is hereby approved and judgment is hereby rendered in accordance with the terms and conditions set forth in the above-quoted compromise agreement which is hereby made an integral part of the dispositive portion of this decision, and the parties are strictly enjoined to comply with the same. (Exh. 7) "On November 16, 1968, Rosario de Ramos, Miguel Danila, Felix Danila, Miguel Gavino, Amor Danila, Consolacion Santos and Miguel Danila, son of the late Fortunato Danila, filed a motion for leave to intervene as co-petitioners alleging that being instituted heirs or devisees, they have rights and interests to protect in the estate of the late Eugenia Danila. They also filed a reply partly admitting and denying the material allegations in the opposition to the petition and alleging among other things, that oppositors repudiated their institution as heirs and executors when they failed to cause the recording in the Register of Deeds of San Pablo City the will and testament dated November 5, 1951 (Exhibit 3) in accordance with the Rules and committed acts of ingratitude when they abandoned the testatrix and denied her support after they managed, through fraud and undue influence, to secure the schedule of partition dated January 15, 1962. The Intervenors prayed for the probate and/or allowance of the will and codicil (Exhibits H and L), respectively and the appointment of any of them as administrator of said estate. "On December 6, 1968, the intervenors also filed a motion for new trial and/or re-hearing and/or relief from judgment and to set aside the judgment based on compromise dated November 5, 1968. The oppositors interposed an opposition to the motion to which the intervenors filed their reply. "The lower court resolved the motions in an order the dispositive portion reading, thus:chanrob1es virtual 1aw library FOR ALL THE FOREGOING, the Court hereby makes the following dispositions

(1) Movants Rosario de Ramos, Miguel G. Danila, Miguela Gavino, Amor Danila, Consolacion Santos, Miguel A. Danila and Raymundo Danila are allowed and admitted to intervene to this proceeding as Party Petitioners; and likewise admitted in their

reply

to

the

amended

opposition

of

November

11,

1968;

(2) The compromise agreement dated October 15, 1968 by and between Petitioner Adelaida Nista and oppositors Buenaventura Guerra and Marcelina Guerra (Martina), is disapproved, except as regards their respective lawful rights in the subject estate; and, accordingly, the judgment on compromise rendered by this Court on November 5, 1968 is reconsidered and set aside; and (3) The original Petition and amended opposition to probate of the alleged will and codicil stand. x x x

"The lower court also denied the motion for the appointment of a special administrator filed by the intervenors. x x x

"A motion for reconsideration of the foregoing order was filed by the intervenors co-petitioners but the motion was denied. x x x

"On February 9, 1971, a motion for the substitution of Irene, Crispina, Cristino, Casiano, Eriberto, Felisa, Guerra in place of their father, the oppositor Buenaventura Guerra who died on January 23, 1971, was filed and granted by the lower court."cralaw virtua1aw library After trial on the merits, the lower court rendered its decision dated July 6, 1971 allowing the probate of the will. In that decision, although two of the attesting witnesses, Odon Sarmiento and Rosendo Paz, testified that they did not see the testatrix Eugenia Danila sign the will but that the same was already signed by her when they affixed their own signatures thereon, the trial court gave more weight and merit to the "straight-forward and candid" testimony of Atty. Ricardo Barcenas, the Notary Public who assisted in the execution of the will, affirming that the testatrix and the three (3) instrumental witnesses signed the will in the presence of each other, and that with respect to the codicil, the same manner was likewise observed as corroborated to by the testimony of another lawyer, Atty. Manuel Alvero who was also present during the execution of the codicil.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph The dispositive portion of the decision reads:jgc:chanrobles.com.ph

"WHEREFORE, it appearing that the late Eugenia Danila had testamentary capacity when she executed the will, Exh. H., and the codicil, Exh. L, and that said will and codicil were duly signed by her and the three attesting witnesses and acknowledged before a Notary Public in accordance with the formalities prescribed by law, the said will and codicil are hereby declared probated. No evidence having been adduced regarding the qualification and fitness of any of the intervenors-co-petitioners to act as executors, the appointment of executors of the will and codicil is held pending until after due hearing on the matter. SO ORDERED"

Oppositors Marcelina Guerra and the heirs of Buenaventura Guerra appealed the foregoing decision to the Court of Appeals. The latter court, in its decision dated May 12, 1975 ruled that the lower court acted correctly in setting aside its judgment approving the Compromise Agreement and in allowing the intervenors-co-petitioners to participate in the instant probate proceedings; however, it disallowed the probate of the will on the ground that the evidence failed to establish that the testatrix Eugenia Danila signed her will in the presence of the instrumental witnesses in accordance with Article 805 of the Civil Code, as testified to by the two surviving instrumental witnesses. In this present appeal, petitioners vigorously insists on constitutional grounds the nullity of the decision of respondent court but We deem it needless to consider the same as it is not necessary in resolving this appeal on the following assigned errors:chanrob1es virtual 1aw library (A) THE COURT OF APPEALS ERRED GRAVELY IN NOT HAVING GIVEN WEIGHT TO THE ATTESTATION THE TESTAMENT AND CODICIL, ANNEX B (PETITION AND INSTEAD IT GAVE CREDENCE TO THE TESTIMONIES OR BIASED WITNESSES OVER THEIR OWN ATTESTATION CLAUSES AND THE TESTIMONIAL EVIDENCE AND NOTARIAL ACKNOWLEDGMENT OF THE NOTARY PUBLIC; AND

(B) THAT THE COURT OF APPEALS ERRED IN HAVING DENIED THE PROBATE OF THE WILL AND CODICIL DESPITE CONVINCING EVIDENCE FOR THEIR ALLOWANCE. We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. We reverse the judgment of the Court of Appeals and restore the decision of the trial court allowing probate of the will and codicil in question. The main point in controversy here is whether or not the last testament and its accompanying codicil were executed in accordance with the formalities of the law, considering the complicated circumstances that two of the attesting witnesses testified against their due execution while other non-subscribing witnesses testified to the contrary. Petitioners argue that the attestation clauses of the will and codicil which were signed by the instrumental witnesses are admissions of due execution of the deeds, thus, preventing the said witnesses from prevaricating later on by testifying against due execution. Petitioners further maintain that it is error for respondent court to give credence to the testimony of the biased witnesses as against their own attestation to the fact of due execution and over the testimonial account of the Notary Public who was also present during the execution and before whom, right after, the deeds were acknowledged.chanrobles virtual lawlibrary Private respondents, on the other hand, reiterate in their contention the declaration of the two surviving witnesses Odon Sarmiento and Rosendo Paz, that the will was not signed by the testatrix before their presence, which is strengthened by two photographic evidence showing only the two witnesses in the act of signing, there being no picture of the same occasion showing the testatrix signing the will. Respondent court holds the view that where there was an opportunity to take pictures, it is not understandable why pictures were taken of the witnesses and not of the testatrix. It concludes that the absence of the latters picture to complete the evidence belies the testimony of Atty. Barcenas that the testatrix and the witnesses did sign the will and the codicil in the presence of each other. The oppositors argument is untenable. There is ample and satisfactory evidence to convince Us that the will and codicil were executed in accordance with the formalities require law. It appears positively and convincingly that documents were prepared by a lawyer, Atty. Manuel Alvero. The execution of the same was evidently supervised by his associate, Atty. Ricardo Barcenas and before whom the deeds were also acknowledged. The solemnity surrounding the execution of a will is attended by some intricacies not usually within the comprehension of an ordinary layman. The object is close the door against bad faith and fraud, to avoid substitution of the will and testament, and to guarantee their truth and authenticity. 2 If there should be any stress on the participation of lawyers in the execution of a will, other than an interested party, it cannot be less than the exercise of their primary duty as members of the Bar to uphold the lofty purpose of the law. There is no showing that the above-named lawyers had been remiss in their sworn duty. Consequently, respondent court failed to consider the presumption of regularity in the execution of the questioned documents. There were no incidents brought to the attention of the trial court to arouse suspicion of anomaly. while the opposition alleged fraud and undue influence, no evidence was presented to prove their occurrence. There is no question that each and every page of the will and codicil carry the authentic signatures of Eugenia Danila and the three (3) attesting witnesses. Similarly, the attestation clauses, far from being deficient, were properly signed by the attesting witnesses. Neither is it disputed that these witnesses took turns in signing the will and codicil in the presence of each other and the testatrix. Both instruments were duly acknowledged before a Notary Public who was all the time present during the execution. The presumption of regularity can of course be overcome by clear and convincing evidence to the contrary, but not easily by the mere expediency of the negative testimony of Odon Sarmiento and Rosendo Paz that they did not see the testatrix sigh the will. A negative testimony does not enjoy equal standing with a positive assertion, and faced with the convincing appearance of the will, such negative statement must be examined with extra care. For in this regard "It has also been held that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in the light of surrounding circumstances, may help in determining whether it is genuine or forged. Subscribing witnesses may forget or exaggerate what they really know, saw, heard or did; they may be biased and, therefore, tell only halftruths to mislead the court or favor one party to the prejudice of the others. This cannot be said of the condition and physical appearance of the questioned document. Both, albeit silent, will reveal the naked truth, hiding nothing, forgetting nothing, and exaggerating nothing." 3 Unlike other deeds, ordinary wills by necessity of law must contain an attestation clause which, significantly, is a separate memorandum or record of the facts surrounding the conduct of execution. Once signed by the attesting witnesses, it affirms that compliance with the indispensable legal formalities had been observed. This Court had previously held that the attestation clause basically contradicts the pretense of undue execution which later on may be made by the attesting witnesses. 4 In the attestation

clause, the witnesses do not merely attest to the signature of the testatrix but also to the proper execution of the will, and their signatures following that of the testatrix show that they have in fact attested not only to the genuineness of the testatrix s signature but also to the due execution of the will as embodied in the attestation clause. 5 By signing the will, the witnesses impliedly certified to the truth of the facts which admit to probate, including the sufficiency of execution, the capacity of the testatrix, the absence of undue influence, and the like. 6 In this jurisdiction, all the attesting witnesses to a will, if available, must be called to prove the will. Under this circumstance, they become "forced witnesses" and their declaration derogatory to the probate of the will need not bind the proponent, hence, the latter may present other proof of due execution even if contrary to the testimony of some or all of the attesting witnesses. 7 As a rule, if any or all of the subscribing witnesses testify against the due execution of the will, or do not remember having attested to it, or are otherwise of doubtful credibility, the will may, nevertheless, be allowed if the court is satisfied from the testimony of other witnesses and from all the evidence presented that the will was executed and attested in the manner required by law. 8 Accordingly, although the subscribing witnesses to a contested will are the best witnesses in connection with its due execution, to deserve full credit, their testimony must be reasonable, and unbiased; if otherwise, it may be overcome by any competent evidence, direct or circumstantial. 9 In the case at bar, the records bear a disparity in the quality of the testimonies of Odon Sarmiento and Rosendo Paz on one hand, and the Notary Public, Atty. Ricardo A. Barcenas, on the other. The testimony of Odon Sarmiento was contradicted by his own admission. Though his admission to the effect that "when Eugenia Danila signed the testament (he) and the two other attesting witnesses Rosendo Paz and Calixto Azusada were present" (t.s.n., Feb. 12, 1970, p. 115) was made extrajudicially, it was not squarely refuted when inquired upon during the trial.chanrobles.com : virtual law library With respect to the testimony of Rosendo Paz, it had been refuted by the declaration of Atty. Ricardo A. Barcenas. The records show that this attesting witness was fetched by Felix Danila from his place of work in order to act as witness to a will. Rosendo Paz did not know what the document he signed was all about. Although he performed his function as an attesting witness, his participation was rather passive. We do not expect, therefore, that his testimony, "half-hearted" as that of Odon Sarmiento, be as candid and complete as one proceeding from a keen mind fully attentive to the details of the execution of the deeds. Quite differently, Atty. Ricardo A. Barcenas. more than a direct witness himself, was purposely there to oversee the accomplishment of the will and codicil. His testimony is an account of what he actually heard and saw during the conduct of his profession. There is no evidence to show that this lawyer was motivated by any material interest to take sides or that his statement is truth perverted. It has been regarded that the function of the Notary Public is, among others, to guard against any illegal or immoral arrangements in the execution of a will. 10 In the absence of any showing of self-interest that might possibly have warped his judgment and twisted his declaration, the intervention of a Notary Public, in his professional capacity, in the execution of a will deserves grave consideration. 11 An appraisal of a lawyers participation has been succinctly stated by the Court in Fernandez v. Tantoco, s upra, this wise:jgc:chanrobles.com.ph "In weighing the testimony of the attesting witnesses to a will, the statements of a competent attorney, who has been charged with the responsibility of seeing to the proper execution of the instrument, is entitled to greater weight than the testimony of a person casually called to participate in the act, supposing of course that no motive is revealed that should induce the attorney to prevaricate. The reason is that the mind of the attorney being conversant of the instrument, is more likely to become fixed on details, and he is more likely than other persons to retain those incidents in his memory."cralaw virtua1aw library One final point, the absence of a photograph of the testatrix, Eugenia Danila in the act of signing her will. The fact that the only pictures available are those which show the witnesses signing the will in the presence of the testatrix and of each other does not belie the probability that the testatrix also signed the will before the presence of the witnesses. We must stress that the pictures are worthy only of what they show and prove and not of what they did not speak of including the events they failed to capture. The probate of a will is a special proceeding not embued with adversary character, wherein courts should relax the rules on evidence "to the end that nothing less than the best evidence of which the matter is susceptible" should be presented to the court before a purported will may be probated or denied probate. 12 We find here that the failure to imprint in photographs all the stages in the execution of the will does not serve any persuasive effect nor have any evidentiary value to prove that one vital and indispensable requisite has not been acted on. Much less can it defeat, by any ordinary or special reason, the presentation of other competent evidence intended to confirm a fact otherwise existent but not confirmed by the photographic evidence. The probate court having satisfied itself that the will and codicil were executed in accordance with the formalities required by law, and there being no indication of abuse of discretion on its part, We find no error committed or any exceptional circumstance warranting the subsequent reversal of its decision allowing the probate of the deeds in question.

WHEREFORE, the decision of respondent Court of Appeal is hereby in so far as it disallowed the probate of the will and codicil. With costs against respondents. SO Teehankee, Makasiar, Muoz Palma and Fernandez, JJ., concur. ORDERED.

[G.R.

No.

106099.

July

8,

1997.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. AGUSTIN SOTTO, RADEL MONTECILLO and ALEX MONTECILLO, Accused, AGUSTIN SOTTO, Accused-Appellant. The Public SYNOPSIS The victim, Nida Sultones, and her eleven-year old brother, Maximo Monilar, Jr., were walking towards the poblacion of Sogod, Cebu at around 5:30 a.m. on May 2, 1989 where they planned to buy goods for Nidas store. While at some distance from the town proper, they saw Radel Montecillo along the road. Radel followed them. When they reached Sitio Suwangan at Ibabao, Sogod, Radel suddenly grabbed Nida and proceeded to strangle her. He also took her wristwatch and the money in her pocket. Meanwhile, Alex Montecillo came out from behind a pile of firewood lying along the road and tried to help his brother, Radel, in subduing Nida. The youthful Maximo came to the aid of his elder sister by hitting Radel with the plastic container he was carrying. Thereafter a man with a piece of black cloth over his face and holding a handgun appeared from nowhere. Maximo ran away but was shot on the head by the masked man, as a result of which he died. Radel poked a knife on her neck while Alex pointed a gun at her. Alex did not shoot Nida after she promised to them that she would not tell the police. Before the two assailants left Nida, they threatened to kill her and her family if she would not keep her promise. A .30 caliber revolver was subsequently found in appellants house after a search was made therein. Appellant, together with accused Radel Montecillo and Alex Montecillo, were charged with the crime of highway robbery with homicide. Appellant denied any involvement in the crime, claiming that he was at his house tending his store when the crime was committed. The appellant and the Montecillo brothers were convicted of the crime of robbery with homicide and sentenced to suffer the penalty of reclusion perpetua. Only appellant Agustin Sotto appealed. He faults the court a quo for concluding that he participated in the commission of the crime based on unreliable, unacceptable and incredible evidence presented before it. The Supreme Court held that direct and circumstantial evidence presented by the prosecution, together with the testimony of appellants co-accused, Radel Montecillo, point and lead to appellants complicity in the commission of the crime. Appellant was positively identified by the victim as the member of the group of robbers who shot her brother since only his face was covered by a piece of cloth. There can be no mistake in her identification as it was no longer dark when the crime was committed at around six oclock in the morning, she knew appellant very well, appellants wife is a relative of the victim. Appellant has not sho wn any improper motive on the part of the victim. Between the self-serving testimony of appellant and the positive identification by the eyewitnesses, the latter deserves greater credence. Solicitor Attorneys General Office for Plaintiff-Appellee. for Accused-Appellant.

Since appellant acquiesced to the search on his house, the .38 caliber revolver is admissible in evidence against him. His bare assertion that he objected to the warrantless search is a feeble afterthought to exculpate him. When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof. The right to be secure from unreasonable search may be waived either expressly or impliedly. Judgment affirmed.

SYLLABUS

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; THE FACT THAT PROSECUTION WITNESSES HAVE NO POSSIBLE MOTIVE TO MAKE FALSE IMPUTATIONS AGAINST THE ACCUSED SHOWS THAT THEIR IDENTIFICATION OF THE LATTER IS CREDIBLE. Appellant was not able to show any improper motive on the part of Nida to falsely incriminate him in such a serious offense. On the contrary, he and Nida were on cordial speaking terms before the commission of the robbery. The fact that prosecution witnesses have no possible motive to make false imputations against the accused shows that their identification of the latter is credible. Nidas identification of appellant as the killer of her brother can only be explained by an offended partys honest desire to have the real culprit, and not just anybody, apprehended and punished to give justice to the victim. 2. ID.; ID.; ID.; THE MAXIM FALSUS IN UNO, FALSUS IN OMNIBUS NO LONGER WARRANTS A RIGID APPLICATION IN OUR LEGAL SETTING; UNDER MODERN JURISPRUDENCE, THE TESTIMONY OF A WITNESS MAY BE BELIEVED IN PART, DEPENDING UPON CORROBORATED EVIDENCE AND THE PROBABILITIES AND IMPROBABILITIES OF THE CASE. We find nothing irregular on the part of the lower court when it disregarded Radels profession of innocence while giving credence to his statement that it was appellant who shot the boy. Even where a witness has been found to have deliberately falsified the truth in some particulars, it is not required that the whole of his testimony be rejected. As we have held, the maxim falsus in uno, falsus in omnibus is not a positive rule of law, is not an inflexible one of universal application, and no longer warrants a rigid application our legal setting. Under modern jurisprudence, the testimony of a witness may be believed in part, depending upon the corroborative evidence and the probabilities and improbabilities of the case. It was thus within the sound and judicious discretion of the trial court to accept portions of the testimony of a witness as it may deem credible and reject those which it believes to be false. 3. ID.; ID.; ID.; THE PRESENCE OF PERSONAL MOTIVES ON THE PART OF THE WITNESSES TO TESTIFY IN FAVOR OF THE VICTIM OR AGAINST THE ACCUSED SHOULD BE SUPPORTED BY SATISFACTORY PROOF IN ORDER THAT THE CREDIBILITY OF SAID WITNESSES WILL BE IMPEACHED. There is nothing in the records to show that Radel Montecillo was holding a grudge against appellant for his dismissal. The presence of personal motives on the part of witnesses to testify in favor of the victim or against the accused should be supported by satisfactory proof in order that the credibility of said witnesses will be impeached. Lacking in this necessary proof, it can be presumed that Radel was not maliciously actuated at least when he identified appellant, and his testimony as to the identify of the boys assassin can be given weight and credit. 4. ID.; ID.; ID.; BETWEEN THE SELF-SERVING TESTIMONY OR APPELLANT AND THE POSITIVE IDENTIFICATION BY THE EYEWITNESSES, THE LATTER DESERVES GREATER CREDENCE. The empty and uncorroborated denials of appellant are not sufficient to overcome the evidence proving him guilty. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters. Between the self-serving testimony of appellant and the positive identification by the eyewitnesses, the latter deserves greater credence. 5. ID.; ID.; DISPUTABLE PRESUMPTIONS; THAT A PERSON FOUND IN POSSESSION OF A THING TAKEN IN THE DOING OF A RECENT WRONGFUL ACT IS THE TAKER AND THE DOER OF THE WHOLE ACT; APPLICABLE IN CASE AT BAR. The discovery by Comaingking of the watch when appellant tried to get rid of it definitely clinched appellants association with the crime. Without any su fficient or plausible explanation as to how he had come into the possession of the Cornovin wristwatch, appellant cannot escape the operation of the presumption of his culpability in the offense pursuant to Section 3, Rule 131 of the Rules of Court. 6. ID.; ID.; ADMISSIBILITY; WHEN THE ACCUSED HIMSELF WAIVES HIS RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURE, THE EXCLUSIONARY RULE PROVIDED IN THE BILL OF RIGHTS OF OUR CONSTITUTION FINDS NO APPLICATION. It is accepted dictum that when the accused himself waives his right against unreasonable searches and seizure, the exclusionary rule provided in the Bill of Rights of our Constitution finds no application. When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof. The right to be secure from unreasonable search may be waived either expressly or impliedly. Since appellant acquiesced to the search, the .38 caliber revolver is admissible in evidence against him. Appellants bare assertion that he objected to the warrantless search is a feeble afterthought to exculpate himself after realizing the damaging consequence of his approval. Furthermore, the testimony of Barangay Captain Bregente reinforces

the presumption of regularity enjoyed by law enforces with regard to the consented search, a presumption which appellant dismally failed to overcome.

DECISION

REGALADO, J.:

Accused-appellant Agustin Sotto, together with accused Radel Montecillo and Alex Montecillo, were charged with the so-called crime of highway robbery with homicide before Branch 15 of the Regional Trial Court of Cebu City in Criminal Case No. CBU-15792, in an indictment which alleges That on or about the 2nd day of May, 1989, at around 6:30 oclock in the morning, more or less, along the road at Sitio Suwan gan, Barangay Ibabao, Municipality of Sogod, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above name accused, conspiring, confederating and mutually helping one another, with intent to gain, by means of violence against and intimidation upon persons, with abuse of superior strength, and armed with a paltik. 38 caliber revolver and a knife, did then and there willfully, unlawfully and feloniously take, steal and carry away cash in the amount of ONE THOUSAND NINE HUNDRED PESOS (P1,900.00), Philippine Currency, and one (1) "Cornavin" Wristwatch worth TWO HUNDRED PESOS (P200.00), Philippine Currency, belonging to NIDA M. SULTONES, to the damage and prejudice of the owner in the amount aforestated; that by reason or on occasion of said robbery and for the apparent purpose of enabling the said accused to take, steal and carry away the above-mentioned amount and article, herein accused, in pursuance of their intention to rob and to gain, using said homemade paltik revolver, caliber .38, with intent to kill, did then and there treacherously attack, assault and shoot Maximo Monilar, Jr., a 12 year old brother and companion of Nida M. Sultones, thereby inflicting upon him mortal wounds on the vital part of his body which caused his death shortly thereafter. 1 The three accused, duly assisted by their counsel, all entered pleas of not guilty during their arraignment on August 3, 1989. 2 After trial, the court a quo 3 found appellant and the Montecillo brothers guilty beyond reasonable doubt of the felony of robbery with homicide defined under paragraph 1, Article 294 of the Revised Penal Code. They were sentenced to suffer the penalty ofreclusion perpetua and to solidarily indemnify the heirs of Maximo Monilar, Jr. in the amount of P50,000.00, in addition to paying Nida Sultones P700.00 representing the value of the unrecovered cash forcibly taken from her. Radel and Alex Montecillo accepted their fate under the verdict of the lower court, while herein appellant refused to acknowledge his guilt and filed a notice of appeal with the trial court, 4 eventuating in the appellate proceeding now before us. In the court below, the prosecution presented the surviving victim of the special complex crime, Nida Sultones, 5 to testify on the facts surrounding the taking of her personal properties and the killing of Maximo Monilar, Jr. According to Nida, she and her said eleven year-old brother, Maximo, were walking towards the poblacion of Sogod, Cebu at around 5:30 A.M. on May 2, 1989. They planned to buy goods in the town for Nidas store in Pansoy, Sogod, Cebu. While at still some distance from the town proper, they saw Radel Montecillo exercising and jumping along the road of Sitio Magtakop, Ibabao, Sogod. Upon seeing the siblings, Radel followed them and asked if they were going to the market. When they reached Sitio Suwangan of Ibabao, Radel suddenly grabbed Nida and proceeded to strangle her. While Nida was struggling on the ground against her attacker, Radel took her wristwatch and the money in her pocket in the sum of P1,900.00. Meanwhile, Alex Montecillo came out from behind a pile of firewood lying along the road and tried to help his brother, Radel, in subduing Nida. On the other hand, the youthful Maximo gallantly came to the aid of his elder sister by hitting Radel with the plastic container he was carrying. Thereafter, a man with a piece of black cloth over his face and holding a handgun appeared from nowhere. Maximo ran away but was shot by this masked man whom Nida recognized as appellant through the similarity in the assailants and herein appellants physique, height, general appearance and other physical features. Maximo was hit on the head and died as a consequence of his wound. 6 After Maximo fell, the Montecillo brothers dragged Nida to a nearby creek. With Radel poking a knife on her neck. Alex pointed a gun at the helpless victim. Despite the promptings of Radel, Alex did not shoot Nida after she promised to them that she would not tell the police. Before the two assailants left Nida, they threatened to kill her and her family if she would not keep her promise. At the trial, Nida clarified that the guns used by the masked man and Alex were of the same color.

Subsequently, Nida nevertheless reported the incident to the police of Sogod. The authorities wasted no time and on that very same day, they arrested the Montecillo brothers in their residence at around nine oclock in the morning. 7 After a search wa s conducted on the persons of Radel and Alex, a policeman discovered and retrieved the amount of more than P600.00 8 each from the underwear of the Montecillo brothers. 9 The records 10 show that during his investigation by the law enforcers of Sogod, Radel inculpated appellant in the perpetration of the composite crime. With this information, Station Commander Salustiano Comaingking of the Sogod Police Station, immediately organized a team to search the house of appellant for the instruments of the crime on a tip-off by Radel. Before proceeding to appellants house, Comaingking ordered two of his men to invite Obdulio Bregente, Barangay Captain of Ibabao, to stand as a witness to the impending search. Comaingking, Bregente and several policemen arrived at the house of appellant at around 4:00 A.M. on May 3, 1989 and found appellant walking around in front of his house. After the policemen explained their purpose to appellant, he acceded to their request and offered to have his house searched by them. Appellant went with them around the house, bared his personal belongings and opened every drawer and cabinet for the policemen to see. While the search was going on, Pat. Gualberto Arnado talked to one of the children of appellant. The child pointed to a partition in the double walling of appellants bedroom and there, inserted between the sawali walls of the room, a .38 caliber revolver 11 was discovered by Pat. Arnado. Bregente corroborated this narration of Comaingking during his own testimony in court, 12 with the additional revelation that he heard appellant explaining to the policemen that the gun was in his house for repair. Appellant was immediately brought thereafter to the police station and placed in a cell intended for female detainees, separate from the cell occupied by the Montecillo brothers. Later, while Comaingking was outside the station attending to his personal needs, he saw a watch being thrown out of the window of the cell where appellant was detained alone. Nida Sultones would later identify this watch 13 in court as her Cornovin wristwatch forcefully taken from her by the robbers on May 2, 1989. The gun found in appellants house turned out positive for gunpowder residues after chemical analysis conducted by Myrna Areola, a forensic analyst of the Philippine Constabulary Crime Laboratory. 14 Paraffin tests made upon the persons of appellant and the Montecillo brothers yielded positive findings of gunpowder residues on appellants left hand, 15 with negative result s on both hands of the Montecillo brothers and the right hand of appellant. 16 When the gun was presented in court for identification, Nida declared that it was the same gun that the masked man used in shooting her brother.17 In his testimony, 18 appellants co-accused, Radel Montecillo, placed appellant at the locus criminis in a peculiar manner. In trying to exculpate himself, Radel said that he was merely jogging along the road when he saw Nida and her brother walking towards the poblacion. He followed the duo allegedly at a distance of about one meter behind them. Without any warning, he heard gunfire and saw Maximo fall to the ground. When he turned around, he saw appellant walking towards him. Appellant fired at him but missed because he stumbled to the ground at the precise time that appellant took the shot at him.chanrobles.com : virtual lawlibrary The first bullet that hit Maximo was also meant for Radel. He surmised that appellant was angry at him for refusing to help in a case appellant filed against a relative of Comaingking. Radel declared that appellant was not wearing a mask or cover on his face when he fired at him and the boy. In his turn on the witness stand, 19 appellant denied any involvement in the crime, claiming that he was at his house tending his store when the crime was committed. His wife, Felicitas Sotto, attempted to support his defense of alibi by declaring that appellant and their children went with her to the jeepney stop and waited until six oclock in the morning when she was able to get a ride to the school where she was teac hing. However, on cross-examination, she admitted that her husband and children were left behind in their house when she took a ride to the school. 20 Appellant likewise denied that he threw Nidas wristwatch from his cell. He asserted that the discovery and recovery of the w atch from him was a mere fabrication by the police, just like the finding of the revolver in his house. That gun, according to appellant, was only planted by Pat. Arnado in his room. Appellant insisted that he never agreed to the search of his house. After he objected to the search for failure of the searching party to exhibit a search warrant, a policeman brandished a rifle and forced him to allow them to enter and search the house.

He revealed in court that Radel was his former employee in his store whom he dismissed for misappropriating money from him. When they were able to talk in the police station, Radel allegedly told him that he was beaten and forced by the police to implicate appellant in the commission of the crime. Based on the results of the paraffin test, appellant contended that a mistake was made in involving him in the crime. It was impossible for him to shoot the boy as the gunpowder residues were found on his left hand while he is actually right-handed. He theorized on the possibility of an interchange of his paraffin casts with those of the Montecillo brothers who were subjected to the same tests simultaneously with him. He blamed Comaingking for his misfortunes at the hands of the police. Allegedly, Comaingking caused all the false charges to be made against appellant in order to get even with him for suing one of the relatives of said station commander. Appellant attributed three errors to the lower court in convicting him of the special complex crime. 21 In sum, appellant faults the court a quo for concluding that he participated in the commission of the crime based on unreliable, unacceptable and incredible evidence presented before it. He posits that the lower court should not have believed Nida and Radel in view of their conflicting testimonies as to whether or not his face was covered during the shooting. Additionally, his having dismissed Radel from his employment and the fact that Radel was coerced by the police to testify against him should have made the lower court doubt the veracity of Ra dels testimony. Appellant reiterates in his brief that the results of the paraffin test were interchanged, hence no reliance can be placed on such evidence. He maintains in his brief, as he did during the trial, that he never allowed the policemen to search his house without a warrant. The revolver then should not have been accepted in evidence by the lower court as mandated by the Constitution. We find appellants asseverations to be flawed in fact. En contra, we are persuaded that the Peoples case mer its acceptance in law. When the issue is one of credibility of witnesses, as in the present case, the consistent rule is that appellate courts will generally not disturb the findings of the trial court, considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless it has plainly overlooked certain facts of substance and value, that, if considered, might affect the result of the case. 22 After a meticulous scrutiny and conscientious evaluation of the records of this case for those substantial and valuable facts, we find no oversight or omission on the part of the court below in concluding that appellant is truly guilty of the crime imputed to him. Direct and circumstantial evidence presented by the prosecution, together with the testimony of appellants own co -accused, point and lead to appellants complicity in the commission of the crime. Nida was able to positively identify appellant as the member of the group of robbers who shot her brother, since only his face was covered by a piece of cloth. It was no longer dark when the crime was committed at around six oclock in the morning. There c an be no mistake in her identification as she knew appellant very well. She often passed by his house to buy goods from his store. Appellants wife is a relative of Nida. 23 Given these circumstances, Nida had become familiar with the other physical featur es of appellant so as to be able to identify him even from the configuration of his body alone, aside from his hair or his gait and other distinctive bodily movements. The eyewitness for the prosecution testified in a categorical, forthright and sincere manner. She was not fazed or rattled by the extensive cross-examination of two lawyers for the accused since all she had to do was to recall and relate the true facts. Her court declaration was consistent with the testimonies of the forensic analyst and the physician who attended to the medical needs of her brother. Appellant was not able to show any improper motive on the part of Nida to falsely incriminate him in such a serious offense. On the contrary, he and Nida were on cordial speaking terms before the commission of the robbery. 24 The fact that prosecution witnesses have no possible motive to make false imputations against the accused shows that their identification of the latter is credible. 25 Nidas identification of appellant as the killer of her brother can only be explained by an offended partys honest desire to have the real culprit, and not just anybody, apprehended and punished 26 to give justice to the victim. Then there is the testimony of Radel who apparently turned against his co-conspirator to secure his own exoneration. This desire to free himself at the expense of appellant yields light on his statement that appellant was not wearing a mask or cover on his face at the time of the commission of the felony. Obviously thinking that the People would no longer be interested in his prosecution if

the identity of the assailant is revealed, Radel lied in order to convince the court of the killers identity. Thus, we have the resultant inconsistency on this aspect in the testimonies of Nida and Radel, but both of which nonetheless conjoin in the identification of appellant as the malefactor. We find nothing irregular on the part of the lower court when it disregarded Radels profession of innocence while giving cre dence to his statement that it was appellant who shot the boy. Even where a witness has been found to have deliberately falsified the truth in some particulars, it is not required that the whole of his testimony be rejected. 27 As we have held, the maxim falsus in uno, falsus in omnibus is not a positive rule of law, is not an inflexible one of universal application, 28 and no longer warrants a rigid application in our legal setting. Under modern jurisprudence, the testimony of a witness may be believed in part, depending upon the corroborative evidence and the probabilities and improbabilities of the case. 29 It was thus within the sound and judicious discretion of the trial court to accept portions of the testimony of a witness as it may deem credible and reject those which it believes to be false. There is nothing in the records to show that Radel Montecillo was holding a grudge against appellant for his dismissal. The presence of personal motives on the part of witnesses to testify in favor of the victim or against the accused should be supported by satisfactory proof in order that the credibility of said witnesses will be impeached. 30 Lacking in this necessary proof, it can be presumed that Radel was not maliciously actuated at least when he identified appellant, and his testimony as to the identity of the boys assassin can be given weight and credit. The empty and uncorroborated denials of appellant are not sufficient to overcome the evidence proving him guilty. Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence which deserves no weight in law and cannot be given greater evidentiary value over the testimony of credible witnesses who testify on affirmative matters. 31 Between the self-serving testimony of appellant and the positive identification by the eyewitness, the latter deserves greater credence. 32 The defense utterly failed to show that the paraffin results were interchanged. Even appellant himself is not sure if there was indeed any error in the paraffin test results involving him and his confederates. During his testimony, he stated that he did not complain about the switching because he thought it was still part of the test. 33 This is a contrived and specious explanation. Withal, SPO3 Rodito Comeras 34 was able to rebut this improbable pretension of appellant. As the officer responsible for the actual conduct of the diphenylamine test, Comeras assigned to the three accused a definite seating arrangement. When he started taking casts, the accused were sitting on their respective assigned seats. And to be doubly sure, he asked each of the accused to sign a paper acknowledging the identity of the casts respectively taken from them. Forensic analyst Areola explained that it is impossible that the casts could be interchanged because each cast bears the name of the respective subject or specimen. The fact that only the left hand of appellant was found positive for nitrates is of minor significance. He may have fired the gun while holding it with both hands and its recoil or the wind direction may have prevented any residue from attaching to his right hand, or he may have removed the same during the interval between the firing and the paraffin testing. Besides, the investigative result of the diphenylamine test is only one of the number of circumstances establishing the positive identification of appellant as the culprit. We cannot, therefore, reject the testimonies of Comeras, Areola and Comaingking in order to indulge appellant in his unsupported disclaimer. Courts accord credence and full faith to the testimonies of police authorities as they are presumed to be in the regular performance of their duties, in the absence of convincing proof to the contrary. 35 We also cannot give credence to the claim of appellant that Radel was compelled by the police, particularly Comaingking, to testify against him. A perusal of the testimony of Radel on October 30, 1990 reveals that he himself did not state that he was forced by the law enforcers to implicate appellant and he even denied having involved appellant as a perpetrator of the crime during his investigation. Instead, he figuratively passed the buck to Nida Sultones by claiming that it was she who informed the police about appellants participation in the robbery with homicide. 36 The discovery by Comaingking of the watch when appellant tried to get rid of it definitely clinched appellants association with the crime. Without any sufficient or plausible explanation as to how he had come into the possession of the Cornovin wristwatch, appellant cannot escape the operation of the presumption of his culpability in the offense pursuant to Section 3, Rule 131 of the Rules of Court. 37 In the absence of proof of any intent on the part of the police authorities to falsely impute a serious crime against appellant, the presumption of regularity in the performance of official duty, as well as the principle that the findings of the trial court on the credibility of witnesses are entitled to great respect, must prevail over the self-serving and uncorroborated claim of appellant that

he had been "framed." 38 We have ruled that like alibi, a frame-up should be established by clear and convincing evidence for it is easy to concoct but hard to prove. 39 Finally, it is accepted dictum that when the accused himself waives his right against unreasonable searches and seizure, the exclusionary rule provided in the Bill of Rights of our Constitution 40 finds no application. When one voluntarily submits to a search or consents to have it made on his person or premises, he is precluded from later complaining thereof. The right to be secure from unreasonable search may be waived either expressly or impliedly. 41 Since appellant acquiesced to the search, the .38 caliber revolver is admissible in evidence against him. Appellants bare as sertion that he objected to the warrantless search is a feeble afterthought to exculpate himself after realizing the damaging consequence of his approval. Furthermore, the testimony of Barangay Captain Bregente reinforces the presumption of regularity enjoyed by law enforcers with regard to the consented search, a presumption which appellant dismally failed to overcome. WHEREFORE, on the foregoing considerations, the assailed judgment of the court a quo is hereby AFFIRMED in toto, with costs in all instances against accused-appellant Agustin Sotto. SO Romero, Puno and Torres, Jr., JJ., on leave. [G.R. NO. [Formerly G.R. NOS. 159854-56] 169141 : December 6, 2006] and Mendoza, JJ., ORDERED. concur.

PEOPLE OF THE PHILIPPINES, Appellee, v. ROMEO DEL MUNDO y STA. MARIA, Appellant. DECISION TINGA, J.: Romeo del Mundo y Sta. Maria (appellant) was charged before the Regional Trial Court (RTC) of Makati, Branch 135, for violation of Sections 5 and 11, Article II of Republic Act (R.A.) No. 9165 in two (2) Informations that read: CRIMINAL CASE No. 02-3038 That on or about the 18 of October 2002, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without the corresponding license or prescription, did then and there willfully, unlawfully and feloniously sell, give away, distribute and transport Methylamphetamine Hydrochloride (shabu), a regulated drug, weighing ZERO POINT ZERO THREE GRAM (0.03 gram) contained in one heat-sealed transparent plastic sachet. CONTRARY TO LAW.
1 th

CRIMINAL CASE No. 02-3039 That on or about the 18 day of October 2002, in the City of Makati, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to possess or otherwise use any dangerous drug and without corresponding license or prescription, did then and there willfully, unlawfully and feloniously have in his possession, direct custody and control zero point zero three (0.03) gram of Methylamphetamine Hydrochloride (shabu), which is a dangerous drug in violation of the above cited law. CONTRARY TO LAW.
2 th

Upon arraignment, appellant pleaded not guilty to the charges. Trial ensued. After trial, his co-accused Susan Pugal was acquitted 4 from a separate charge for violation of Section 11, Article II, R.A. No. 9165. However, in a Decision dated 8 September 2003, the RTC found appellant guilty beyond reasonable doubt of the crime charged. The RTC disposed as follows:

WHEREFORE, it appearing that the guilt of the accused ROMEO DEL MUNDO y STA. MARIA was proven beyond reasonable doubt for violation of Sections 5 and 11, Article II of R.A. [No.] 9165, as principal, with no mitigating or aggravating circumstances, accused is hereby sentenced: 1. In Criminal Case No. 02-3038, to suffer life imprisonment and to pay a fine ofP500,000.00; 2. In Criminal Case No. 02-3039, to suffer imprisonment for a period of twelve [12] years and one [1] day, as minimum, to twenty [20] years and a fine of P300,000.00; andcralawlibrary 3. To pay the costs. It appearing that the guilt of accused SUSAN PUGAL y PINGOL in Criminal Case No. 02-3040 was not proven beyond reasonable doubt, she is hereby acquitted of the crime of violation of Section 11 of RA [No.] 9165. Let the zero point zero nine [0.09] gram of Methylamphetamine Hydrochloride be turned over to the PDEA for proper disposition. SO ORDERED.
5

Culled from the records and decisions of the courts below, the antecedents follow. The office of Cluster 2 of the Makati Anti-Drug Abuse Council (MADAC) received a report from a confidential informant that a certain Romy, later identified as appellant, was engaged in the selling of prohibited drugs, particularly shabu. Proceeding from this information, the head of MADAC Cluster 2 formed a team to conduct a buy-bust operation and designated MADAC agent Norman 67 A. Bilason (Bilason) as the poseur-buyer, to be provided with two (2) marked P100 bills. On 18 October 2002, at around 5:00 o'clock in the afternoon, the informant accompanied Bilason to the place where appellant was reported to be plying his trade. Meantime, the rest of the MADAC and Drug Enforcement Unit (DEU) operatives positioned 8 themselves at a strategic place to monitor the transaction. Bilason and the informant approached appellant who was then standing at the corner of Pasong Tirad and Ponte Streets in Tejeros, Makati and talking to his female companion, later identified as Pugal and allegedly a 'scorer' according to the informant. The informant introduced Bilason to appellant as a buyer of shabu. Appellant asked Bilason how much he intended to buy. Bilason replied, "Dos lang, panggamit lang." Then, appellant received the P200.00 marked money from Bilason while handing the latter 9 one (1) plastic sachet of shabu which came from the left pocket of his pants. Next, Bilason gave the pre-arranged signal. The rest of the team closed in. Bilason introduced himself as a member of MADAC and, with the team, placed appellant and Pugal under 10 11 arrest. Two (2) plastic sachets and the marked money were recovered from appellant while one (1) plastic sachet was 12 confiscated from Pugal. Appellant and Pugal were duly apprised of the nature of their arrest and their constitutional rights. Afterwards, appellant and Pugal were brought to the DEU office for proper disposition. Tests conducted on the plastic sachet 13 yielded positive results for Methylamphetamine Hydrochloride. The parties stipulated that the physical science report was duly accomplished after the specimens of shabu had been subjected to laboratory tests. Hence, the prosecution dispensed with the presentation of the Forensic Chemist. The parties likewise stipulated that: (1) MADAC agent Diomedes Camporaso confiscated from Pugal one [1] plastic sachet suspected to contain shabu; 15 and (2) SPO2 Wilmer Antonio was the team leader of the buy-bust operation wherein he assisted in the arrest of appellant. Appellant, a 63-year old jobless resident of Tejeros, Makati, interposed the defense of denial. He claimed that there was never a time in his life that he sold shabu. He alleged that in the afternoon of 18 October 2002, he was inside his house lying down with his grandchild. He was awakened from sleep when police officers kicked the door open and entered the house. The police officers forced him to reveal the whereabouts of the shabu and the money. Appellant replied that he does not sell shabu. Then, the police officers searched the house but were not able to find anything. Subsequently, appellant was asked to go out of the house and 16 board the police officers' service vehicle for allegedly selling shabu. Appellant entrusted his grandchild to his wife's sibling. At the DEU office, appellant was told to escape but he did not as he claimed not to have done anything wrong. Ten (10) minutes after, Pugal arrived. Appellant came to know of the charges against him on the day he was arrested. Allegedly, these are false 17 charges but appellant failed to file any complaint against the arresting officer for lack of money.
14

Appellant was found guilty as charged and the judgment of conviction was elevated to the Court for automatic review. In a 18 19 Resolution dated 6 September 2004 of the Court in G.R. NOS. 159854-56, the cases were transferred to the Court of Appeals 20 pursuant to the Court's ruling in People v. Mateo. Before the Court of Appeals, appellant argued that the trial court erred in: (1) according greater weight to the evidence adduced by the prosecution and disregarding the defense of denial interposed by appellant; and (2) finding appellant guilty beyond 21 reasonable doubt of the offenses charged. The Court of Appeals in a Decision dated 27 June 2005, in CA-G.R. CR No. 00232, affirmed with modifications the decision of the trial court. The dispositive portion of the decision reads: WHEREFORE, the appealed Decision is AFFIRMED with MODIFICATION. Appellant Romeo del Mundo y Sta. Maria is hereby ACQUITTED in Crim. Case No. 02-3039. His conviction in Crim. Case No. 02-3038 for violation of Section 5, Article II of RA No. 9165 and all other aspects of the Decision are maintained. SO ORDERED.
23 22

The Court of Appeals held that in Criminal Case No. 02-3038, the details of the sale of shabubetween appellant and the MADAC 24 operatives have been clearly and sufficiently shown. However, the appellate court entertained doubts with respect to appellant's culpability in Criminal Case No. 02-3039 resulting to his acquittal therein. The appellate court observed that the prosecution did not produce evidence to show that appellant was actually in possession of the second sachet supposedly 25 containing 'shabu.' Appellant is now before the Court submitting for resolution the same matters argued before the Court of Appeals, though this time he questions only his conviction in Criminal Case No. 02-3038, for the illegal sale of shabu, as he was acquitted of the charge 26 in Criminal Case No. 02-3039 by the appellate court. Through his Manifestation (In Lieu of Supplemental Brief) dated 14 November 2005, appellant stated that will not file a Supplemental Brief and in lieu thereof, he will adopt the Appellant's Brief he had filed before the appellate court. The Office of the Solicitor General likewise manifested that it is no longer filing a 27 supplemental brief. Appellant principally contends that the non-presentation before the trial court of the informant and witnesses other than MADAC 28 agents Bilason and Camporaso militates against the trustworthiness of the prosecution's theory. The Court is not persuaded. The pertinent provision of Article II of R.A. 9165 reads as follows: SEC. 5. Sale, Trading, Administration, Dispensation, Delivery, Distribution and Transportation of Dangerous Drugs and/or Controlled Precursors and Essential Chemicals. - The penalty of life imprisonment to death and a fine ranging from Five hundred thousand pesos (P500,000.00) to Ten Million Pesos (P10,000,000.000) shall be imposed upon any person, who, unless authorized by law, shall sell, trade, administer, dispense, deliver, give away to another, distribute, dispatch in transit or transport any dangerous drug, including any and all species of opium poppy regardless of the quantity and purity involved, or shall act as a broker in any of such transactions. The elements necessary in every prosecution for the illegal sale of 'shabu' are: (1) the identity of the buyer and the seller, the 30 object and the consideration; and (2) the delivery of the thing sold and the payment therefor. What is material is the proof that the transaction or sale transpired, coupled with the presentation in court of the corpus delicti. Corpus delicti is the body or substance of the crime, and establishes the fact that a crime has been actually committed. It has two elements, namely: (1) proof 31 of the occurrence of a certain event; and (2) some person's criminal responsibility for the act. MADAC agent Bilason, the poseur-buyer, clearly established that an illegal sale of shabu actually took place and that appellant was the author thereof. He testified as follows: Fiscal Moreno to witness: Q: How did you come to know the accused in this case?cralawlibrary
29

A: On October 18, 2002, we arrested both accused Romeo del Mundo and Susan Pugal. Q: For what particular offense?cralawlibrary A: For violation of Sections 5 and 11. Q: Did you conduct a buy-bust operation against said accused?cralawlibrary A: Yes, sir. Q: Was the buy bust operation successful?cralawlibrary A: Yes, sir. Q: In connection with the buy-bust operation that you conducted against the accused, do you recall having executed a Joint Affidavit of Arrest?cralawlibrary A: Yes, sir. Q: If that affidavit will be shown to you, will you be able to identify the same?cralawlibrary A: Yes, sir. Q: I am showing to you a Pinagsanib Na Sinumpaang Salaysay. Please go over this and tell the Court if this is the same affidavit that you executed?cralawlibrary A: Yes, sir. Fiscal Moreno: This was previously marked as Exhibits A and A-1. xxxx Fiscal Moreno: For purposes of expediency and to save the material time of the Honorable Court, we propose for stipulation with the defense that this Pinagsanib na Sinumpaang Salaylay (sic) will form part as the direct testimony of the witness. Atty. Quiambao: We agree, your Honor. xxxx
32

In the Pinagsanib na Sinumpaang Salaysay, Bilason together with SPO2 Wilmer Antonio and MADAC Agent Camporaso narrated in detail the sale of shabu made by appellant to Bilason. Based on a tip from a confidential informant, a team composed of MADAC and DEU agents was formed to conduct a buy-bust operation. The team proceeded to the place wherein, according to the confidential informant, appellant allegedly conducted his transactions. After introductions were made, Bilason handed the marked money to appellant while the latter in turn handed him one (1) plastic sachet containing shabu. Appellant was thereafter 34 immediately arrested. The result of the laboratory examination conducted on the white crystalline substance confiscated from appellant and forwarded to the crime laboratory of the Philippine National Police confirms the testimony that indeed, what was sold by appellant was shabu. The results of the examination states:

33

FINDINGS: Qualitative examination conducted on the above-stated specimens gave POSITIVE result to the tests for the presence of Methylamphetamine hydrochloride, a dangerous drugs. x x x x CONCLUSION: Specimens A to C contains Methylamphetamine hydrochloride, a dangerous drugs. x x x x
35

Moreover, Bilason was able to present and identify in court the confiscated drugs and the marked money, which are corroborating pieces of evidence of the corpus delicti, thus: Fiscal Moreno: Q: You likewise stated in your Affidavit that you were able to buy shabu from the accused and confiscated another plastic sachets (sic) containing shabu. If those items will be shown to you, will you be able to identify the same?cralawlibrary A: Yes, sir. Q: I am showing to you a white envelope, do you know the contents of this envelope?cralawlibrary A: Yes, sir. Three plastic sachets. Q: Will you go over these plastic sachets and tell us which of these plastic sachets you were able to buy from accused Del Mundo?cralawlibrary A: This one with marking "RDMS." Fiscal Moreno: We request that this white envelope be marked as Exhibit "E" and this plastic sachet with marking "RDMS" be marked as E[x]hibit 36 "E-1." xxxx Fiscal Moreno: Q: You said in your Pinagsanib na Sinumpaang Salaysay that in conducting the buy bust operation against the accused, you used buy bust money consisting of two pieces of One Hundred Peso bills. If that two pieces of One Hundred Peso bills will be shown to you, will you be able to identify the same?cralawlibrary A: Yes, sir. Q: I am showing to you two pieces of One Hundred Peso bills, will you please tell us if these are the same buy bust money which you used in conducting the buy bust operation against the accused?cralawlibrary A: This is the photocopy of the buy bust money we used in the operation. xxxx
37

A buy-bust operation is a form of entrapment whereby ways and means are resorted to for the purpose of trapping and capturing 38 the lawbreakers in the execution of their criminal plan. The delivery of the contraband to the poseur-buyer and the receipt by the seller of the marked money successfully consummates the buy-bust transaction between the entrapping officers and the 39 accused. Unless there is clear and convincing evidence that the members of the buy-bust team were inspired by any improper 40 motive or were not properly performing their duty, their testimony on the operation deserves full faith and credit.

It is very clear from the testimony of Bilason and the other members of the team bear that their narration of events was positive, probable and in accord with human experience. It bears the badges of truth, such that it is difficult for a rational mind not to find it credible. Thus, we find no reason to deviate from the findings of the trial court and the appellate court. In addition, the presumption of regularity in the performance of official duties has not been controverted; hence, the Court is bound to uphold it. Appellant failed to prove that in testifying against him, Bilason and the other members of the team were motivated by reasons other than the duty to curb the sale of dangerous drugs. There is no proof of any ill motive or odious intent 41 on the part of the police authorities to impute falsely such a serious crime to appellant. On the non-presentation of the informant, the rule is that his presentation in an illegal drugs case is not essential for the conviction nor is it indispensable for a successful prosecution because his testimony would merely be corroborative and cumulative. Informants are generally not presented in court because of the need to hide their identity and preserve their invaluable service to the police. Here, the agents directly testified regarding the entrapment, and the testimony of the informant would merely have been corroborative. Appellant's defenses of denial and alibi are unavailing. It bears emphasis that appellant was caught in flagrante delicto in a legitimate entrapment operation conducted by the MADAC and DEU agents. Hence, his identity as the person who sold the dangerous drug to Bilason cannot be doubted anymore. Such positive identification prevails over his weak defenses of denial and alibi. In People v. Isnani, we ruled that: The defenses of denial and alibi have been invariably viewed by us with disfavor for it can easily be concocted but difficult to prove, and they are common and standard defense ploys in most prosecutions arising from violations of the Dangerous Drugs 43 Act. Appellant's contention that the police authorities intruded his house and that he only failed to file charges against them due to lack of money could neither be believed. Appellant did not bother to present any evidence to support this contention. It likewise 44 bears stressing that the police authorities are presumed to have performed their duty in a regular manner. In fine, the trial court and the appellate court correctly held that appellant is guilty of the crime of illegal sale of shabu. WHEREFORE, the Decision dated 27 June 2005 of the Eighth Division of the Court of Appeals in CA G.R. CR No. 00232 finding appellant Romeo del Mundo y Sta. Maria guilty beyond reasonable doubt of the crime charged in Criminal Case No. 02-3038 for violation of Section 5, Article II of R.A. No. 9165 is AFFIRMED. SO ORDERED.
42

[G.R. AIR

No. FRANCE, Petitioner, v. RAFAEL Picazo

L-21438. CARRASCOSO and & THE

September HONORABLE COURT

28, OF

1966.] APPEALS, Respondents. for Petitioner.

Lichauco,

Agcaoili

Bengzon, Villegas & Zarraga for respondent R. Carrascoso.

SYLLABUS

1. JUDGMENT; FINDINGS OF FACT; REQUIREMENT OF LAW. Courts of justice are not burdened with the obligation to specify in the sentence every bit and piece of evidence presented by the parties upon the issues raised. The law solely insists that a decision state the "essential ultimate facts" upon which the courts conclusion is drawn. 2. ID.; ID.; ID.; APPEAL AND ERROR; FAILURE TO MAKE FINDINGS ON EVIDENCE AND CONTENTIONS OF ONE PARTY, EFFECT OF; DECISION NOT TO BE CLOGGED WITH DETAILS. The mere failure to make specific findings of fact on the evidence presented for the defense or to specify in the decision the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirement of the law and the Constitution. There is no law that so requires. A decision is not to be clogged with details such that prolixity, if not confusion, may result. 3. ID.; ID.; ID.; FINDINGS OF FACT BY COURTS DEFINED. Findings of fact may be defined as the written statement of the ultimate facts as found by the court and essential to support the decision and judgment rendered thereon; they consist of the courts "conclusions with respect to the determinative facts on issue."cralaw virtua1aw library 4. ID.; ID.; ID.; QUESTION OF LAW EXPLAINED. A question of law is "one which does not call for an examination of the probative

value

of

the

evidence

presented

by

the

parties."cralaw

virtua1aw

library

5. PLEADING AND PRACTICE; APPEAL; WHAT MAY BE RAISED ON APPEAL FROM COURT OF APPEALS. It is not appropriately the business of the Supreme Court to alter the facts or to review the questions of fact because, by statute, only questions of law may be raised in an appeal bycertiorari from a judgment of the Court of Appeals, which judgment is conclusive as to the facts. 6. ID.; ID.; EFFECT OF AFFIRMANCE BY COURT OF APPEALS OF TRIAL COURTS DECISION. When the Court of Appeals affirms a judgment of the trial court, and the findings of fact of said appellate court are not in any way at war with those of the trial court, nor is said affirmance upon a ground or grounds different from those which were made the basis of the trial courts conclusio ns, such judgment of affirmance is (1) a determination by the Court of Appeals that the proceeding in the lower court was free from prejudicial error; (7) that all questions raised by the assignments of error and all questions that might have been so raised have been finally adjudicated as free from all error. 7. ID.; COMPLAINT; SPECIFIC MENTION OF THE TERM "BAD FAITH" IN THE COMPLAINT NOT REQUIRED. Although there is no specific mention of the term bad faith in the complaint, the inference of bad faith may be drawn from the facts and circumstances set forth therein. 8. EVIDENCE; FINDING OF COURT OF APPEALS THAT RESPONDENT WAS ENTITLED TO A FIRST CLASS SEAT. The Court of Appeals properly found that a first class-ticket holder is entitled to first class seat, given the fact that seat availability in specific flights is therein confirmed; otherwise, an air passenger will be placed in the hollow of the hands of an airline, because it will always be easy for an airline to strike out the very stipulations in the ticket and say that there was verbal agreement to the contrary. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. 9. ID.; LACK OF SPECIFIC AVERMENT OF BAD FAITH CURED BY NOTICE TO DEFENDANT OF WHAT PLAINTIFF INTENDS TO PROVE AND BY EVIDENCE PRESENTED WITHOUT OBJECTION; AMENDMENT OF COMPLAINT TO CONFORM TO EVIDENCE UNNECESSARY. If there was lack of specific averment of bad faith in the complaint, such deficiency was cured by notice, right at the start of the trial, by plaintiffs counsel to defendant as to what plaintiff intended to prove: while in the plane in Bangkok, plaintiff was ousted by defendants manager who gave his seat to a white man; and by evidence of bad faith in the fulfillment of the contract presented without objection on the part of the defendant. An amendment of the complaint to conform to the evidence is not even required. 10. ID.; ADMISSIBILITY OF TESTIMONY ON AN ENTRY IN A NOTEBOOK; TESTIMONY NOT COVERED BY BEST EVIDENCE RULE. The testimony of a witness that the purser made an entry in his notebook reading "First Class passenger was forced to go to the tourist class against his will and that the captain refused to intervene," is competent and admissible because the subject of the inquiry is not the entry but the ouster incident. It does not come within the prescription of the best evidence rule. 11. CONTRACT OF CARRIAGE; QUASI-DELICT; LIABILITY OF COMMON CARRIERS; CASE AT BAR. Neglect or malfeasance of the carriers employees could give ground for an action for damages. Damages here are proper because the stress of respondents action is placed upon his wrongful expulsion, which is a violation of a public duty by petitioner- aircarrier a case of quasi-delict. 12. ID.; ID.; ID.; AWARD OF MORAL DAMAGES FOR BREACH OF CONTRACT. Award of moral damages is proper, despite petitioners argument that respondents action is planted upon breach of contract, where the stress of the action is put on wrongful expulsion, the contract having been averred only to establish the relation between the parties. 13. ID.; ID.; ID.; EMPLOYER IS RESPONSIBLE FOR TORTIOUS ACTS OF HIS EMPLOYEE; CASE AT BAR. The responsibility of an employer for the tortious act of his employees is well settled in law. (Art. 2130, Civil Code). Petitioner-aircarrier must answer for the willful, malevolent act of its manager. 14. ID.; ID.; ID.; LIABILITY FOR EXEMPLARY DAMAGES; POWER OF COURTS TO GRANT; CASE AT BAR. The Civil Code gives the court ample power to grant exemplary damages, the only condition being that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." As the manner of ejectment of plaintiff from his first class seat fits into this legal precept, exemplary damages are well awarded, in addition to moral damages. 15. ID.; ID.; LIABILITY FOR ATTORNEYS FEES; COURT DISCRETION WELL EXERCISED SHOULD NOT BE DISTURBED. The grant of exemplary damages justifies a similar judgment for attorneys fees. The court below felt that it is but j ust and equitable that attorneys fees be given and the Supreme Court does not intend to break faith with the tradition that discretion well -exercised as it is here should not be disturbed. 16. ID.; RIGHTS OF PASSENGERS. Passengers do not contract merely for transportation. They have a right to be treated by the carriers employees with kindness, respect, courtesy and due consideration. They are entitled to be protected against persona l

misconduct, injurious language, indignities and abuses from such employees. So, any rude or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. (4 R. C. L-1174-1175). 17. ID.; BREACH OF CONTRACT MAY BE A TORT. Although the relation of passenger and carrier is contractual both in origin and nature, nevertheless, the act that breaks the contract may also be a tort. 18. WORDS AND PHRASES; BAD FAITH DEFINED. "Bad faith", as understood in law, contemplates a state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purpose

DECISION

SANCHEZ, J.:

The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate, from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys fees; and the costs of suit. On appeal, 2 the Court of Appeals slightly reduced the amount of refund on Carrascosos plane ticket from P393.20 to P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner. The case is now before us for review on certiorari.

The facts declared by the Court of Appeals as "fully supported by the evidence of record", are:jgc:chanrobles.com.ph "Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on March 30, 1958. On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued to plaintiff a first class round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff traveled in first class, but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the first class seat that he was occupying because, in the word s of the witness Ernesto G. Cuento, there was a white man, who, the Manager alleged, had a better right to the seat. When asked to vacate his first class seat, the plaintiff, as was to be expected, refused, and told defendants Manager that his seat woul d be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, many of the Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to give his seat to the white man (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff reluctantly gave his first class seat in the plane." 3 1. The thrust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals. Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate courts decision. Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without expressing therein clearly and distinctly the facts and the law on which it is based." 5 This is echoed in the statutory demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on which it is based", 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all issues properly raised before it." 7 A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists that a decision state the "essential ultimate facts" upon which the courts conclusion is drawn. 9 A court of justice is not hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts" which a party "considered as proved." 11 This is but a part of the mental process from which the Court draws the essential ultimate facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to withhold therefrom "any specific finding of facts with respect to the evidence for the defense." Because, as this Court well observed, "There is no law that so requires." 12 Indeed, "the mere failure to specify (in the decision) the contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to the requirements of the provisions of law and the Constitution." It is in this setting that in Manigque, it was held that the mere

fact that the findings "were based entirely on the evidence for the prosecution without taking into consideration or even mentioning the appellants side in the controversy as shown by his own testimony", would not vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all the matters within an issue in a case were laid before the court and passed upon by it. 15 Findings of fact, which the Court of Appeals is required to make, may be defined as "the written statement of the ultimate facts as found by the court . . . and essential to support the decision and judgment rendered thereon." 16 They consist of the courts "conclusions with respect to the determinative facts in issue" 17 A question of law, upon the other hand, has been declared as "one which does not call for an examination of the probative value of the evidence presented by the parties." 18 2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of Appeals 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the facts or to review the questions of fact. 20 With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its judgment. 3. Was Carrascoso entitled to the first class seat he claims?

It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have a first class ride, but that such would depend upon the availability of first class seats. These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed reservations for, and a right to, first class seats on the definite segments of his journey, particularly that from Saigon to Beirut." 21 And, the Court of Appeals disposed of this contention thus:jgc:chanrobles.com.ph

"Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee that the passenger to whom the same had been issued, would be accommodated in the first-class compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for the necessary first class reservation. We are not impressed by such a reasoning. We cannot understand how a reputable firm like defendant airplane company could have the indiscretion to give out ticket it never meant to honor at all. It received the corresponding amount in payment of first-class tickets end yet it allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of business that the company should know whether or not the tickets it issues are to be honored or not." 22 Not that the Court of Appeals is alone. The trial court similarly disposed of petitioners contention, thus:jgc:chanrobles.co m.ph "On the fact that plaintiff paid for, and was issued a First class ticket, there can be no questio n. Apart from his testimony, see plaintiffs Exhibits A, A-1 B, B-1, B-2, C and C-1, and defendants own witness, Rafael Altonaga, confirmed plaintiffs testimony and testified as follows:chanrob1es virtual 1aw library Q. A. Q. In these tickets That Confirmed there are marks the for O.K. From what space you know, what is first does this O.K. mean?

confirmed. class?

A. Yes, first class. (Transcript, p. 169) x x x

"Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff paid for, and was issued a first class airplane ticket, the ticket was subject to confirmation in Hongkong. The court cannot give cre dit to

the testimony of said witnesses. Oral evidence cannot p revail over written evidence, and plaintiffs Exhibits A, A1, B, B -1, C and C- 1 belie the testimony of said witnesses, and clearly show that the plaintiff was issued, and paid for, a first class ticket without any reservation whatever. Furthermore, as hereinabove shown, defendants own witness Rafael Altonaga testified that the reservation for a first class accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation ,defendant had a verbal understanding with plaintiff that the first class ticket issued to him by defendant would be subject to confirmation in Hongkong." 23 We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on Carrasco sos ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24 Implicit in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was free from prejudicial error and that all questio ns raised by the assignments of error and all questions that might have been so raised are to be regarded as finally adjudicated against the appellant." So also, the judgment affirmed "must be regarded as free from all error" 25 We reached this policy construction because nothing in the decision of the Court of Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of the conclusions of the trial court. 26 If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary. What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower courts refused to believe the oral evidence intended to defeat the covenants in the ticket. The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight, 27 We perceive no "welter of distortions by the Court of Appeals of pet itioners statement of its position", as charged by petitioner. 28 Nor do we subscribe to petitioners accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue." 29 And this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat and because from Saigon I was told again to see the Manager. 30 Why, then, was he allowed to take a first class seat in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat? 4. Petitioner assails respondent courts award of moral damages. Petitioners trenchant claim is that Carrascosos action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment of fraud or bad faith; 31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal allegations in the complaint bearing on this issue are:jgc:chanrobles.com.ph "3. That . . . plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable consideration, the latter acting as general agents for and in behalf of the defendant, under which aid contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendants plane during the entire duration of plaintiffs tour of Europe with Hongkong as starting point up to and until plaintiffs return trip to Manila, . . . 4. That during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence were made by the plaintiff with defendants employees. 5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff only Tourist Class accommodations from Bangkok to Teheran and/or Casablanca, . . . the plaintiff has been compelled by defendants employees to leave the First Class accommodation berths at Bangkok after he was already seated. 6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought by defendants breach of contract was forced to take a Pan American World Airways plane on his return trip from Madrid to Manila. 32 x x x

2. That likewise, as a result of defendants failure to furnish First Class accommodations aforesaid, plaintiff suffered inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety, wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00." 33 x x x

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when petitioner failed to furnish first class transportation at Bangkok; and Third, That there was bad faith when petitioners employee compelled Carrascoso to leave his f irst class accommodation berth "after he was already seated" and to take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations, thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad faith is there; it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to establish the relation between the parties. But the stress of the action is put on wrongful expulsion. Quite apart from the foregoing is that (a) right at the start of the trial, respondents counsel placed petitioner on guard o n what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was ousted by petitioners manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any, was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the question of bad faith, the Court of Appeals declared:jgc:chanrobles.com.ph "That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent but against his will, has been sufficiently established by plaintiff in his testimony before the court, corroborated by the corresponding entry made by the purser of the plane in his notebook which notation reads as follows:chanrob1es virtual 1aw library First-class passenger was forced to go to the tourist class against his will and that the captain refused to intervene, and by the testimony of an eye-witness Ernesto G. Cuento, who was a co-passenger. The captain of the plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so. It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff. It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or yet to secure his deposition; but defendant did neither. 37 The Court of Appeals further stated

"Neither is there evidence as to whether or ,not a prior reservation was made by the white man. Hence, if the employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of explaining to the white man the improvidence committed by defendants employee s, the manager adopted the more drastic step of ousting the plaintiff who was then safely ensconced in his rightful seat. We are strengthened in our belief that this probably was what happened there, by the testimony of defendants witness Rafael Altonag a who, when asked to explain the meaning of the letters O.K., appearing on the tickets of plaintiff, said that the space is confirmed for first class. Likewise, Zenaida Faustino, another witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:chanrob1es virtual 1aw library Q. How does the person in the ticket-issuing office know what reservation the passenger has arranged with you? A. They call us up by phone and ask for the confirmation. (t.s.n., p. 247, June 19, 1959)

In this connection, we quote with approval what the trial Judge has said on this point:chanrob1es virtual 1aw library Why did the, using the words of witness Ernesto G. Cuento, white man have a better right to the seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove any better, nay, any right on the part of the white man to the First class seat that the plaintiff was occupying and for which he paid and was issued a corresponding first class ti cket.

If there was a justified reason for the action of the defendants Manager in Bangkok, the defendant could have easily proven it by having taken the testimony of the said Manager by deposition, but defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if produced [Sec. 69, par. (e) Rules of Court]; and, under the circumstances, the Court is constrained to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but threatened the plaintiff to throw him out of the plane if he did not give up his first class seat because the said Manager wanted to accommodate using the words of the witness Ernesto G. Cuento, the white man." 38 It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term "bad faith." But can it be doubted that the recital of facts therein points to bad faith? The manager not only prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class compartment just to give way to another passenger whose right thereto has not been established. Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or with some motive of self-interest or ill will or for ulterior purposes." 39 And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the Court of First Instance, thus:jgc:chanrobles.com.ph "The evidence shows that defendant violated its contract of transportation with plaintiff in bad faith, with the aggravating circumstances that defendants Manager in Bangkok went to the extent of threatening the plaintiff in the presence of many passengers to have him thrown out of the airplane to give the first class seat that he was occupying to, again using t he words of witness Ernesto G. Cuento, a white man whom he (defendants Manager) wished to accommodate, and the defendant has not proven that this white man had any better right to occupy the first class seat that the plaintiff was occupying, duly paid for, and for which the corresponding first class ticket was issued by the defendant to him." 40 5. The responsibility of an employer for the tortuous act of its employees-need not be essayed. It is well settled in law. 41 For the willful malevolent act of petitioners manager, petitioners his employer, must answer. Article 21 of the Civil Code says:jgc:chanrobles.com.ph "Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage."cralaw virtua1aw library In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article 2219 (10), Civil Code, moral damages are recoverable. 42 6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43 And this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore, generates a relation attended with a public duty. Neglect or malfeasance of the carriers employees, naturally, could give ground for an action for damages . Passengers do not contract merely for transportation. They have a light to be treated by the carriers employees with kindnes s, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct, injurious language, indignities and abuses from such employees. So it is, that any rude or discourteous conduct on the part of employees towards a passenger gives the latter an action for damages against the carrier. 44 Thus, "Where a steamship company 45 had accepted a passengers check, it was a breach of contract and a tort, giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless and demand payment under threat of ejection, though the language used was not insulting and she was not ejected. 46 And this, because, altho the relation of passenger and carrier is "contractual both in origin and nature" nevertheless "the act that breaks the contract may be also a tort." 47 And in another case, "Where a passenger on a railroad train, when the conductor came to collect his fare, tendered him the cash fare to a point where the train was scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable for the mental suffering of said passenger. Petitioners contract with Carrascoso is one attended with public duty. The stress of Carrascosos action as we have said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner-air carrier a case of quasi-delict. Damages are proper.

7. "Q.

Petitioner You

draws mentioned

our about

attention an

to attendant.

respondent Who is

Carrascosos that

testimony, attendant and

thus

purser?

A. When we left already that was already in the trip I could not help it. So one of the flight attendants approached me and requested from me my ticket and I said, What for? and she said, We will note that you were transferred to the tourist class . I said, Nothing of that kind. That is tantamount to accepting my transfer. And I also said, You are not going to note anything there because I am protesting to this transfer. Q. A. Q. No, Was because About she I able did not that to give note my it? ticket. purser?

A. Well, the seats there are so close that you feel uncomfortable and you dont have enough leg room, I stood up and I went to the pantry that was next to me and the purser was there. He told me, I have recorded the incident in my notebook. He read it an d translated it to me because it was recorded in French First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene. MR. VALTE

I move to strike out the last part of the testimony of the witness because the best evidence would be the notes. Your Honor. COURT I will allow that as part of his testimony." 49

Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebooks reading "First class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is predicated upon evidence *Carrascosos testimony above+ which is incompetent. We do not think so. The subject of inquiry is not the entry, bu t the ouster incident. Testimony of the entry does not come within the proscription of the best evidence rule. Such testimony is admissible. 49 Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental and physical condition of the declarant." 51 The utterance of the purser regarding his entry in the notebook was spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It thus escapes the operation of the hearsay rule. It forms part of the res gestae. At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an easy matter for petitioner to have contradicted Carrascosos testimony. If it were really true that no such entry was made, the depositio n of the purser could have cleared up the matter. We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.

8. Exemplary damages are well awarded. The Civil Code gives the Court ample power to grant exemplary damages in contracts and quasi-contracts. The only condition is that defendant should have "acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first class seat fits into this legal precept. And this, in addition to moral damages. 54 9. The right to attorneys fees is fully established. The grant of exemplary damages justifies a similar judgment for attorneys fees. The least that can be said is that the courts below felt that it is but just and equitable th at attorneys fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as it was here should not be disturbed. 10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys fees. The task of fixing these amounts is

primarily with the trial-court. 56 The Court of Appeals did not interfere with the same. The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point to the reasonableness thereof. 57 On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly vote to affirm the same. Costs against petitioner. So ordered. Concepcion, C.J., Reyes J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.

Bengzon, J.P., J., did not take part.

[G.R. THE Filemon PEOPLE OF

No. THE

L-23924. PHILIPPINES, Plaintiff-Appellee, Cajator v.

April FELIPE S.

29,

1968.]

TANJUTCO, Defendant-Appellant. for Appellant.

Solicitor General Antonio P. Barredo, Assistant Solicitor General Isidro C. Borromeo & Solicitor Enrique M. Reyes and Laurea & Pison for Appellee.

SYLLABUS

1. EVIDENCE; CIRCUMSTANTIAL EVIDENCE MAY BE SUFFICIENT TO SUPPORT CONVICTION. Although not a single witness testified to having personally seen the accused in the act of falsifying the duplicate deposit slips or bank statements, direct evidence on this point is not imperative as it was established that the accused himself prepared the original and deposit slips; that there were discrepancies between the original deposit slips and the duplicates thereof; that the amounts indicated in the originals were accordingly credited; that there were supposed duplicate deposit slips duly signed by the accused which contained forged initials of the bank-teller or else not covered by any original slip at all; and that the accused admitted not only having manipulated the records of his employer but also of having been able by that means to abstract amounts from the funds of his employer. Assuming all these evidences to be circumstantials, they nonetheless constitute legal evidence that may support a conviction, affording as they do basis for a reasonable inference of the existence of the fact thereby sought to be proved. 2. ID.; WHEN LACK OF FORMAL PRESENTATION OF EXHIBITS DOES NOT RENDER THEIR CONSIDERATION REVERSIBLE ERROR. There is no necessity for all the duplicates slips to be identified one by one before they may be properly considered against the accused. The absence of the formal presentation of certain exhibits does not render their consideration reversible error if repeated references thereto in the course of the trial by counsel for the accused and of the court convincingly show that the documents were part of the prosecutions evidence. 3. ID,; DOCUMENTARY EVIDENCE; RELEVANCY OF DOCUMENTARY EVIDENCE NOT AFFECTED BY ABSENCE OF ACCUS EDS SIGNATURE THEREON. The relevancy of certain documents to establish the fact that the accused had received money for deposit for the account of his employer is not affected by the absence of the accuseds signature thereon. Having been passed upon and favorably considered by the trial court, the matter of relevancy of these documents cannot be reviewed on appeal as

this lies within the sound discretion of said court which deserves the respect of the appellate tribunal. 4. CRIMINAL LAW; CRIMINAL LIABILITY; ACCEPTANCE BY COMPLAINANT OF PROPERTIES BELONGING TO THE ACCUSED AND HIS RELATIVES IN SETTLEMENT OF OBLIGATIONS, NOT A NOVATION RESULTING IN EXTINCTION OF CRIMINAL LIABILITY; NERY CASE, DISTINGUISHED FROM PRESENT CASE. In support of the claim that acceptance by complainant of payment converted the liability of the accused into a civil obligation or else estopped the complainant with the prosecution of the case, reliance is placed on the case of People v. Nery, L-19567, February 5, 1964. Such reliance is misplaced. In the Nery case, an action for estafa, it was held that contractual relationship between the parties can be validly novated by the settlement of the obligation of the offender. In the present case there was no contractual relationship or bilateral agreement which can be modified or altered by the parties. There is here merely a taking of the complainants property by one who never acquired juridical possession thereof, qualified by grave abuse of confidence. Moreover, it is inaccurate to say unqualifiedly that the theory that payment can obliterate criminal liability was upheld in the Nery case, for it was precisely held there that acceptance of partial satisfaction does not affect the nullification of a criminal liability that is fully matured and already in the process of enforcement. 5. ID.; ID.; PARTIAL PAYMENT BY ACCUSED OF AMOUNT MISAPPROPRIATED DOES NOT BAR FILING AND PROSECUTION OF CRIMINAL CASE FOR QUALIFIED THEFT. Assuming that there was partial payment in the amount of P134,136.09 by the accused and his relatives of the amount misappropriated in the sum of P400,086.19, the same would not suffice to bar the filing and prosecution of the criminal case for qualified theft against him considering that he concedes having actually used the money belonging to his employer although in an amount less than P400,086.19.

DECISION

REYES,

J.B.L.,

Actg.

C.J.

p:chanrob1es

virtual

1aw

library

In an information filed in the Court of First Instance of Manila (Crim. Case No. 34595) on March 5, 1956, Felipe S. Tanjutco was accused of the crime of qualified theft, allegedly committed as follows:jgc:chanrobles.com.ph "That in, about and during the period comprised between January 7, 1953 and January, 1955, inclusive, in the City of Manila, Philippines, the said accused, being then the private secretary of Roman R. Santos, and as such is entrusted with the duty of depositing large sums of money in the bank for and in behalf of the said Roman R. Santos, with grave abuse of confidence did then and there willfully, unlawfully and feloniously, with intent of gain and without the knowledge and consent of the owner thereof, take, steal and carry away various sums of money amounting to P400,086.19, belonging to the said Roman R. Santos, to the damage and prejudice of the said owner in the aforesaid sum of P400,086.19, Philippine currency."cralaw virtua1aw library After a protracted trial, decision was rendered on October 14, 1964, the court finding the accused guilty beyond reasonable doubt of the crime charged, and sentencing him to life imprisonment and to the accessory penalties of the law, to indemnify the estate of the deceased Roman R. Santos in the sum of P400,086.19, and to pay the costs. From this decision, the accused appealed to this Court assigning 15 errors allegedly committed by the court below, all boiling down to the question of sufficiency of evidence to support the lower courts conclusion that he had misappropriated the total sum of P400,086.19, and in sentencing him to life imprisonment. In short, the main issue here is not whether the accused had committed acts of misappropriation, but how much he had misappropriated, according to the evidence on record. The abovementioned judgment of the court below was based on the findings that during the period specified in the complaint, the accused was the private secretary of the complainant Roman R. Santos, businessman, financier and, at the time, Chairman of the Board of Directors of the Prudential Bank and Trust Company (PBTC) which he had founded. As such secretary to the BoardChairman, the accused held office in the bank premises, had free access to all offices of the bank and free use of its equipment. The relationship between the accused and his employer was so intimate and confidential that the latter used to send to the former sums of money to be deposited in his (Don Romans) current accounts with the Prudential Bank. It was in the discharge of this duty that the accused betrayed the confidence reposed on him by his employer by retaining for his personal use part of the money entrusted to him, resulting in shortage in the accounts of the employer, which was discovered only in January, 1957. The intricate operation said to have been resorted to by the accused and enabled him to cover up his defalcations for some time, was succinctly described in the decision now on appeal, thus:jgc:chanrobles.com.ph "Mr. Santos (Roman) maintained four accounts, all current, with the bank. They were identified as accounts Nos. 1, 2, 3, and 4. Every time Mr. Santos sent money to the accused to be deposited, the former indicated the current account number to which said

amount should be deposited. The accused would then deposit the amount with the bank and obtain a duplicate of the deposit slip duly stamped by the bank. This duplicate deposit slip would later on be shown to Mr. Santos to satisfy the latter that the money entrusted to the accused was already deposited according to his instructions. After the latter shall have checked the correctness of the amount appearing in the duplicate deposit slip, he would return said duplicate to the accused for safekeeping. "For its part, the bank kept the original of the deposit slips and a separate ledger for each account of every depositor. In this ledger were entered the deposits and withdrawal during the month, arranged according to the dates of the transactions. Said entries were taken from the original deposit slips in its possession. "In the case of Mr. Santos, the deposit slips prepared by the accused indicated the account number to be credited with the amount of each deposit and the check used in withdrawing from the deposits likewise carried the account number to be debited with the amount of the check. These ledgers were prepared in duplicate, and the bank sent the duplicate to the depositor after the end of each month. In this manner, the depositor could check the duplicate deposit slips in his possession with the entries in the duplicate ledger received by him monthly to determine whether or not correct entries of the deposits and withdrawals were made. "The accused, at first, proved to be loyal, faithful and trustworthy a secretary and confidant as his employer wished and thought him to be. Later on, however, he was tempted to use part of the money entrusted to him. Probably, he expected to replace it before his dishonesty was discovered. However, the temptation to use more of the money entrusted to him was stronger than his will to replace the amounts he abstracted. Hence, the amount he stole grew bigger and bigger until he realized that it was only a question of time when his crime would be discovered. "Sometimes, he deposited a smaller amount than that he received from his employer. At times, he did not deposit anything at all, although he received money for deposit. "To hide his crime, the accused used to falsify duplicate deposit slips which he showed to Mr. Santos. And when he received the monthly customers ledger, he likewise falsified a duplicate monthly customers ledger, entering in the falsifi ed ledger the correct amount he received from Mr. Santos for deposit in place of the amount he actually deposited. It was this falsified ledger which the accused showed to Mr. Santos monthly. It is obvious that Mr. Santos could not detect any defalcation if he relied solely on the falsified duplicate deposit slips and falsified duplicate customers monthly ledgers."cralaw virtua1aw library Appellant does not dispute that a number of duplicate deposit slips and monthly bank statements, supposed to have been submitted by him to complainant Roman Santos, were found to be falsified. What he is contesting here is the lower courts fin ding that he, appellant, authored such falsifications, which conclusion, he claims, is not supported by the evidence. This allegation is without merit. We found established, through the testimony of prosecution witnesses, that when he deposited money for the accounts of complainant Roman Santos, Accused-appellant used to prepare two deposit slips one, the original, to be submitted to the bank, and the other to be shown to Don Roman and later to be kept in his file; 1 that the accused himself picked up the monthly bank statements of Roman R. Santos, 2 which he would either withhold or destroy; that he would thereafter prepare in the bank machine after office hours, other statements indicating amounts he purportedly deposited, 3 although actually the deposits must have been for lesser amounts or no deposits were made at all (as later revealed by the original deposit slips and bank ledgers). It is true that not a single witness testified to having personally seen the accused in the act of falsifying the duplicate deposit slips or bank statements. But direct evidence on this point is not imperative. Considering that it was the accused-appellant who prepared the original and deposit slips; that there appeared discrepancies between the original deposit slips retained by the Prudential Bank and the duplicates thereof which were found by the auditors; that the amounts indicated in the originals were accordingly credited by the bank for the account of the depositor Roman R. Santos; that there were supposed duplicate deposit slips, duly signed by accused-appellant which contained forged initials of the bank-teller, or else not covered by any original slip at all; 4 that accused- appellant admitted, not only of having manipulated the records of his employer, but also of having been able, by that means, to abstract an undetermined amount from the funds of the latter 5 no other conclusion could be drawn from the foregoing facts than that the falsified documents were the ones prepared by appellant to hide his misdeeds. Even assuming these evidences to be circumstantial, they nevertheless constitute legal evidence 6 that may support a conviction, affording as they are basis for a reasonable inference of the existence of the fact thereby sought to be proved. 7 Contrary to appellants contention, there is even no necessity for all these duplicate deposit slips to be identified one by one, before they may properly be considered against the accused. These slips were not only bundled into a bunch and formally presented as Exhibit Q; they had also been consistently referred to as one of the bases of the prosecutions claim that the misappropriated amount totaled P400,086.19. As ruled by this Court in another criminal case, the absence of any record of the

formal presentation of certain exhibits does not render their consideration reversible error, if repeated references thereto in the course of the trial by counsel for the accused and of the court convincingly show that the documents were part of the prosecutions evidence. 8 No error, therefore, was committed by the trial court in giving due credence and weight to the depo sit slips (Exh. Q). Appellant also challenges the competence of 10 duplicate deposit slips which do not bear his signature, and urges that the amount covered thereof P233,744.63 should be deducted from the total amount covered by the duplicate deposit slips coming from the files of Don Roman Santos. We have gone over these 40 documents, and found the following:chanrob1es virtual 1aw library

One (1) deposit slip, dated July 21, 1953 for P13,283.07, Account No. 2; although unsigned by accused-appellant, this tallies with an original deposit slip retained by the Prudential Bank. The amount it covered was duly credited for the account of Roman R. Santos as per the bank ledger, Exhibit Y-8. Two (2) duplicates dated November 19, 1953, for P2,562.00 and P2,689.00, respectively (Account No. 4), are evidently genuine; they tally with the originals. The amount they covered were credited in favor of complainant Roman Santos (Exh. R-2b). One (1) duplicate dated September 8, 1953, for P8,762.07, for Account No. 2, tallies with the original (Exh, 6), and the amount covered thereby is duly credited for the account of complainant Santos. One (1) slip dated September 10, 1953, for P12,274.65 (Account No, 2), is supposed to be the duplicate of the original (Exh. Q-29). It is noted, however, that while in the original, the cash deposit was P1,535.20 which amount was accordingly entered in the bank ledger for the account of complainant Santos, in the purported duplicate, the cash deposit was placed only at P1,319.65. The total amount covered by this particular duplicate deposit slip (P12,274.48), is not deductible from the sum covered by all the duplicate deposit slips found in the possession of complainant Roman Santos, because it is clear that the said amount of P12,274.48 was actually received by the accused and in fact deposited by him in the bank. Nine (9) duplicates (Account No. 2), all dated June 17, 1954, for P5,523.78, P500.00, P1,000.00, P733.51, P564.25, P1,000.00, P974.57, P3,000,00, P3,058.84, respectively, tally with the originals left with the bank (Exh. 7), and the amounts thereby covered were duly credited in favor of complainant Santos (Exh. Z-10). It was noted that no signature also appears over the appellants typewritten name even in the originals submitted to the bank. Six (6) duplicate slips (Account No. 2) for P1,724.40, P1,509.20, P1,510.30, P1,485.75, P1,487.85 and P3,851.14, all dated October 13, 1954, are genuine duplicates of the originals in the possession of the Prudential Bank. It may be mentioned that where the duplicates are duly covered with original deposit slips, the number and denomination of the cash deposits made were noted in said original slips. Both original and duplicate slips of these deposits are not signed; the amount thus covered were duly credited to the complainant Santos (Exh. Z-14). One (1) duplicate slip dated November 9, 1954, for a deposit of P1,782.00; one of the several deposits made by the accused for the account of complainant Santos on the same day. Both the original and duplicate slips have no signature over the typewritten name of appellant. Amount covered thereby duly credited in favor of complainant (Exh. Z-16). Thirteen (13) unsigned duplicate deposit slips (Account No. 2), for P1,281.00, P1,374.45, P1,323.00, P1,416.96, P1,256.64, P1,346.40, P1,330.17, P1,438.00, P1,490.00, P1,201.00, P1,122.70, P1,747.27 and P1,235.52; respectively, formed part of a group of 25 deposit slips, all dated December 23, 1954. These 13 unsigned duplicates, however, have their corresponding originals in the custody of the bank, and the amounts they covered were duly credited to the account of complainant Santos. They are apparently genuine copies of the originals (Exh. Z16). One (1) duplicate deposit slip dated March 12, 1954 (Account No. 3) This slip was accomplished in handwriting, on the face of which was written diagonally: "Non-negotiable PBTC Teller No. 2 (True Copy)" ; the covered amount of P7,809.40 was duly credited in favor of the complainant. This is apparently a reconstructed duplicate of the original. One slip dated January 5, 1953, bearing the rubber stampmark on PBTC Teller No. 4, but without said tellers initials. No sign ature also appears over the typewritten name of the depositor "F. S. Tanjutco." This slip purportedly showed that a cash deposit of P2,034.15 and checks for P8,917.33 were made on that day. A checking of the bank entry for that day established that seven out of the eight checks specified in this duplicate deposit slip (PBTC Checks Nos. 12955, for P1,081.10; 12959 for P941.31; 12960 for P545.88; 12961 for P871.66; 12963 for P440.00; 12978 for P2,887.38, and 12979 for P150.00) were debited as withdrawals from the same Account No. 2 on January 5, 1954. Clearly, this supposed duplicate slip is falsified. Considering that by appellant s own

admission, he was able to cover up the shortages in the funds of his employer by manipulation of records and documents (see the testimonies of witnesses Amado S. Carlos, Felix Costa and Nazario L. Cruz), 9 the inclusion of the amount covered by this slip in the computation of the sum for which appellant is accountable, is justified. The very existence of this simulated deposit slip is sufficient proof that it was intended to be shown to complainant Roman Santos and thus escape detection by the latter of appellants defalcation of his (complainants) funds. Two (2) deposit slips purporting to be duplicates, but without the corresponding originals, dated December 16, 1954 and December 27, 1954 for P2,780.27 and P126,692.89, respectively, did not have appella nts signature; said amounts were not also reflected in the bank ledger as actual deposits made by appellant. Nevertheless, we have to sustain the inclusion of these amounts in the computation of the money under appellants accountability for the same reas on as that given in the discussion of the preceding item. These 40 duplicate deposit slips were admitted by the Court below, not to prove falsification, but only to establish the fact that accused-appellant has received money to be deposited for the account of his employer, and determine the exact amount thus received. The relevancy of these documents to prove the fact is not affected by the absence of appellants signature thereon. In the first place, having been passed upon and favorably considered by the trial court, the matter of relevancy of these documents ordinarily cannot be reviewed on appeal. This lies within the sound discretion of said court and deserves the respect of the appellate tribunal. 10 Secondly, most of the amounts covered by these 40 deposit slips are sufficiently backed by the original deposit slips and the bank ledgers. And, there is no showing that the figures indicated in both the original and duplicate slips are separately treated or that the amount thus covered is included twice in the summing up of the missing amounts. As regards those without corresponding originals, we have given the reason for their inclusion in the total sum for which appellant is accountable, in our discussion of those individual items. Furthermore, it appearing that even some of the original deposit slips delivered to the bank do not bear appellants signature, the absence alone of such signature is no indication that the 40 duplicate slips in q uestion were not in fact prepared by him. Appellant likewise assails the admissibility of entries appearing in the ledgers of the Prudential Bank (Exh. W, W-1 to W-4, X, X-1 to X-6, Y, Y-1 to Y-13, Z, Z-1 to Z-18, TT, TT-1 to TT-5), of the bank statements from its file (Exh. R, R-1 to R-5), and the monthly bank statements taken from the files of complainant Roman Santos (Exh. S, S-1 to S-3), claiming that under the prosecutions theory, 11 the best evidence to prove his guilt would be the original slips and their duplicates. There is no merit to the contention. It must be remembered that the prosecution had to prove the amount allegedly embezzled by the accused. This, the prosecution tried to do by establishing the amounts received by the accused-appellant and company it with those deposited in the bank; the resulting difference being treated as the amount abstracted from the funds of the complainant. Under this theory, the ledgers and bank statements naturally are not just secondary, but the primary evidence of the deposits made, while the monthly bank statements found in the files of complainant Roman Santos which were supposed to confirm the amounts he had ordered the accused- appellant to be deposited, are the best evidence of the amounts actually entrusted to the latter. Consequently, the trial court committed no error in ruling in favor of the admissibility of the above-mentioned exhibits. We also find as untenable appellants allegation that there was no "positive, direct evidence" to show that the monthly bank statements found in the file of the complainant were the same documents delivered by him to the latter. By urging in his Fifth Assignment of Error the deduction from the total sum covered by all the duplicate deposit slips coming from the files of complainant, of the amounts covered by the 40 unsigned deposit slips, claiming that the resulting difference is the "correct total amounts covered by duplicate deposit slips for which accused can be held liable" (p. 27, appellants brief), said accused -appellant in fact acknowledged that these duplicate deposit slips were the ones delivered by him to complainant Santos. Neither would it be accurate to say that the decision of the lower court was based solely on the alleged hearsay report of the auditing firm of Costa & Cruz (Exh, P). Said court, in its decision, stated:jgc:chanrobles.com.ph "The auditors Costa and Cruz found that the accused manipulated only accounts Nos. 2, 3, and 4. As stated above, he at various times deposited less than what he received for deposit and at times he did not deposit anything at all but simply used the entire amount he received for deposit. To cover up for his criminal act and in order to avoid detection especially when he feared that Don Roman Santos might make a big withdrawal, the accused also resorted to transferring of funds of Don Roman from his fixed deposits to his current account. The report of the auditors (Exh. P) is clear and the evidence introduced in Court in support of their report and the testimony of Mr. Costa convinced the Court of the correctness of the figures arrived at by them." (Decision, pp. 89) In other words, the lower court gave due weight to the report of the auditors because it was found to be clear and duly supported by testimonial and documentary evidence (monthly bank accounts, bank statements, deposit slips the materiality and relevancy

of

which

were

already

here

sustained)

presented

during

the

trial,

to

which

conclusion

we

fully

agree.

After going with the evidence on record, the court below concluded that the accused had defalcated out of the money delivered to him for deposit in the bank, the following amounts:chanrob1es virtual 1aw library I. a. (Exhibit 1954 1955 P149,866.47 b. (Exhibit 1953 1954 P27,519.06 c. (Exhibit 1953 1954 Total Nos. II. a. Schedule b. 220.00 TOTAL SHORTAGES F/d Interest shortage 2, from F/d I No. FIXED of 3 DEPOSIT:chanrob1es No. Notation 208 Accounts & virtual 182 1aw P 198,725.83 Account No. No. 4 III) 23,733.87 P222,459.70 P399,845.23 4 library 12/27/54 P20.96 1/20/54 240.96 P400,086.19 Account No. No. 3 II) P14,405.05 13,114.01 Deficiency from:chanrob1es Account No. virtual No. 1aw library 2 I) P134,105.89 15,760.58

========= Appellant maintains that the amount he misappropriated could not have exceeded P50,000.00. But this allegation is not only unsupported by any corroborative evidence, but is in itself uncertain, appellant having admitted in court that he never kept any record of the sums he abstracted from the funds of the complainant, and that the amount of P50,000.00 was only his estimate (t.s.n., p. 2114, hearing of Feb. 24, 1964). Such bare testimony indeed cannot overcome the prosecutions proof that the unaccounted amount, for which appellant is answerable, totalled P400,086.19. Finally, making capital of the acceptance by complainant of properties belonging to the accused and his relatives allegedly assigned to the former for the settlement of his obligations, Accused- appellant claims that there had been novation of the relationship between him and the said complainant, resulting in the obliteration or extinction of his criminal liability. This argument is anchored on the alleged recognition by this Court of the novation theory (to extinguish criminal liability) in the case of People v. Nery, G.R. No. L-19567, February 5, 1964. Reliance on the aforecited Nery case, in support of the contention that the acceptance by complainant of payment converted the liability of the accused-appellant into a civil obligation or else that it estopped said complainant from proceeding with the prosecution of the case, is misplaced and unwarranted. Firstly, in the Nery case, which is an action for estafa, there was contractual relationship between the parties that can be validly novated by the settlement of the obligation of the offender. Whatever was said in that case, therefore, cannot be invoked in the present case where no contractual relationship or bilateral agreement, which can be modified or altered by the parties, is involved. There is here merely a taking o f the complainants property by one who never acquired juridical possession thereof, qualified by grave abuse of confidence. Secondly, it is inaccurate to say unqualifiedly that the theory that payment can obliterate or extinguish criminal liability was upheld in the Nery case. On the contrary, it was there explicitly said:jgc:chanrobles.com.ph "It may be observed in this regard that novation is not one of the means recognized by the Penal Code whereby criminal liability can be extinguished; hence, the role of novation may only be to either prevent the rise of criminal liability or to cast doubt on the true nature of the original basic transaction, whether or not it was such that its breach would not give rise to penal responsibility, as when money loaned is made to appear as a deposit, or other similar disguise is resorted to (cf. Abeto v. People, 90 Phil. 58; U. S. v. Villareal, 27 Phil. 481). "Even in Civil Law the acceptance of partial payments, without further change in the original relation between the complainant and the accused, cannot produce novation. For the latter to exist, there must be proof of intent to extinguish the original relationship, and such intent cannot be inferred from the mere acceptance of payments on account of what is totally due. Much less can it be said that the acceptance of partial satisfaction can effect the nullification of a criminal liability that is fully matured, and already in the process of enforcement. Thus, this Court has ruled that the offended partys acceptance of a promissory note for all or part of the amount misapplied does not obliterate the criminal offense. (Camus v. Court of Appeals, 48 O. G. 3898)."cralaw virtua1aw library Assuming, therefore, that there was partial payment 12 by the accused- appellant of the amount he misappropriated, that would not have sufficed to bar the filing and prosecution of the criminal case for qualified theft against him, considering that he concedes having actually used money belonging to his employer although in an amount less than P400,086.19. Furthermore, it may be mentioned that the mother and sister of accused-appellant, before the criminal case here was filed, instituted in the Court of First Instance of Pampanga an action for annulment of the deeds of assignment of their properties (Civil Case No. 875) on the ground that they were induced to execute the same through fraud and deceit. In view of our ruling on the foregoing issue, the outcome of this annulment-case will certainly not affect the accused-appellants liability for the crime he had committed. WHEREFORE, finding no error in the decision appealed from, the same is hereby affirmed, in all respects, with costs against the Appellant. Dizon, Makalintal, Bengzon, J.P., Zaldivar, Sanchez, Castro, Angeles and Fernando, JJ., concur.

[G.R.

No.

L-40195.

May

29,

1987.]

VICTORIA R. VALLARTA, Petitioner, v. THE HONORABLE COURT OF APPEALS and THE HONORABLE JUDGE FRANCISCO LLAMAS, Pasay City Court, Respondents. Francisco G.H. Salva for petitioner.

DECISION

CORTES, J.:

The petitioner seeks a reversal of the Court of Appeals decision dated December 13, 1974 affirming the Trial Courts judgment convicting her of estafa. We denied the petition initially but granted a motion for reconsideration and gave the petition due course. As found by the trial court and the Court of Appeals, Rosalinda Cruz, the private offended party, and accused Victoria Vallarta are long time friends and business acquaintances. On November 20, 1968, Cruz entrusted to Victoria Vallarta seven pieces of jewelry. In December of the same year, Vallarta decided to buy some items, exchanged one item with another, and issued a post-dated

check in the amount of P5,000 dated January 30, 1969. Rosalinda Cruz deposited said check with the bank. However, upon presentment, the check was dishonored and Cruz was informed that Vallartas account had been closed. Cruz apprised Vallarta o f the dishonor and the latter promised to give another check. Later, Vallarta pleaded for more time. Still later, she started avoiding Cruz. Hence, this criminal action was instituted. Based on the foregoing facts, both the trial court and the Court of Appeals found Vallarta guilty beyond reasonable doubt of the crime of estafa. WE affirm.

Petitioner is charged under Art. 315 (2) (d) as amended by Rep. Act No. 4885, of the Revised Penal Code, which penalizes any person who shall defraud another" (b)y postdating a check, or issuing a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check."cralaw virtua1aw library By virtue of Rep. Act No. 4885," (t)he failure of the drawer of the check to deposit the amount necessary to cover his check within three (3) days from receipt of notice from the bank and or the payee or holder that said check has been dishonored for lack or insufficiency of funds" is deemed prima facie evidence of deceit constituting false pretense or fraudulent act. To constitute estafa under this provision the act of postdating or issuing a check in payment of an obligation must be the efficient cause of defraudation, and as such it should be either prior to, or simultaneous with the act of fraud. The offender must be able to obtain money or property from the offended party because of the issuance of a check whether postdated or not. That is, the latter would not have parted with his money or other property were it not for the issuance of the check. Likewise, the check should not be, issued in payment of a pre-existing obligation (People v. Lilius, 59 Phil. 339 [1933]). In seeking acquittal, petitioner stresses that the transaction between her and Cruz was a "sale or return," perfected and consummated on November 20, 1968 when the seven pieces of jewelry were delivered. The check issued in December 1968 was therefore in payment of a pre-existing obligation. Thus, even if it was dishonored petitioner claims that she can only be held civilly liable, but not criminally liable under Art. 315 (2) (d), Revised Penal Code. She also argues that at any rate, what prompted Cruz to deliver the jewelry was the social standing of petitioner Vallarta and not the postdated check.cralawnad She thus assigns as errors the finding of the Court a quo that the jewelries were entrusted on November 20, 1968, but the sale was perfected in December 1968, and the finding that there was deceit in the issuance of the postdated check. In order to arrive at the proper characterization of the transaction between Vallarta and Cruz, that is, whether it was a "sale or return" or some other transaction, it is necessary to determine the intention of the parties. The following excerpts from the transcript of stenographic notes are significant:chanrob1es virtual 1aw library I. Q: Direct Now, what Examination happened of with that Rosalinda business Cruz:chanrob1es transaction of virtual yours with 1aw Mrs. library Vallarta?

A: After that and after she finally agreed to buy two sets and changed the ruby ring with another ring, she gave me postdated check; I waited for January 30, 1969. I deposited the check in the Security Bank. And after that I knew (learned) that it was closed account (TSN, June 29, 1972, p. 9) (Emphasis supplied). II: Cross-Examination of Rosalinda Cruz.

Q: Now, you mentioned about certain jewelries in Exh. "A." Could you tell under your oath whether all the jewelries listed here (Exh. "A") were taken by Mrs. Vallarta at one single instance? A: Yes, Sir. It was on one (1) day when I entrusted them to her so she can select what she wants (Id. at p. 22) ( Italics supplied). III. Cross-Examination of Rosalinda Cruz

COURT: But could you still recall or you cannot recall whether you agreed to reduce the cost to Five Thousand Eight Hundred (P5,800.00) Pesos?

A Yes, Sir. I agreed to reduce it to Five Thousand Eight Hundred (P5,800.00) Pesos, Sir, when I went to see her in her house to finalize what jewelries she wanted (Id. at p. 26). Note that Vallarta changed the ruby ring because it was not acceptable to her, and chose another ring. Likewise, the price to be paid for the jewelry was finally agreed upon only in December 1968. Thus, there was a meeting of the minds between the parties as to the object of the contract and the consideration therefore only in December 1968, the same time that the check was issued. The delivery made on November 20, 1968 was only for the purpose of enabling Vallarta to select what jewelry she wanted.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Properly, then, the transaction entered into by Cruz and Vallarta was not a "sale or return." Rather, it was a "sale on approval" (also called "sale on acceptance," "sale on trial," or "sale on satisfaction" [CIVIL CODE, art. 1502]). In a "sale or return," the ownership passes to the buyer on delivery (CIVIL CODE, art. 1502). (The subsequent return of the goods reverts ownership in the seller [CIVIL CODE, art. 1502]). Delivery, or tradition, as a mode of acquiring ownership must be in consequence of a contract (CIVIL CODE, art, 712], e.g. sale. If there was no meeting of the minds on November 20, 1968, then, as of that date, there was yet no contract of sale which could be the basis of delivery or tradition. Thus, the delivery made on November 20, 1968 was not a delivery for purposes of transferring ownership the prestation incumbent on the vendor. If ownership over the jewelry was not transmitted on that date, then it could have been transmitted only in December 1968, the date when the check was issued. In which case, it was a "sale on approval" since ownership passed to the buyer. Vallarta, only when she signified her approval or acceptance to the seller, Cruz, and the price was agreed upon. Thus, when the check which later bounced was issued, it was not in payment of a pre-existing obligation. Instead the issuance of the check was simultaneous with the transfer of ownership over the jewelry. But was the check issued simultaneously with the fraud? Republic Act No. 4885, amending Art. 315 (2) (d), Revised Penal Code, establishes a prima facie evidence of deceit upon proof that the drawer of the check failed to deposit the amount necessary to cover his check within three (3) days from receipt of notice of dishonor for lack or insufficiency of funds. Admittedly, (1) the check was dishonored as Vallartas account had been earlier closed; (2) she was notified by Cruz of the dishonor: and, (3) Vallarta failed to make it good within three days. Deceit is therefore presumed. Petitioner lays stress on her being an alumna of a reputable school, on her having a husband who is a bank manager, and on the big land-holdings of her father, and argues that it was these qualifications and not the post-dated check which prompted Cruz to deliver the jewelry (Rollo, pp. 78-79: Motion for Reconsideration, pp. 10-11). Hence, there was no deceit. It is thus suggested that a person of petitioners social standing cannot be guilty of deceit, at least in so far as issuing bouncing checks is concern ed. This reasoning does not merit serious consideration. If accepted, it could result in a law that falls unequally on persons depending on their social position. Did Cruz part with the jewelry solely because she knew Vallarta to be rich, or did she do so because of the check issued to her? As the trial court and the Court of Appeals found, petitioner was able to obtain the jewelry because she issued the check. Her failure to deposit the necessary amount to cover it within three days from notice of dishonor created the prima facie presumption established by the amendatory law, Rep. Act No. 4885, which she failed to rebut. Petitioner, however, contends that Rep. Act No. 4885 is unconstitutional. She claims that even as the presumption of deceit established by Rep. Act No. 4885 is stated under the guise of being prima facie. It is in effect a conclusive presumption, because after the prosecution has proved that: (1) the check has been dishonored; (2) notice has been given to the drawer; and, (3) three days from notice, the check is not funded or the obligation is not paid, the accused is held guilty. Thus, it is alleged, the constitutional presumption of innocence is violated.chanrobles.com : virtual law library Contrary to petitioners assertion, the presumption of deceit under Rep. Act No. 4885 is not conclusive. It is rebuttable. For instance, We ruled in the case of People v. Villapando (56 Phil. 31[1931]) that good faith is a defense to a charge of estafa by postdating a check, as when the drawer, foreseeing his inability to pay the check at maturity, made an arrangement with his creditor as to the manner of payment of the debt. * Moreover, it is now well settled that "there is no constitutional objection to the passage of a law providing that the presumption of innocence may be overcome by a contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence" (People v. Mingoa, 92 Phil. 856 [1953] at 858-59, citing I

COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS, 639-641). And the "legislature may enact that when certain facts have been proved they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be a rational connection between the facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience" (People v. Mingoa, supra. See also US v. Luling, 34 Phil. 725 [1916]). There can be no doubt that the "postdating or issuing of a check in payment of an obligation when the offender had no funds in the bank, or his funds deposited therein were not sufficient to cover the amount of the check," is a false pretense or a fraudulent act. It is so characterized by Art. 315 (2) (d), Revised Penal Code. Republic Act No. 4885 does nothing more than limit the period within which the drawer/issuer must pay the creditor. Petitioner also argues that Rep. Act No. 4885 violates the constitutional injunction against imprisonment for non-payment of debt. Ironically, she does not question the constitutionality of Art. 315 (2) (d), Revised Penal Code, which defines the crime she is being accused of, and provides for its punishment. In fact, she concedes the constitutionality of the latter statute. She further concedes that a person may be imprisoned for "criminal fraud" covered by Art. 315 (2) of the Revised Penal Code. In People v. Sabio (No. L-45490, November 20, 1978, 86 SCRA 568), this Court ruled that Rep. Act No. 4885 has not changed the rule established in Art. 315 (2) (d) prior to the amendment; that Republic Act No. 4885 merely established the prima facie evidence of deceit, and eliminated the requirement that the drawer inform the payee that he had no funds in the bank or the funds deposited by him were not sufficient to cover the amount of the check. Thus, even with the amendment introduced by Rep. Act No. 4885 it is still criminal fraud or deceit in the issuance of a check which is made punishable under the Revised Penal Code, and not the non-payment of the debt.chanrobles virtual lawlibrary Petitioner also assigns as error the denial by the trial court of her motion for reconsideration. Her motion was directed at the finding of the trial court that no payments were made. Alleging that a check drawn by one Sison was given by petitioner to Cruz in payment of the rubber check, petitioner claims that had her motion for reconsideration been granted, she would have called to the witness stand the Branch Manager of Security Bank and Trust Company, Pasay City, where the check was allegedly deposited by Cruz, for said bank manager to identify the owner-holder of the savings account to which the amount in Sisons check had be en credited (Brief for Petitioner, p. 46). Granting that the bank managers testimony would have been as alleged by petitioner, Our decision would remain. As correctly observed by both the trial court and the Court of Appeals (Court of Appeals Decision, pp. 2-3), the payments petitioner allegedly made were not shown to have any relevance to the obligation in question. WHEREFORE, finding no error in the assailed decision of the Court of Appeals, the same is AFFIRMED. Costs against the petitioner. SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Gancayco, Padilla, Bidin and Sarmiento, JJ., concur. Feliciano, J., on leave.

[G.R.

No.

L-43955-56.

July

30,

1979.]

RENATO LAZATIN alias RENATO STA. CLARA, Petitioner, v. HONORABLE JUDGE JOSE C. CAMPOS, JR., NORA L. DE LEON, BERNARDO DE LEON, ARLENE DE LEON and IRMA L. VELOSO, Respondents. Ernesto Jose W. T. Diokno Law Zshornack, Office private Jr. respondents the for Petitioner. Leons.

Arturo E. Balbastro for privates respondent Veloso.

DECISION

TEEHANKEE, J.:

The Court dismisses the petition which seeks to overrule respondent judges orders declaring that petitioner has failed to es tablish by competent evidence his alleged status as an adopted child of the deceased Lazatin spouses and prays for judgment of this Court "declaring as established the fact of (his) adoption as a son of the deceased spouses entitling him to succeed in their estates as such." Respondent judge correctly ruled that he could not allow petitioner (who had filed a motion to intervene in the proceedings to probate the will of the late Margarita de Asis Vda. de Lazatin and to settle her estate as her adopted son, after having earlier filed a motion to intervene in the intestate proceedings of her pre-deceased husband as his admitted illegitimate [not natural] son), over the opposition of private respondents, to introduce evidence that he had "enjoyed .. the status of an adopted child of the said spouses" without his first producing competent and documentary proof that there had been judicial proceedings for his legal adoption by the said spouses which resulted in the final judgment of a competent court decreeing his adoption.chanrobles.com:cralaw:red On January 13, 1974, Dr. Mariano M. Lazatin died intestate in Pasay City, survived by his wife, Margarita de Asis, and his adopted twin daughters, respondent Nora L. de Leon, married to respondent Bernardo de Leon, and respondent Irma Lazatin, married to Francisco Veloso. One month after Marianos death, his widow, Margarita de Asis, commenced an intestate proceeding before the Court of First Instance of Pasay, docketed as Sp. Proc. No. 2326-P. Mariano, Oscar, Virgilio and Yvonne, claiming to be admitted illegitimate (not natural) children of Dr. Lazatin with one Helen Muoz, intervened. Subsequently, one Lily Lazatin also intervened, claiming to be

another

admitted

illegitimate

(not

natural)

child.

Two months after or on April 11, 1974, the widow, Margarita de Asis, also died, leaving a holographic will executed on May 29, 1970, providing, among others, for a legacy of cash, jewelry, and stocks to respondent Arlene de Leon, a granddaughter; a legacy of support to Rodolfo Gallardo, a son of her late sister; and a legacy of education to Ramon Sta. Clara, son of petitioner Renato Lazatin alias Renato Sta. Clara. During her lifetime, Margarita de Asis kept a safety deposit box at the Peoples Bank and Trust Company, Roxas Boulevard bran ch, which either she or respondent Nora L. de Leon could open. Five days after Margaritas death, respondent Nora L. de Leon, accompanied by her husband, respondent Bernardo de Leon, opened the safety deposit box and removed its contents: (a) shares of stock; (b) her adoption papers and those of her sister, respondent Irma L. Veloso; and (c) jewelry belonging to her and to her mother. Respondent Nora L. de Leon claims that she opened the safety deposit box in good faith, believing that it was held jointly by her and her deceased mother. Her sole reason for opening the box was to get her stock certificates and other small items deposited therein. When she was to close the deposit box, the bank personnel informed her that she needed an authority from the court to do so, in view of her mothers death and so, she removed everything from the box.chanrobles lawlibrary : rednad On June 3, 1974, private respondents filed a petition to probate the will of the late Margarita de Asis, before docketed as Sp. Proc. No. 2341-P of respondent Court. Days after having learned that respondent Nora L. de Leon had opened this safety deposit box, petitioners son, Ramon Sta. Clara, filed a motion in the probate court, claiming that the deceased had executed a will subse quent to that submitted for probate and demanding its production. He likewise prayed for the opening of the safety deposit box. Respondent Nora L. de Leon admitted that she opened the box but there was no will or any document resembling a will therein. Upon the order of the probate court, presided over by Judge Arsenio B. Alcantara, the safety deposit box was opened on November 6, 1974, at which time it was found to be empty, because prior thereto respondent Nora L. de Leon had already removed its contents. On November 22, 1974, or seven months after the death of Margarita de Asis, petitioner intervened for the first time in the proceedings to settle the estate of the late Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P), as an admitted illegitimate (not natural) child. Under the same date of November 22, 1974, petitioners son, Ramon, filed a petition in the estate proceedings of Margarita de Asis to examine private respondents on the contents of the safety deposit box. Whereupon, on January 31, 1975, the probate court ordered respondent Nora L. de Leon to deliver the properties taken from the safety deposit box to the Clerk of Court. Subsequently, however, the two cases (Sp. Proc. No. 2326-P, Mariano Lazatin, and 2341-P, Margarita de Asis) were transferred to the sala of respondent Judge Jose C. Campos, Jr. On May 29, 1975, Judge Campos issued an order requiring counsel for respondents Nora L. de Leon and Bernardo de Leon to produce all those papers and items removed from the safety deposit box and to deliver the same to the custody of the court within one week. Within the period ordered, respondent Nora L. de Leon deposited with the Clerk of Court, not the items themselves, but two keys to a new safety deposit box which could only be opened upon order of the court. On August 20, 1975, petitioner Renato Lazatin alias Renato Sta. Clara filed a motion to intervene in the estate of Margarita de Asis, Sp. Proc. No. 2341-P, as an adopted child, on the basis of an affidavit executed by Benjamin Lazatin, brother of the deceased Dr. Mariano M. Lazatin, that petitioner was an "illegitimate son" of Dr. Lazatin and was later adopted by him. This affidavit was later modified on August 19, 1975 to state that petitioner was adopted by both Mariano M. Lazatin and his wife Margarita de Asis. On September 29, 1975, Judge Campos found respondent Nora L. de Leon guilty of contempt of court for not complying with the orders of January 31, 1975 and May 29, 1975, requiring her to produce and deliver to the court all the papers and items removed from the safety deposit box. Her former counsel was also found guilty of contempt, sentenced to pay a fine of P100.00 and suspended from appearing in the two cases (Sp. Proc. No. 2326-P, Mariano M. Lazatin, and Sp. Proc. No. 2341-P, Margarita de Asis), on her testimony that she, Nora L. de Leon, acted upon his advice.chanrobles lawlibrary : rednad Respondent court heard petitioners motion to intervene as an adopted son in the estate of Margarita de Asis, Sp. Proc. No. 2 341P, at which hearings petitioner presented no decree of adoption in his favor. Instead, petitioner attempted to prove, over private respondents objections, that he had recognized the deceased spouses as his parents: he had been supported by them until thei r death; formerly he was known as "Renato Lazatin" but was compelled to change his surname to "Sta. Clara" when the deceased spouses refused to give consent to his marriage to his present wife; that at first, he and his wife stayed at the residence of Engracio de Asis, father of Margarita, but a few months later, they transferred to the Mercy Hospital at Taft Avenue, Manila, owned by the deceased spouses, where they continuously resided up to the present. Photographs were also intended to be

presented by petitioner, e.g., photograph of Irma Veloso where she addressed herself as sister of petitioner; photograph of deceased Margarita de Asis and petitioner when he was a boy; document showing that petitioners real name is "Renato Lazatin. " 1 Respondent court first reserved its ruling on private respond ents objections to the admission of petitioners evidence, but on November 14, 1975, when petitioner could not present evidence on the issue of his alleged legal adoption, respondent court discontinued the hearing and gave the parties time to file memoranda on the question of the admissibility of the evidence sought to be introduced by petitioner. On March 4, 1976, respondent court barred the introduction of petitioners evidence because:jgc:chanrobles.com.ph "All the evidence submitted by Renato and Ramon Sta. Clara through their counsel do not prove or have no tendency to prove the existence of any judicial proceeding where the adoption of the parties above named were taken up by any court. Neither do the evidence tend to establish the presence of any record of a proceeding in court where the adoption of the above named persons was held. The evidence, however, tends to prove a status of a recognized natural child which however, is not the legal basis for which Renato and Ramon seek to intervene in this proceedings. In view thereof, and taking into consideration the evidence heretofore presented by the petitioners, any further introduction of similar evidence, documentary or oral, would not prove or tend to prove the fact of their adoption but rather of a recognized natural child."cralaw virtua1aw library Petitioner then filed on March 16, 1976, in both cases, a motion to declare as established the fact of adoption in view of respondent Nora L. de Leons refusal to comply with the orders of respondent cour t to deposit the items she had removed from the safety deposit box of Margarita de Asis. As authority therefor, petitioner invokes the sanction of Rule 29, Section 3 of the Rules of Court, since according to him, the order of the court for the production of the items in the safety deposit box can be considered as an order for production and inspection of documents under Rule 27.cralawnad Private respondents opposed the motion, and on March 26, 1976, respondent court denied petitioners motion. On April 26, 1976, respondent Nora L. de Leon deposited with respondent court the items she had removed from the safety deposit box. An inventory was conducted by respondent court, with notice to the parties, and the items surrendered consisted only of pieces of jewelry and stock certificates. On June 3, 1976, respondent court, ruling on petitioners motion for definite resolution on his previous motion to declare as established the fact of adoption, issued the following order:jgc:chanrobles.com.ph "As far as the case of Renato Sta. Clara is concerned and his Petition to establish his status as an adopted child, the Court has ruled that he has failed to establish such status. The Court denies any motion for reconsideration unless based on some documentary proof."cralaw virtua1aw library Hence, We find the ruling of the the respondent court petition to be in conformity at with law and bar. jurisprudence.

1. Adoption is a juridical act, a proceeding in rem, 2 which creates between two persons a relationship similar to that which results from legitimate paternity and filiation. 3 Only an adoption made through the court, or in pursuance with the procedure laid down under Rule 99 of the Rules of Court is valid in this jurisdiction. 4 It is not of natural law at all, but is wholly and entirely artificial. 5 To establish the relation, the statutory requirements must be strictly carried out, otherwise, the adoption is an absolute nullity. 6 The fact of adoption is never presumed but must be affirmatively proved by the person claiming its existence. The destruction by fire of a public building in which the adoption papers would have been filed if existent does not give rise to a presumption of adoption nor is the destruction of the records of an adoption proceeding to be presumed. On the contrary, the absence of a record of adoption has been said to evolve a presumption of its non-existence. 7 Where, under the provisions of the statute, an adoption is effected by a court order, the records of such court constitute the evidence by which such adoption may be established. 8 2. Petitioners flow of evidence in the case below does not lead us to any proof of judicial adoption. We can not pluck from his chain of evidence any link to the real existence of a court decree of adoption in his favor. Petitioners proofs do not show or tend to show that at one time or another a specific court of competent jurisdiction rendered in an adoption proceeding initiated by the late spouses an order approving his adoption as a child of the latter. No judicial records of such adoption or copies thereof are presented or attempted to be presented. Petitioner merely proceeds from a nebulous assumption that he was judicially adopted between the years 1928 and 1932. By what particular court was the adoption decreed or by whom was the petition heard, petitioner does not even manifest, much less show. There are no witnesses cited to that adoption proceeding or to the adoption

decree. Apparently on the assumption that the adoption was commenced in Manila, petit ioners counsel secured a certification from the Court of First Instance of Manila which, however, negatively reported" (T)hat among the salvaged records now available in this Office, there has not been found, after a diligent search, any record regarding the adoption of Mr. Renato Lazatin alias Renato Sta. Clara allegedly filed sometime in the years 1928 to 1931 by the spouses Dr. Mariano M. Lazatin and Margarita de Asis de Lazatin." The certification of the Local Civil Registrar of Manila" (T)hat our pre-war records relative to decisions of the Court of First Instance were either destroyed or burned during the Liberation of the City of Manila," does not furnish any legal basis for a presumption of adoption in favor of petitioner. This is because there was no proof that petitioner was really adopted in Manila or that an adoption petition was filed in the Court of First Instance of Manila by the deceased spouses, where, after hearing, a judgment of approval was rendered by said court. Moreover, if there was really such adoption, petitioner could have conveniently secured a copy of the newspaper publication of the adoption as required under Section 4, Rule 99 of the Rules of Court (formerly Section 4 Rule 100) or a certification of the publishing house to that effect. Petitioners failure on this point is another strong indication of the non-existence of the adoption paper. We also observed that the identity of the one who gave the written consent to the adoption (Section 3, Rule 99. Rules of Court), whether the parents or orphanage, does not appear in the trend of petitioners evidence. The collation of proof on this point is not so difficult and such proof must be presented if only to p rove the real existence of the adoption. And of course, if the adoption records were indeed destroyed or burned during the war, the clear right and duty of petitioner was to duly reconstitute the records as provided by law. 3. The absence of proof of such order of adoption by the court, as provided by the statute, cannot be substituted by parol evidence that a child has lived with a person, not his parent, and has been treated as a child to establish such adoption. 9 Even evidence of declaration of the deceased, made in his lifetime, that he intended to adopt a child as his heir, and that he had adopted him, and of the fact that the child resided with the deceased, as a member of his family, from infancy until he attained his majority, is not sufficient to establish the fact of adoption. 10 Nor does the fact that the deceased spouses fed, clothed, educated, recognized and referred to one like petitioner as an adopted child, necessarily establish adoption of the child. 11 Withal, the attempts of petitioner to prove his adoption by acts and declarations of the deceased do not discharge the mandatory presentation of the judicial decree of adoption. The thrust of petitioners evidence is rather to establish his status as an admitted illegitimate child, not an adopted child which status of an admitted illegitimate child was the very basis of his petition for intervention in the estate proceedings of the late Dr. Lazatin, as above stated. (Supra, at page 3 hereof) We do not discount though that declarations in regard to pedigree, although hearsay, are admitted on the principle that they are natural expressions of persons who must know the truth. 12 Pedigree testimony is admitted because it is the best that the nature of the case admits and because greater evil might arise from the rejection of such proof than from its admission. 13 But, in proving an adoption, there is a better proof available and it should be produced. The whereabouts of the childs family and circulati on of the jurisdiction in which they resided and investigation in those courts where adoption are usually granted would surely produce an adoption order, if indeed there was an order. 14 Besides, since the point in favor of receiving hearsay evidence upon matters of family history or pedigree is its reliability, it has been set forth as a condition upon which such evidence is received that it emanate from a source within the family. Pursuant to this view, before a declaration of a deceased person can be admitted to prove pedigree, or ancestry, the relationship of the declarant, by either of blood or affinity to the family in question, or a branch thereof, must ordinarily be established by competent evidence. 15 Section 33 of Rule 130 states: "The act or declaration of a person deceased, or outside of the Philippines, or unable to testify, in respect to the pedigree of another person related to him by birth or marriage, may be received in evidence where it occurred before the controversy, and the relationship between the two persons is shown by evidence other than such act or declaration . . .."cralaw virtua1aw library 4. Secondary evidence is nonetheless admissible where the records of adoption proceedings were actually lost or destroyed. But, prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution; loss; contents; although this order may be changed if necessary in the discretion of the court. 16 The sufficiency of the proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 17 "As earlier pointed out, petitioner failed to establish the former existence of the adoption paper and its subsequent loss or destruction. Secondary proof may only be introduced if it has first been established that such adoption paper really existed and was lost. This is indispensable. 18 Petitioners supposed adoption was only testified to by him and is allegedly to be testified to by a brother of the decease d Mariano M. Lazatin or others who have witnessed that the deceased spouses treated petitioner as their child. If adoption was really made, the records thereof should have existed and the same presented at the hearing or subsequent thereto or a reasonable explanation of loss or destruction thereof, if that be the case, adduced. 19 Assuming the mere fact that the deceased spouses treated petitioner as their child does not justify the conclusion that petitioner had been in fact judicially adopted by the spouses nor does it constitute admissible proof of adoption. We cannot entertain the plea of petitioner that the sanction of Rule 29 should be applied to consider as established the fact of his adoption due to the refusal of respondent Nora L. de Leon to produce the document of adoption, because first, the fact or real existence of petitioners adoption had not been established; second, there is no proof that such document of adoption is in t he

possession of respondent Nora L. de Leon; third, the motu proprio order of the court for Nora de Leon to produce the items retrieved from the safety deposit box cannot be treated as a mode of discovery of production and inspection of documents under Rule 27; and fourth, the items deposited in the safety deposit box have already been surrendered by respondent Nora L. de Leon on April 26; 1976 and no document of adoption in favor of petitioner was listed as found in the safety deposit box.chanroblesvirtualawlibrary 5. As a necessary consequence, petitioner Renato Lazatin alias Renato Sta. Clara cannot properly intervene in the settlement of the estate of Margarita de Asis, Sp. Proc. No. 2341-P as an adopted child because of lack of proof thereof. For one to intervene in an estate proceeding, it is a requisite that he has an interest in the estate, either as one who would be benefited as an heir or one who has a claim against the estate like a creditor. 20 A child by adoption cannot inherit from the parent by adoption unless the act of adoption has been done in strict accord with the statue. Until this is done, no rights are acquired by the child and neither the supposed adopting parent or adopted child could be bound thereby. 21 The burden of proof in establishing adoption is upon the person claiming such relationship. He must prove compliance with the statutes relating to adoption in the jurisdiction where the adoption occurred. 22 A fortiori, if no hereditary interest in the estate can be gained by a claimant who failed to submit proof thereof, whether the will is probated or not, intervention should be denied as it would merely result in unnecessary complication. 23 To succeed, a child must be legitimate, legitimated, adopted, acknowledged illegitimate natural child or natural child by legal fiction or recognized spurious child. 24 In the face of the verified pleadings of record (constituting judicial admissions) which show that petitioner sought to intervene on November 22, 1974 in the estate proceedings of his alleged adoptive father Dr. Mariano M. Lazatin (Sp. Proc. No. 2326-P) as an admitted illegitimate (not natural) child, 25 while his intervention on August 20, 1975 in the estate of Margarita de Asis, widow of the deceased Dr. Lazatin (Sp. Proc. No. 2341-P) was as her adopted child on the basis of the affidavit of a brother of the deceased Dr. Lazatin, Benjamin Lazatin, executed on August 19, 1975 (which affidavit modified a first affidavit executed on May 31, 1975, which failed to state by "oversight" that Dr. Lazatin and his wife had "jointly adopted" petitioner, but stated that affiant knew petitioner to be "an illegitimate son" of Dr. Lazatin who later "legally adopted (him) as a son before the Court of First Instance of Manila sometime between the years 1928 and 1931") and prescinding from the question of whether a natural or spurious child may be legally adopted by the putative father, we hold that no grave abuse of discretion nor error of law as committed by respondent judge in issuing the questioned orders of March 4, 1976, March 26, 1976 and June 3, 1976 denying petitioners petition "to declare as established in this proceeding the fact of adoption" and denying "any motion for reconsideration unless based on some documentary proof." The Court finds no basis to grant the affirmative relief sought in this proceeding by petitioner for a rendition of judgment "declaring as established the fact of your petitioners adoption as a son of the deceased spouses entitling him to succeed in their estates as such in accordance with the applicable law on succession as to his inheritance." chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph Upon the filing of the petition, the Court issued on June 16, 1976 a temporary restraining order; which as amended on July 21, 1976, restrained respondent judge "from proceeding with the hearing scheduled on June 17, 1976 at 8:30 a.m., requiring the submission of evidence to establish heirship in Special Proceedings No. 2326-P entitled Intestate Estate of the Late Mariano M. Lazatin and Special Proceedings No. 2341 -P, entitled Testate Estate of the late Margarita de Asis Vda. de Lazatin, and from proceeding with the probate of the alleged holographic will of the deceased Doa Margarita de Asis Vda. de Lazatin scheduled on June 29, 1976, August 10 and 12, 1976 and on any other dates ." With the Courts determination of the issues as herein set forth, there is no longer any need for restraining the proceedings below and the said restraining order shall be immediately lifted. On January 24, 1977, the Court upon petitioners motion reso lved to conditionally allow respondent judge "to take the deposition of petitioners witnesses to perpetuate their testimonies pursuant to Rule 134, Section 7 of the Rules of Court, subject to t he Courts ruling in due course on the admissibility of such t estimonies." The Court thereby permitted in effect the advance testimonies of petitioners witnesses, principally among them Rafael Lazatin and Esteban L. Lazatin, both brothers of the dec eased Dr. Mariano L. Lazatin and as stated in petitioners motion of January 11, 1977:jgc:chanrobles.com.ph "Substantially, the testimony of the above named witnesses will be on the fact that they had been informed by the deceased spouses, Mariano and Margarita Lazatin that your petitioner was their *Marianos and Margaritas+ judicially adopted son and to elicit further from them the fact that your petitioner enjoys the reputation of being their judicially adopted son in the Lazatin family."cralaw virtua1aw library The Courts resolution allowing the advance testimonies of petitioners witnesses was but in application of the Courts longstanding admonition to trial courts as reaffirmed in Lamagan v. De la Cruz 26 , "to be liberal in accepting proferred evidence since even if they were to refuse to accept the evidence, the affected party will nevertheless be allowed to spread the excluded evidence on the record, for review on appeal." The Court therein once again stressed the established rule that "it is beyond question that rulings of the trial court on procedural questions and on admissibility of evidence during the course of the trial are interlocutory in nature and may not be the subject of separate appeal or review on certiorari, but are to be assigned as errors and

reviewed in the appeal properly taken from the decision rendered by the trial court on the merits of the case," 27 and that a partys recourse when his proferred evidence is rejected by the trial court is to make a formal offer stating on the record w hat a party or witness would have testified to were his testimony not excluded, as well as to attach to the record any rejected exhibits.chanrobles virtual lawlibrary At the continuation of the proceedings below for declaration of heirship and for probate of the alleged holographic will of the deceased Margarita de Asis Vda. de Lazatin, petitioner who has failed to establish his status as an alleged adopted child of Margarita de Asis (unless, as reserved to him by the court below, he can show some documentary proof) and whose intervention in the estate of the deceased Dr. Mariano Lazatin is as an admitted illegitimate child, will have to decide whether he will pursue his first theory of having the status of such admitted illegitimate child of said deceased. Whatever be his theory and his course of action and whether or not he may be duly allowed to intervene in the proceedings below as such alleged admitted illegitimate child, his recourse in the event of an adverse ruling against him is to make a formal offer of proof and of his excluded evidence, oral and documentary, and seek a reversal on an appeal in due course.chanrobles.com : virtual law library ACCORDINGLY, the petition is dismissed and the questioned orders denying petitioners petition below" to declare as establish ed in this proceeding the fact of [his] adoption" are hereby affirmed. The temporary restraining order issued on June 16, 1976 and amended on July 21, 1976 is ordered lifted, effective immediately. Without costs. SO ORDERED. [G.R.

No.

83377.

February

9,

1993.]

BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA represented by GLICERIA PAPAFRANCISCO, Et Al., Petitioners, v. SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, Respondents. Pablo M. Gancayco, for Petitioners.

De Mesa, Villarica & Associates for Respondents.

SYLLABUS

1. REMEDIAL LAW; SECONDARY EVIDENCE WHEN ORIGINAL IS LOST OR DESTROYED; WHEN ADMISSIBLE. Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. 2. ALL DUPLICATES OR COUNTERPARTS MUST BE ACCOUNTED FOR BEFORE USING COPIES. However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like). In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies.

DECISION

CAMPOS, JR., J.:

This is a petition for review on certiorari of the decision ** of the Court of Appeals dated November 27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of Eustaquia de Vera-Papa, represented by Gliceria PapaFrancisco, and Heirs of Maria de Vera-Torres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and Leona V. Aguilar, defendants-appellants", which reversed the decision *** of the Regional Trial Court of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction of the original deed of sale and of all its duplicate original copies. The undisputed facts are as follows:chanrob1es virtual 1aw library

Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona, married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated at Camalig, Meycauayan, Bulacan, with an are of 4,195 square meters, designated as Cadastral Lot NO. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre. The disputed property was mortgaged by respondents Basilio and Felipe de Vera to a certain Atty. Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a deed of absolute sale dated February 11, 1956. On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been paying taxes on the land. On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of which Original Certificate of Title No. P-1356 (M) was issued in his name. On September 1, 1980, the respondents wrote to the respondents claiming that as children of Marcosa Bernabe, they were coowners of the property and demanded partition thereof on threats that the respondents would be charged with perjury and/or falsification. The petitioners also claimed that the respondents had resold the property to Marcosa Bernabe on April 28, 1959. On September 27, 1980, the respondents wrote in reply to the respondents that they were the sole owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe. True to respondents threat, they filed a falsification case against the respondents. However, on March 31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the charge of falsification of public document against the respondents for lack of a prima facie case. On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate of Title No. P-1356 (M). On July 31, 1985, the trial court rendered its decision **** the dispositive portion of which reads as follows:jgc:chanrobles.com.ph "WHEREFORE, 1. 2. 3. 4. SO To To To To judgment reconvey pay pay pay is hereby the plaintiffs plaintiffs rendered property ordering in P10,000.00 P5,000.00 P10,000.00 ORDERED." as defendants:chanrob1es question as as to litigation exemplary attorneys virtual the 1aw library plaintiffs; expenses; damages; fees. 1

In ruling in favor of the respondents, the trial court admitted, over the objection of the respondents, Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of land for and in consideration of P1,500.00.

Not contented with the decision, respondents appealed to the Court of Appeals contending that they never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents contended that since the petitioners have failed to produce the original of the alleged deed of sale dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have been excluded and should not have been accorded any evidentiary value. On the other hand, the petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly established by the testimony of the notary public before whom it was acknowledged and by Luis de Vera who was present during its execution and that the loss of the original document had been proven by the testimony of the representatives of the offices of the National Archives and the Provincial Assessor of Bulacan. On November 29, 1987, the Court of Appeals rendered its decision reversing the trial courts decision. It found that the loss or destruction of the original deed of sale has not been duly proven by the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged deed of sale is inadmissible. Hence this petition.

The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the original deed of sale so as to allow the presentation of the xeroxed copy of the same. We rule in the negative.

Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence states:jgc:chanrobles.com.ph "Sec. 4. Secondary evidence when original is lost or destroyed. When the original writing has been lost or destroyed, or cannot be produced in court, upon proof of its execution and loss or destruction, or unavailability, its contents may be proved by a copy, or by a recital of its contents in some authentic document, or by the recollection of witnesses."cralaw virtua1aw library Secondary evidence is admissible when the original documents were actually lost or destroyed. But prior to the introduction of such secondary evidence, the proponent must establish the former existence of the instrument. The correct order of proof is as follows: Existence; execution loss; contents although this order may be changed if necessary in the discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged lost deed lies within the judicial discretion of the trial court under all the circumstances of the particular case. 2 A reading of the decision of the trial court shows that it merely ruled on the existence and due execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale. In the case at bar, the existence of an alleged sale of a parcel of land was proved by the presentation of a xeroxed copy of the alleged deed of absolute sale. In establishing the execution of a document the same may be established by the person or persons who executed it, by the person before whom its execution was acknowledged, or by any person who was present and saw it executed or who, after its execution, saw it and recognized the signatures; or by a person to whom the parties to the instrument had previously confessed the execution thereof. 3 We agree with the trial courts findings that petitioners have sufficiently established the due execution of the alleged deed of sale through the testimony of the notary public to wit:jgc:chanrobles.com.ph "Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and Ismael Estela, in his capacity as Notary Public who ratified the document." 4 After the due execution of the document has been established, it must next be proved that said document has been lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any one who had made, in the judgment of the court, a sufficient examination in the place or places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost. 5 However, all duplicates or counterparts must be accounted for before using copies. For, since all the duplicates or multiplicates

are parts of the writing itself to be proved, no excuse for non-production of the writing itself can be regarded as established until it appears that all of its parts are unavailable (i.e. lost, retained by the opponent or by a third person or the like). 6 In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that the alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted for before secondary evidence can be given of any one. This petitioners failed to do. Records show that petitioners merely accounted for three out of four or five original copies. In reversing the trial court, the respondent Court of Appeals considered the following points:jgc:chanrobles.com.ph "Asked on the witness stand where the original of the document (Exhibit A) was plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in evidence (p. 11, tsn., August 11, 1981, Steno. Tecson). The same question propounded to the same witness at the next hearing, he replied that in the early part of 1976 his sister Maria borrowed from him the original document and a certified true copy thereof and brought them to the Office of the Register of Deeds in Malolos "for the purpose of having it registered;" and that when she returned she told him that the original copy of the document was submitted to that office "and it (the property) was transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn., December 10, 1981, Steno. Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno. Vallarta). Indeed, upon the appellees own evidence the original of the deed of sale in question, a purported xerox copy and certified t rue copy of which are marked Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the Register of Deeds of Malolos for registration. The appellees, therefore, should have asked that office to produce it in court and it if could not be produced for one reason or another should have called the Register of Deeds or his representative to explain why. That they failed to do. The loss or destruction of the original of the document in question has not, therefore, been established. Hence, secondary evidence of it is inadmissible . . . . Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have a copy of the deed of sale in question because his files were burned when his office at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November 10, 1981, Steno. Crisostomo) establish the loss or destruction of the original document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr. was but one of the duplicate original copies on file with him. Nor did the testimony of Hipolito Timoteo, representative of the Assessors Office of Bulacan, to the effect that he failed to see the deed of absolute sale annotated on the simple copy of tax declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno. Vallarta) and of David Montenegro, Jr. of the National Archives to the effect that his office had no copy of the document in question because the notary public might not have submitted a copy thereof; or that it was lost or destroyed during the transmittal; and that most of the record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno. Tecson), prove loss or destruction of the original and of all the duplicate original copies of the document in question." 8 We WHEREFORE, SO Narvasa, C.J., Feliciano, Regalado and Nocon, JJ., concur. find the decision no of the cogent Court of Appeals reason dated to November 27, 1987 rule is hereby otherwise. AFFIRMED. ORDERED.